* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 Because petitioner filed his petition before the enactment 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 from the 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 burglary, tampering with

evidence, and aggravated assault. He also pleaded no contest to a charge of

conspiracy to commit second degree murder. The trial court sentenced petitioner

to twenty-seven years’ imprisonment, to be followed by two years of parole.

In his habeas petition, petitioner argues that his trial counsel was

constitutionally ineffective for: (1) promising him 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 denied because petitioner’s

assertions were unsupported by any evidence except for his own testimony, and

his testimony contradicted his trial counsel’s testimony and the transcript from the
-3-

change of plea hearing on important points. In addition, the magistrate judge

found that the State had a very strong case against petitioner and his guilty plea

limited his exposure at sentencing for the murder charge. The district court

adopted the magistrate judge’s recommendation.

We review a claim of ineffective assistance of counsel 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 parties’ briefs and the record on

appeal. We find no error, and affirm for substantially the same reasons as those

set forth in the magistrate judge’s thorough and well-written proposed findings

and recommended disposition, a copy of which is attached.

We grant petitioner a certificate of probable cause. The judgment of the

United States District Court for the District of New Mexico is AFFIRMED.

Entered for the Court

James E. Barrett

Senior Circuit Judge
Attachment not available electronically.