* This order and judgment is not binding precedent, e xcept under the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

### JUN 18 1998 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BURLON R. DAVIS,

Defendant-Appellant. No. 96-3293 (D.C. Nos. 96-CV-3114 & 89-CR-20081) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The district court denied a certificate of appealab ility, a prerequisite to

appeal under the then newly enacted Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). However, “since that time, . . . we have held that § 2255 movants who [like defendant] filed their applicatio ns with the district court prior to AEDPA’s effective date need not obtain a certifi cate of appealability to proceed in this court.” United States v. Alvarez , 137 F.3d 1249, 1250 n.2 (10th Cir. 1998). -2- Defendant Burlon R. Davis appeals from the denial o f his motion for post-conviction relief under 28 U.S.C. § 2255. See United States v. Davis , 939 F. Supp. 810 (D. Kan. 1996). We exercise jurisdiction under 28 U.S.C. § 1291 1
and affirm. The factual and procedural background is detailed i n the district court’s opinion and will not be repeated here. Defendant c hallenged his conviction for several drug trafficking offenses on the grounds of ineffective assistance of counsel and unconstitutional jury impanelment. Thedistrict court held defendant had not satisfied either the deficient-performance or prejudice requirements for his ineffective assistance claims, see generally Strickland v. Washington , 466 U.S. 668, 686-87 (1984), and did not establish any constitutional impropriety in connection with the selection of his jury. On appeal, defendant raises nine issues. He conten ds counsel should have been found ineffective for (1) failing to investigate and subpoena several witnesses; (2) failing to interview defendant to di scover and present the defense; (3) failing to cross-examine codefendants Dana Nels on and William Nelson Sr.;-3-

(4) failing to obtain an expert witness to take a v oice exemplar for comparison with voices on drug transaction tapes; (5) failing to object to admission of letters seized from defendant on the ground that his author ship of the letters was not proven and failing to present evidence to that effe ct; (6) failing to challenge the impaneling of an all-white jury; and (7) overall in adequate performance. He also argues the district court erred in holding that (8) his jury was constitutionally selected and impaneled and (9) an evidentiary heari ng was not warranted. Upon review of the post-conviction record and the transc ript of defendant’s criminal trial, we affirm. With respect to the issue of jury panel selection, and most of defendant’s ineffective assistance claims, we have nothing to a dd to the district court’s analysis. However, we note that defendant’s sustai ned insistence on his right to an evidentiary hearing has special import with resp ect to certain disputed allegations of counsel (mis)conduct which, involvin g matters outside the trial process, may not have been “conclusively” resolvabl e on “the files and records of the case” without a hearing pursuant to § 2255. See Machibroda v. United States , 368 U.S. 487, 494-95 (1962) (hearing necessary to r esolve factual disputes which “related primarily to purported occurrences outsidethe courtroom and upon which the record could, therefore, cast no real light”); Moore v. United States , 950 F.2d-4-

656, 661 (10th Cir. 1991) (hearing necessary when “ factual disputes and inconsistencies beyond the record exist”). To obviate this concern, we do not reach the extra- record facts regarding counsel’s conduct found by the district court. Ins tead, based on our review of the trial transcript, we agree with the district court’ s alternate conclusion that the government’s case against defendant was overwhelmin g, and, thus, “[d]efendant has simply not met his burden of showing ‘that the decision reached would reasonably likely have been different absent the alleged errors.’” Davis , 939 F. Supp. at 817 (quoting Strickland , 466 U.S. at 696). Accordingly, on this lack-of-prejudice rationale, we can confidently sayin accord with § 2255 that the “files and records of the case of the case” do “con clusively show that the [defendant] is entitled to no relief.” The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. Defendant’s motion for transcripts an d motion for stay are denied. Defendant’s motion for reimbursement of th e appellate filing fee--paid on threat of dismissal pursuant to a subsequently v acated assessment order, and contrary to defendant’s extant in forma pauperis st atus--is granted. The district-5-

court is hereby directed to refund the fee to defen dant’s prison account. Defendant’s renewed motion to proceed in forma paup eris is, accordingly, denied as moot. The mandate shall issue forthwith

Entered for the Court

Wade Brorby Circuit Judge