* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

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

### DEC 22 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALFONSO THOMAS, JR., Petitioner-Appellant, vs. STEVE HARGETT, Respondent-Appellee. No. 97-6089 (D.C. No. CIV-96-964-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges. **

Petitioner-appellant, Alfonso Thomas, Jr., appeals from the denial of his habeas petition, 28 U.S.C. 2254, and seeks a certif icate of appealability, 28 U.S.C. § 2253(c)(1). He claims ineffective assistance of trial and appellate counsel regarding plea proceedings and a failure to advise him of the elements of the underlying offenses.- 2 - Background At the age of 18, Mr. Thomas entered blind pleas intwo cases that were consolidated for purposes of pleas and sentencing. Mr. Thomas was 17 years old at the time of the offenses. In CF-89-400, he plea d guilty to first degree robbery, receiving a 15-year sentence. In CF-89-5838, he pl ead guilty to first degree robbery, first degree burglary, unauthorized use of a motor vehicle, and kidnaping for purposes of extortion, receiving 35-, 20-, 5- and 35-year sentences, respectively. The sentences in CF-89-5838 ran conc urrently, but consecutively to that in CF-89-400, resulting in an effective senten ce of 50 years. The day after sentencing, Mr. Thomas unsuccessfully moved to with draw his pleas. That denial was later upheld by the Oklahoma Court of Criminal Appeals, which allowed Mr. Thomas to file a certiorari petition out of time. Mr. Thomas then filed his first federal habeas peti tion which was dismissed for failure to exhaust state remedies. Thereafter, his state application for postconviction relief was denied, the Oklahoma Court of Criminal Appeals holding that his pleas were knowing and voluntary, and thathis claim of inadequate advice as to the elements of the offenses was barre d by res judicata. See I R. doc. 1, attach. (No. PC 95-1428). That court also held that his claims of ineffective assistance of counsel were waived, not having been raised on direct appeal. See id. Mr. Thomas filed this second federal habeas petit ion on June 17, 1996.- 3 - Discussion The state defended on the sole ground that Mr. Thom as’s second petition was barred by the one-year limitation period in 28 U.S.C. § 2244(d)(1). Because the instant petition was filed within one year of the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act, the state’s theory lacks merit.
See United States v. Simmonds , 111 F.3d 737, 745 (10th Cir. 1997). Moreover, in light of Brecheen v. Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994), cert. denied , 515 U.S. 1135 (1995), Mr. Thomas’s claims of inef fective assistance of counsel are not procedurally barred and may be cons idered on the merits, despite a failure to raise them on direct appeal. See Brewer v. Reynolds , 51 F.3d 1519, 1522 (10th Cir. 1995), cert. denied , 116 S. Ct. 936 (1996). The predicate of all Mr. Thomas’s claims is that he was promised a ten-year sentence by his attorney if he entered a plea in bo th cases. Mr. Thomas contends that his mother dismissed the attorney prior to the plea, yet the attorney insisted that he could not be dismissed. We have carefully reviewed the state court transcript and it is completely inconsistent with the version that Mr. Thomas now claims. Moreover, given that the pleas and sentenc ings in both cases occurred simultaneously, it is noteworthy that Mr. Thomas on ly challenges the longer sentence in CF-89-5838, and not the sentence in CF- 89-400. Both were a product of the same attorney’s representation. Although ou r review of whether a state- 4 -

court plea is knowing and voluntary is de novo, we defer to the state court’s findings unless unreasonable “in light of the evide nce presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see Marshall v. Lonberger , 459 U.S. 422, 431-32 (1983). Mr. Thomas has not come forward with sufficient grounds to undermine the state court’s findings and overcome the strong presumption that his statements during the plea hearings were truthful. See Blackledge v. Allison , 431 U.S. 63, 74 (1977); Lasiter v. Thomas , 89 F.3d 699, 702-03 (10th Cir.), cert. denied , 117 S. Ct. 493 (1996). The fact that the trial c ourt did not recite the elements of each crime does not render the plea inv oluntary where (a) counsel had discussed the plea with Mr. Thomas, (b) the plea pr oceedings contain Mr. Thomas’s factual recitations by affidavit of the ev ents giving rise to the charges, and (c) the plea colloquy contains further admissio ns, thereby indicating that Mr. Thomas understood the charges and their consequence s. See Henderson v. Morgan , 426 U.S. 637, 646-47 (1976); Bonvillain v. Blackb urn , 780 F.2d 1248, 1250 (5th Cir.), cert. denied , 476 U.S. 1143 (1986). The claim of ineffective assistance of counsel at t he trial level must likewise fail. To prove ineffective assistance of counsel in the context of a guilty plea, Mr. Thomas must show deficient performance bytrial counsel that prejudiced him--that “there is a reasonable probabi lity that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to1 Grounds not raised below are normally waived. See United States v.

Cook , 997 F.2d 1312, 1316 & n.4 (10th Cir. 1993). In h is appellate brief, Mr. Thomas asserts that inadequate evidence in the reco rd exists to support a finding of competence. The record establishes that compete ncy was raised at the plea hearing, but because Mr. Thomas had been previouslyadjudicated competent in another proceeding, no hearing was held. See gener allyUnited States v. Williams , 113 F.3d 1155, 1159-60 (10th Cir. 1997); Williams on v. Ward , 110 F.3d 1508, 1514-1521 (10th Cir. 1997); Sena v. New Mexico State Prison , 109 F.3d 652, 654-55 (10th Cir. 1997). We express no o pinion on this issue because it is not properly before us. - 5 - trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985); Strickland v. Washington , 466 U.S. 668, 694 (1984). Our review of the district c ourt’s decision on ineffective assistance is de novo. See Nickel v. Hannigan , 97 F.3d 403, 408 (10th Cir. 1996), cert. denied , 117 S. Ct. 1112 (1997). Mr. Thomas has identified several generic deficienc ies with counsel’s performance including counsel’s alleged (1) conflic t of interest because counsel had been terminated, (2) instructions to Mr. Thomas concerning the plea hearing, (3) failure to investigate and present evidence, (4 ) failure to initiate plea bargain negotiations, (5) failure to prepare for the withdr awal of plea hearing, (6) failure to adequately confer with Mr. Thomas prior to the h earings, and (7) failure to challenge the competency of Mr. Thomas. 1 Given the grounds raised in Mr. Thomas’s petition regarding his ineffectiveness cla im, see I R. doc. 1, we resolve this case on the prejudice prong, Strickland , 466 U.S. at 687, and nothing in the record suggests that Mr. Thomas would have preferre d a trial to the pleas he- 6 -

entered. To the contrary, Mr. Thomas faced very se rious charges with potential life sentences. The plea colloquy suggests that he did not want to appear before a jury having previously been adjudicated competent b y a jury. The basis of Mr. Thomas’s effort to withdraw his plea, the unlikely possibility that a convicted and incarcerated coparticipant would testify that Mr. T homas was not the ringleader, simply pales in contrast to the overwhelming eviden ce of guilt given his admissions and the State’s proffer concerning his i nvolvement in the crimes. Mr. Thomas also argues that appellate counsel was i neffective because he failed to pursue issues obvious from the record, namely (1) ineffective assistance of trial counsel, (2) lack of competency to enter aplea, (3) lack of a voluntary and intelligent plea, and (4) multiplicity of the offen ses in CF-89-5838 were multiplicitous because under Oklahoma law only a si ngle offense was involved. With respect to appellate counsel, only issue (3) w as asserted below, see I R. doc. 1 (“Ground Five”), and thus it is all that we consi der. See Radmacher v. Colorado Ass’n of Soil Conservation Dists. Med. Ben efit Plan , 11 F.3d 1567, 1571-72 (10th Cir. 1993); Cook , 997 F.2d at 1316 & n.4. We have rejected the claim that Mr. Thomas’s plea was not knowing and vo luntary given the federal grounds relied upon in the petition. Thus, Mr. Tho mas suffered no prejudice and the claim must be rejected. Because Mr. Thomas has not made “a substantial show ing of the denial- 7 -

of a constitutional right” given the grounds contai ned in his petition, we DENY a certificate of appealability and DISMISS the appeal

.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge