F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 10 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ALPHONSO DWANE FRAZIER, SR.,
Petitioner-Appellant,
v. No. 97-2314
(D.C. No. CIV-96-372-MV)
JOE WILLIAMS, Warden and (D. N.M.)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before KELLY , BARRETT , and HENRY , 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. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted 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This order and judgment is not binding precedent, except under the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.
Petitioner Alphonso Dwane Frazier, Sr. appeals from the denial of his
petition for habeas relief filed under 28 U.S.C. § 2254. We grant petitioner
a certificate of probable cause, 1
exercise jurisdiction under 28 U.S.C. § 1291,
and affirm.
Petitioner, a prisoner of the State of New Mexico, entered a plea of guilty
to charges of second degree murder, aggravated burglary, tampering with
evidence, and aggravated assault. He also pleaded no contest to a charge of
conspiracy to commit second degree murder. The trial court sentenced petitioner
to twenty-seven years’ imprisonment, to be followed by two years of parole.
In his habeas petition, petitioner argues that his trial counsel was
constitutionally ineffective for: (1) promising him a ten-year sentence,
(2) refusing to file a motion to withdraw his guilty plea as he requested,
(3) misrepresenting the sentence he would receive, and (4) failing to provide
effective representation at a critical stage of the proceeding. After a hearing, the
magistrate judge recommended that the petition be denied because petitioner’s
assertions were unsupported by any evidence except for his own testimony, and
his testimony contradicted his trial counsel’s testimony and the transcript from the
1
Because petitioner filed his petition before the enactment of the
Antiterrorism and Effective Death Penalty Act, the Act’s certificate of
appealability provisions do not apply. See United States v. Kunzman , 125 F.3d
1363, 1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998).
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change of plea hearing on important points. In addition, the magistrate judge
found that the State had a very strong case against petitioner and his guilty plea
limited his exposure at sentencing for the murder charge. The district court
adopted the magistrate judge’s recommendation.
We review a claim of ineffective assistance of counsel de novo, using the
two-prong test set out in Strickland v. Washington , 466 U.S. 668, 687-89 (1984).
See Hoxsie v. Kerby , 108 F.3d 1239, 1245 (10th Cir.), cert. denied , 118 S. Ct.
126 (1997). We have thoroughly reviewed the parties’ briefs and the record on
appeal. We find no error, and affirm for substantially the same reasons as those
set forth in the magistrate judge’s thorough and well-written proposed findings
and recommended disposition, a copy of which is attached.
We grant petitioner a certificate of probable cause. The judgment of the
United States District Court for the District of New Mexico is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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Attachment not available electronically.