* This order and judgment is not binding precedent, e xcept under the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

### FEB 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FLOYD BLACKBURN,

Petitioner-Appellant,

v. JOE R. WILLIAMS, Warden CNMCF; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 98-2093 (D.C. No. CIV 96-0738-MV/JHG)

(D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 We construe petitioner’s opening brief as a requestfor a certificate of

appealability, which must be granted before we may address the merits of his appeal. See 28 U.S.C. § 2253(c). -2- Petitioner Floyd Blackburn requests a certificate o f appealability to appeal the district court’s decision denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. 1 To be entitled to a certificate of appealability, petitioner must make “a substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). We conclude that he has failed to ma ke the required showing and therefore, deny the request and dismiss the appeal. Petitioner was charged in New Mexico state court wi th two counts of trafficking a controlled substance, with the first count occurring on October 4, 1994, and the second on October 13, 1994. As part of a plea agreement, he pled guilty in 1995 to count one in exchange for count t wo being dismissed. With an enhancement for being a habitual offender, he was s entenced to seventeen years in prison, four of which were suspended, followed b y two years of parole. He did not file a direct appeal, but did file a state habe as petition in 1995, which was denied. Petitioner filed the present habeas petition in the district court on May 29, 1996, contending that his conviction should be vacated because his counsel was ineffective in two ways. He claims that he was in jail on the day the drug sale charged in the second count occurred and that the u ndercover officer who-3-

allegedly purchased the drugs from him misidentifie d him as the seller. He contends that his counsel failed to investigate thi s defense to the second count, and that had he realized he had a complete defense to this count, he would not have pled guilty to the first count. He also conte nds that his counsel was ineffective for failing to challenge an unconstitut ionally suggestive pretrial photo identification by the undercover officer. Adopting the findings and recommendation of the magistrate judge, the distric t court held that petitioner had not shown that his counsel was ineffective and denied the petition without a hearing. The court also denied petitioner’s requ est for a certificate of appealability. To establish ineffective assistance of counsel, pet itioner must show that his counsel’s performance was so deficient that counsel was not performing to the level guaranteed by the Sixth Amendment, and that c ounsel’s deficient performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984). Because he pled guilty, petitioner’s ultim ate burden on the prejudice prong is to show that there is a reasonable probabi lity that had his counsel’s performance not been deficient, he would not have pled guilty. See Hill v. Lockhart , 474 U.S. 52, 59 (1985). Petitioner submitted an affidavit stating that he w as in jail on a parole violation on the date of the second count. He clai ms that because he never saw a-4-

copy of the criminal information charging him, he d id not know he had a defense to the second count, and his counsel was ineffectiv e for failing to investigate and discover the exculpatory evidence that would support that defense. The district court found that the record showed petitioner was n ot arrested on the parole violation until several weeks after the drug sale c harged in the second count. It also noted that the criminal information was read t o petitioner at his arraignment, that the undercover officer testified at the prelim inary hearing as to when the second count occurred, and that petitioner stated at the plea hearing that he understood the charges against him. Relying on Worthen v. Meachum , 842 F.2d 1179, 1184 (10th Cir. 1988), the district court con cluded that petitioner’s claim was “wholly incredible” and did not warrant an evidentiary hearing. See Lasiter v. Thomas , 89 F.3d 699, 703 (10th Cir. 1996). In the other part of his ineffective counsel claim, petitioner contends that his counsel was ineffective for failing to move to suppress the undercover officer’s out-of-court identification of him as unc onstitutionally suggestive. See Neil v. Biggers , 409 U.S. 188, 199-200 (1972). The officer had id entified him from a photograph after the second transaction, and also later identified him at the preliminary hearing. The court held that ev en had the one-photo identification been unduly suggestive, it was const itutionally permissible because the officer had ample opportunity to view petitione r during the sales, was-5-

attentive, had previously described petitioner accu rately, and was certain of the identification, and because the identification occu rred only four days after the second transaction. See id. The court concluded that counsel was not ineffect ive for failing to challenge this identification. On appeal, petitioner reargues his claims of ineffe ctive counsel. We have fully considered his arguments and reviewed the rec ord, and conclude, for substantially the same reasons as stated in the mag istrate judge’s report, that his arguments are without merit and that he has failed to make a substantial showing of the denial of a constitutional right. The appli cation for a certificate of appealability is therefore DENIED, and the appeal i s DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge