UNITED STATES COURT OF APPEALS
Filed 5/17/96
FOR THE TENTH CIRCUIT
DAVID CARTER,
Petitioner-Appellant,
v. No. 95-2168
(D.C. No. CIV-93-1078-JP)
JOHN THOMAS; ATTORNEY (D. N.M.)
GENERAL OF THE STATE OF NEW
MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before PORFILIO, JONES,** and TACHA, 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.
*
This order and judgment is not binding precedent, except under the doctrines of law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.
**
Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.
Petitioner appeals from the district court’s dismissal of his petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254. Petitioner continues to contend on appeal that
(1) he was denied his right to effective assistance of counsel when neither of his two court
appointed attorneys conducted an adequate investigation of his criminal charges and (2) his
guilty plea was coerced and involuntary in violation of his right to effective assistance of
counsel. We affirm.
Petitioner was convicted, after pleading guilty, to distribution of cocaine. He was
sentenced to nine years of imprisonment, the maximum prison term allowable. Pursuant to
the plea agreement, charges for distribution of cocaine pending in Colorado were dismissed
on the condition that he pay $700 restitution to the State of Colorado within three years of
the plea. Petitioner filed a petition for writ of habeas corpus in state district court. The state
district court denied relief, and the New Mexico Supreme Court denied petitioner’s petition
for a writ of certiorari. Thereafter, petitioner filed for habeas corpus relief in the district
court. After holding an evidentiary hearing at which petitioner and his two attorneys
testified, the magistrate judge recommended that the petition be dismissed. The district court
adopted the magistrate judge’s recommendation.
We review a district court’s legal conclusions in dismissing a petition for writ of
habeas corpus de novo. Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993). “[M]ixed
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questions of law and fact [also] are reviewed de novo, although findings of fact underlying
mixed questions are accorded the presumption of correctness.” Manlove v. Tansy, 981 F.2d
473, 476 (10th Cir. 1992).
Petitioner first argues that he was denied effective assistance of counsel because
neither of his court appointed attorneys investigated the charges pending against him in New
Mexico or Colorado. “A claim of ineffective assistance of counsel presents a mixed question
of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th
Cir. 1995), cert. denied, 116 S. Ct. 936 (1996). When a petitioner alleges a claim of
ineffective assistance of counsel, he must show both that counsel’s performance was
deficient and that the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In order to show deficient performance, the
petitioner must prove that counsel’s performance fell below an objective standard of
reasonableness, considering all the circumstances. Id. at 687-88. Specifically, with regard
to a claim of failure to investigate, the courts must determine, based on all the circumstances
and giving deference to counsel’s judgment, whether counsel fulfilled his duty to make
reasonable investigations or to make a reasonable determination such investigations were
unnecessary. Id. at 691. To satisfy the prejudice requirement, a petitioner must show there
is a reasonable probability that but for counsel’s errors he would not have pleaded guilty and
would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
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During the course of the New Mexico criminal case, petitioner was represented by two
attorneys. At the evidentiary hearing, Mr. Titus, who first represented petitioner until
petitioner expressed dissatisfaction with him, testified that he did not complete his
investigation and further investigation was necessary before he could have advised petitioner
on whether to plead guilty. Mr. Murphy, who replaced Mr. Titus, testified that he had read
the police reports regarding the New Mexico charges and spoke with petitioner and an
attorney representing a co-defendant. Because petitioner’s version of the facts concerning
the New Mexico charges was the same as that of the police, Mr. Murphy believed there was
no need for further investigation unless he was going to trial. Because petitioner gave Mr.
Murphy reason to believe that pursuing further investigation of the New Mexico charges
would be fruitless, Mr. Murphy’s failure to investigate was not unreasonable. See Strickland,
466 U.S. at 691; cf. United States v. Snyder, 787 F.2d 1429, 1433 (10th Cir.)(exercise of
professional judgment not to interview witnesses and rely on other sources of information
not ineffective assistance of counsel), cert. denied, 479 U.S. 836 (1986). Mr. Murphy
admitted that he conducted no investigation of the Colorado charges other than to talk to
petitioner. Although petitioner complains that there was no investigation of the Colorado
charges, he fails to indicate what favorable evidence an investigation would have shown, or
that further investigation would have led counsel to change his recommendation to petitioner
to plead guilty, see Hill, 474 U.S. at 59.
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Considering all the circumstances, counsel’s decision not to investigate further was
reasonable. See Strickland, 466 U.S. at 688. Because counsel’s performance was not
constitutionally deficient, id. at 687-88, petitioner’s claim of ineffective assistance of counsel
for failure to investigate fails.
Petitioner next argues that his guilty plea was coerced and involuntary due to
ineffective assistance of counsel. According to petitioner, he had insisted to both counsel
that he wished to be tried by a jury, but counsel became angry and he felt compelled to plead
guilty.
Whether a guilty plea is voluntary is a question of federal law, Parke v. Raley, 506
U.S. 20, 35 (1992), reviewable de novo, Laycock v. New Mexico, 880 F.2d 1184, 1186 (10th
Cir. 1989). “The longstanding test for determining the validity of a guilty plea is ‘whether
the plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.’” Hill, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. 25,
31 (1970)). “A guilty plea entered upon the advice of counsel is invalid if the plea was
coerced, or if the advice of [petitioner’s] counsel was not within the range of competence
demanded of attorneys in criminal cases.” United States v. Carr, 80 F.3d 413, 416 (10th Cir.
1996)(citations omitted).
Petitioner admits that at the time of plea he stated that his plea was voluntary and that
he knew he was giving up his right to a trial. See also Laycock, 880 F.2d at 1186-87
(“‘Solemn declarations in open court carry a strong presumption of verity.’” (quoting United
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States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988)). However, he now claims his
concerns about Mr. Murphy’s unpreparedness for a trial forced him to plead guilty.
Petitioner also maintains Mr. Murphy promised him he would receive a more favorable
sentence without a fine and avoid a Colorado prosecution and conviction and more prison
time if he pled guilty. The record does not support petitioner’s assertion that his plea was
coerced. Petitioner’s assertion and his testimony at the evidentiary hearing that his plea was
coerced were merely conclusory. He did not prove Mr. Murphy materially misrepresented
the consequences of the plea. Id. at 1186. Accordingly, this claim of ineffective assistance
of counsel also fails.
The judgment of the United States District Court for the District of New Mexico is
AFFIRMED. We construe petitioner’s notice of appeal as a request for a certificate of
probable cause, see Fed. R. App. P. 22(b), and GRANT the request.
Entered for the Court
John C. Porfilio
Circuit Judge
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