* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### DEC 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. PETER BASS,

Defendant - Appellant. No. 98-8049 (D. Ct. No. CV-180-D) (D. Wyo.)

ORDER AND JUDGMENT *

Before TACHA , MCKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. Defendant brings this pro se appeal pursuant to 28 U.S.C. § 2255. Defendant appeals the order of the district court d enying defendant’s motion to vacate, set aside, or correct defendant’s sentence, and therefore denying his- 2 -

petition for a writ of habeas corpus under the prov isions of 28 U.S.C. § 2255. The district court further denied a certificate of appealability and refused to grant defendant the right to appeal in forma pauperis. In this appeal, the defendant seeks a certificate o f appealability authorizing him to appeal pursuant to the provisions of the Ant iterrorism and Effective Death Penalty Act (AEDPA). We decline to grant the certi ficate of appealability and agree with the district court that defendant is notentitled to proceed in forma pauperis. In his § 2255 petition defendant claims that: (1) his sentence exceeds the statutory maximum; (2) that he was not advised of the effects of revocation of supervised release or of acceptance of the plea agr eement; and (3) that he received ineffective assistance of counsel. Defend ant’s claims all arise out of defendant’s arguments related to his understanding of the effects of the plea agreement and the effects of revocation of supervis ed release. It appears to be undisputed that during the plea negotiations there was a misunderstanding of the parties with respect to the application of the care er offender provisions of the United States Sentencing Guidelines as they would b e applied in defendant’s case. The record is clear, however, that defendant was fu lly advised in his change of plea hearing on September 18, 1995, as to the lengt h of the minimum or maximum sentence that could be imposed and that none of thi s colloquy was negated or- 3 -

invalidated by a later clarification of the applica bility of the career offender provisions. Defendant’s sentence of ten years impr isonment and eight years of supervised release did not exceed the statutory max imum sentence. Defendant was fully advised with respect to the statutory pen alty. Further, the record makes clear that defendant was advised in an addendum to the plea agreement that supervised release would be imposed. Where the cou rt failed to advise defendant of the effects of revocation of supervised release, defendant must show that such failure affected his substantial rights. Defendanthas failed to make that showing. Indeed, on this record defendant has failed to showin any way that he would not have pleaded guilty had he been informed of the eff ects of supervised release. The district court gave defendant an opportunity to withdraw his plea because of the misunderstanding regarding the applicability of the career offender provisions of the Sentencing Guidelines. Defendant chose not to withdraw his plea. This record reveals no basis on which to determine that had the effects of revocation of supervised release been explained to him, defendantwould have refused to plead guilty. Defendant further appeals on the grounds that he wa s denied effective assistance of counsel at both the trial level and o n direct appeal where counsel failed to properly inform defendant of the conseque nces of his guilty plea and failed to raise this issue on direct appeal. It is well settled in this circuit that- 4 -

issues of ineffective assistance of trial or appell ate counsel should not be raised on direct appeal but should be raised in a § 2255 p roceeding. Thus, we cannot say that appellate counsel was ineffective for fail ing to raise the ineffectiveness claim on direct appeal. After reviewing this recor d, we cannot say that either trial counsel nor appellate counsel rendered ineffective assistance to defendant. Defendant has failed to show that the performance o f either attorney prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 691 (1984). Defendant’s claims with regard to ineffective assis tance of counsel relate to the alleged failure of counsel to object to or call att ention to alleged Rule 11 errors that occurred at the change of plea hearing and at the sentencing hearing. The record fails to reveal that there were any substant ial substantive errors that would give rise to a claim of ineffective assistance in t he conduct of the proceedings. Further, defendant has failed to demonstrate that h e would have insisted upon going to trial or would have withdrawn his guilty p lea but for the alleged deficiencies of counsel. As noted above, defendantwas given the opportunity to withdraw his plea and to proceed to trial. The rec ord is clear that after having reviewed the presentence report, consulted with add itional attorneys, and consulted with his counsel of record, defendant ele cted to persist in his guilty plea. Thus, we cannot say that the performance of trial counsel prejudiced defendant’s defense. Further, because the allegati ons related to ineffectiveness of- 5 -

trial counsel failed to show prejudice to the defen dant, we cannot say that appellate counsel was deficient in failing to raise alleged Rule 11 violations on appeal. We find that defendant has failed to raise issues t hat are debatable among jurists, that a court could resolve the issues diff erently, or that the questions deserve further proceedings. United States v. Sistrunk , 111 F. 3d 91, 91 (10th Cir. 1997). We deny the certificate of appealabili ty. We deny the motion to proceed in forma pauperis pursuant to the provision s of Fed. R. App. P. 24. The appeal is dismissed. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge