                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             OCT 25 2000
                             FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

    UNITED STATES OF AMERICA ,

                Plaintiff-Appellee,

    v.                                                     No. 00-3004
                                                   (D.C. Nos. CR-95-20066-01 &
    KENNETH L. THOMPSON,                                 CV-98-3256-GTV)
                                                             (D. Kan.)
                Defendant-Appellant.


                                 ORDER AND JUDGMENT         *




Before BALDOCK, ANDERSON,                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(G). The case is therefore

ordered submitted without oral argument.

         Petitioner Kenneth L.    Thompson appeals from an order of the district court

denying his motion filed pursuant to 28 U.S.C. §      2255 . We affirm.



*
      This order and judgment is not binding precedent, except under the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.
       Thompson was convicted by a jury of two counts of possession of

methamphetamine with intent to distribute. His conviction was affirmed on

appeal. Although denying Thompson’s §         2255 motion, the district court granted a

certificate of appealability on the issues of whether Thompson was denied

effective assistance of counsel and whether the court erred in denying his motion

without an evidentiary hearing.

       “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.”   United States v. Pearce , 146 F.3d 771,

774 (10th Cir. 1998). We will grant relief if we determine that “the judgment was

rendered without jurisdiction, or that the sentence imposed was not authorized by

law or otherwise open to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.”     28 U.S.C. § 2255.

       To establish ineffective assistance of counsel, Thompson must demonstrate

both that his attorney’s representation was deficient and that he was prejudiced by

that deficiency.   See Strickland v. Washington , 466 U.S. 668, 687 (1984). There

is a strong presumption that counsel provided effective assistance.     See id. at 689 .




                                             -2-
       Thompson posits that counsel erred by not requesting a lesser included

offense instruction.   1
                           We use a four-part test to determine whether a lesser

included offense instruction should have been given, looking at whether: “(1)

there was a proper request; (2) the lesser included offense includes some but not

all of the elements of the offense charged; (3) the elements differentiating the two

offenses are in dispute; and (4) a jury could rationally convict the defendant of

the lesser offense and acquit him of the greater offense.”       United States v.

McGuire , 200 F.3d 668, 673 (10th Cir. 1999) (quotation omitted).

       Upon review of the materials presented to us, we agree with the district

court that Thompson cannot make the required showing. Even if we were to

accept Thompson’s allegations regarding counsel’s alleged errors as true,

Thompson cannot establish prejudice.        See Fox v. Ward , 200 F.3d 1286, 1295

(10th Cir.) (“An ineffective assistance claim may be resolved on either

performance or prejudice grounds alone.”),         cert. denied, ___ S. Ct. ___, 2000 WL

1281480 (U.S. Oct. 10, 2000) (No. 00-5995).          Thompson cannot meet the fourth

prong of showing that a rational jury could have found him guilty only of



1
       In his motion to the district court, Thompson also alleged ineffective
assistance based on counsel’s failure to request a jury instruction on the
voluntariness of his self-incriminating statement and misrepresentation to him
regarding the offer of a plea bargain during jury negotiations. Thompson does not
advance these issues on appeal and we do not address them.     See State Farm Fire
& Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                             -3-
possession of methamphetamine and not intent to distribute. The evidence before

the jury was such that it could not rationally have convicted him of the lesser

offense of possession.

      Thompson argues that the district court erred by not holding an evidentiary

hearing. An evidentiary hearing is not required if “the motion and files and

records of the case conclusively show that the prisoner is entitled to no relief.”

United States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996) (quotations omitted).

Although the proferred affidavits set forth disputed facts which could bring into

question whether counsel’s representation was deficient, these facts are not

material because Thompson    cannot establish the second   Strickland prong. The

district court did not err in not holding an evidentiary hearing.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED for substantially the reasons stated by the district court in its order

of July 14, 1999.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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