* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 5 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RAFAEL ANTONIO HERRERA, Defendant-Appellant. No. 97-6235 (D.C. No. CIV-96-1811-T) (D.C. No. CR-92-209-T) (W.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBYand BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.1 Mr. Herrera has not placed the Presentence Report in the record on

appeal. It appears undisputed, however, that the R eport recommended attributing almost fifteen kilos of crack cocaine to Mr. Herrer a as a result of his participation in the charged conspiracy, which would produce a se ntence under the guidelines of life in prison. -2- Rafael Antonio Herrera brought this action under 28 U.S.C. § 2255 asserting that he was denied effective assistance o f counsel and his right to due process in connection with his guilty plea. The di strict court denied relief, ruling that his claims are in essence the same ones he rai sed on direct appeal and that they therefore may not be reasserted in this procee ding. The court also denied Mr. Herrera’s request for a certificate of appealab ility as required by 28 U.S.C. § 2253(c)(1)(B). We deny his request as well and dis miss his appeal. Mr. Herrera was charged in a one-count indictment w ith conspiracy to possess with intent to distribute “cocaine (powder) and/ or cocaine base (crack).” Aplt. App. at 2. After a jury had been selected, h e decided to change his plea. A Rule 11 hearing was held, at which Mr. Herrera ente red a guilty plea and agreed that the amount of cocaine involved was between fiv e and fifteen kilos. Upon receiving a copy of the Presentence Report, 1 however, Mr Herrera again changed his mind and moved at sentencing to withdraw his pl ea. The court held an evidentiary hearing to address Mr. Herrera’s claim that when he pled guilty, he believed he was pleading only to a conspiracy invol ving cocaine powder. After the hearing, and upon reviewing the record of the g uilty plea proceedings and the-3-

briefs filed by the parties, the district court den ied the motion, holding that “the record is very clear that defendant was specificall y aware of the charge in the indictment, that cocaine and/or cocaine base were the substances that were the subject of the conspiracy, and the maximum possible punishment -- life imprisonment -- for his plea of guilty to that char ge.” Id. at 56. Mr. Herrera argued on appeal that his plea was involuntary because of his belief that only cocaine powder was involved. We rejected that argu ment, concluding the district court had not abused its discretion in finding thatMr Herrera “knew that the maximum sentence for the crime for which he pled gu ilty was life, [and] that he pled guilty to a conspiracy relating to ‘cocaine an d/or cocaine base.’” United
States v. Herrera , No. 93-6100, 1994 WL 36766 (10th Cir. Feb. 8, 199 4). Mr. Herrera then brought this section 2255 petition , asserting inter alia that he was denied the effective assistance of counsel i n deciding whether to plead guilty because his counsel misled him with respect to the crime to which he was pleading and the sentence he would receive. Mr. He rrera asserted he would have insisted on going to trial had his counsel properlyadvised him. The district court held that these claims “are thinly disguised versio ns” of the issues raised in Mr. Herrera’s direct appeal. We agree. Whether Mr. He rrera’s guilty plea was involuntary was resolved after an evidentiary heari ng in the prior proceeding and affirmed on direct appeal. An ineffective assistan ce claim may only be raised-4-

after a guilty plea if the plea was involuntary as a result of counsel’s ineffectiveness. See generallyHill v. Lockhart , 474 U.S. 52 (1985). This court’s prior holding that the plea was voluntary is thus d ispositive of Mr. Herrera’s claim of incompetent counsel. We accordingly conclude that Mr. Herrera has failedto make “a substantial showing of the denial of a constitutional right,” 2 8 U.S.C. § 2253(c)(2), and his appeal is DISMISSED

. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge