F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 3 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
LLOYD DUANE SHEPHARD,
Defendant-Appellant,
No. 97-3256
v. (District of Kansas)
(D.C. No. 94-CR-10046)
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
This case is before the court on petitioner Lloyd D. Shepard’s motion for a
certificate of appealability brought pursuant to 28 U.S.C. § 2253(c)(1)(B).
*
This order and judgment is not binding precedent, except under the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.
Shepard requests the certificate so that he can appeal the district court’s denial of
his 28 U.S.C. § 2255 motion. Because Shepard has failed to make “a substantial
showing of the denial of a constitutional right,” we deny the request for a
certificate of appealability and dismiss the appeal.
Shepard filed a motion to vacate or set aside his sentence pursuant to 28
U.S.C. § 2255 on April 23, 1997. As grounds for the motion, Shepard alleged
that his attorney had been constitutionally ineffective in numerous particulars and
that his guilty plea was not knowing and voluntary. The district court denied the
§ 2255 motion in a thorough and well-reasoned memorandum and order on July 3.
After the district court denied Shepard a certificate of appealability, Shepard filed
a motion for a certificate in this court. In his motion for a certificate of
appealability before this court, Shepard abandoned many of the issues raised
below and limited his issues on appeal to the following: (1) his counsel
erroneously informed him that he could not appeal his conviction; and (2) his plea
was not knowing and voluntary because he entered the plea based solely on the
government’s promise to drop and 18 U.S.C. § 924(c) weapons charge, a charge
Shepard contends the government could not prove after the Supreme Court’s
decision in United States v. Bailey, 116 S. Ct. 501 (1995).
The district court rejected Shepard’s claim of ineffective assistance of
counsel on the following grounds:
-2-
In accordance with the court’s directive to respond to the allegations
of ineffectiveness, defense counsel has submitted certain materials,
including correspondence that he sent to the defendant. One such
letter shows that counsel advised the defendant that he believed there
were no grounds for a valid appeal and that any appeal would likely
be unsuccessful. He expressly informed the defendant, however, that
“you have the right to file an appeal” and that it had to be filed
within ten days of entry of judgment. Additionally, the transcript of
the sentencing hearing in this case shows that the court informed
defendant that he had the right to appeal the sentence, subject to the
provisions of 18 U.S.C. § 3742. Thus, the record shows that
defendant was advised of his right to appeal.
As to Shepard’s claim that his plea was not knowing and voluntary, the district
court noted that Shepard does not dispute that at the time of the plea hearing he
fully understood the nature of the charges and understood the consequences of
pleading guilty to the reduced charges in the superseding indictment.
Furthermore, Shepard does not dispute that he committed the acts set out in the
superseding indictment and no threats or promises were made to get him to enter a
plea of guilty. Finally, the Supreme Court had rejected arguments similar to those
advanced by Shepard in Brady v. United States, 397 U.S. 742 (1970).
This court has reviewed de novo Shepard’s motion for a certificate of
probable cause and brief on appeal, the district court’s memorandum order dated
July 3, 1997, and the entire record on appeal. Based on that review, we conclude
that the district court’s resolution of the issues advanced by Shepard is not
debatable among jurists of reason or subject to resolution by courts in a different
manner. Barefoot v. Estelle, 463 U.S. 893 (1983). Accordingly, Shepard has not
-3-
made a substantial showing of the denial of a constitutional right and is thus not
entitled to a certificate of appealability. 28 U.S.C. § 2253(c).
Shepard’s motion for a certificate of appealability is DENIED and the case
is DISMISSED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
-4-