* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; 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 

### JUL 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
ALPHONSO DWANE FRAZIER, SR.,

Petitioner-Appellant,

v. JOE WILLIAMS, Warden and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 97-2314 (D.C. No. CIV-96-372-MV) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because petitioner filed his petition before the en actment of the

Antiterrorism and Effective Death Penalty Act, the Act’s certificate of appealability provisions do not apply. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998). -2- Petitioner Alphonso Dwane Frazier, Sr. appeals fromthe denial of his petition for habeas relief filed under 28 U.S.C. § 2254. We grant petitioner a certificate of probable cause, 1 exercise jurisdiction under 28 U.S.C. § 1291, and affirm. Petitioner, a prisoner of the State of New Mexico, entered a plea of guilty to charges of second degree murder, aggravated burg lary, tampering with evidence, and aggravated assault. He also pleaded no contest to a charge of conspiracy to commit second degree murder. The tri al court sentenced petitioner to twenty-seven years’ imprisonment, to be followedby two years of parole. In his habeas petition, petitioner argues that his trial counsel was constitutionally ineffective for: (1) promising hi m a ten-year sentence, (2) refusing to file a motion to withdraw his guilty plea as he requested, (3) misrepresenting the sentence he would receive, and (4) failing to provide effective representation at a critical stage of the proceeding. After a hearing, the magistrate judge recommended that the petition be d enied because petitioner’s assertions were unsupported by any evidence except for his own testimony, and his testimony contradicted his trial counsel’s test imony and the transcript from the-3-

change of plea hearing on important points. In add ition, the magistrate judge found that the State had a very strong case againstpetitioner and his guilty plea limited his exposure at sentencing for the murder c harge. The district court adopted the magistrate judge’s recommendation. We review a claim of ineffective assistance of coun sel de novo, using the two-prong test set out in Strickland v. Washington , 466 U.S. 668, 687-89 (1984). See Hoxsie v. Kerby , 108 F.3d 1239, 1245 (10th Cir.), cert. denied , 118 S. Ct. 126 (1997). We have thoroughly reviewed the partie s’ briefs and the record on appeal. We find no error, and affirm for substanti ally the same reasons as those set forth in the magistrate judge’s thorough and we ll-written proposed findings and recommended disposition, a copy of which is att ached. We grant petitioner a certificate of probable cause . The judgment of the United States District Court for the District of Ne w Mexico is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit JudgeAttachment not available electronically.