                      UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT



 GARY ZANE BEAVERS,

               Petitioner-Appellant,

 v.                                                        No. 01-6224

 JAMES L. SAFFLE,

               Respondent-Appellee.


                                         ORDER
                                   Filed June 25, 2002


Before HENRY , ANDERSON , and LUCERO , Circuit Judges.


       This matter is before the court on appellant’s petition for rehearing.

       The materials submitted by appellant have been reviewed by the members of

the hearing panel. The petition in granted in part. The order and judgment is

revised to comply with this court’s opinion in   Miller v. Champion , 262 F.3d 1066,

1071 (10th Cir. 2001),   cert. denied , 122 S. Ct. 1092 (2002). Other than this

revision, the order and judgment and disposition remain the same, and, with the

exception of the change referred to above, the petition for rehearing is denied.

       The petition for rehearing en banc was transmitted to all of the judges of the

court who are in regular active service as required by Fed. R. App. P. 35. As no
member of the panel and no judge in regular service on the court requested that the

court be polled, the en banc petition is denied.

                                                       Entered for the Court
                                                       PATRICK FISHER, Clerk




                                                    By:
                                                      Deputy Clerk




                                          -2-
                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAY 16 2002
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    GARY ZANE BEAVERS,

    Petitioner-Appellant,

    v.                                                    No. 01-6224
                                                    (D.C. No. 97-CV-1401-A)
    JAMES L. SAFFLE,                                      (W.D. Okla.)

    Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before HENRY , ANDERSON , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Gary Zane Beavers appeals from the judgment of the district court denying

his petition for habeas corpus brought under 28 U.S.C. § 2254. Because we agree




*
      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.
with the district court that Mr. Beavers has failed to demonstrate he was prejudiced

by his trial counsel’s allegedly unreasonable representation, we affirm.

      Mr. Beavers pled guilty to first degree murder in Oklahoma district court and

was sentenced to life imprisonment. After numerous state court proceedings, Mr.

Beavers filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the

federal district court. Finding his claims to be procedurally barred, the district

court denied relief. On appeal, we affirmed in part, but reversed and remanded for

an evidentiary hearing on Mr. Beavers’ claim of ineffective assistance of counsel.

Beavers v. Saffle , 216 F.3d 918, 925 (10th Cir. 2000). On remand, the district court

found that Mr. Beavers had failed to establish prejudice as a result of his counsel’s

alleged deficient performance and denied the petition but granted a certificate of

appealability. This appeal followed.

      Because Mr. Beavers’ claim was not decided on the merits by the state court,

and the “district court made its own determination in the first instance, we review

the district court’s conclusions of law   de novo and its findings of fact for clear

error.” LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999).

      In his first habeas appeal, Mr. Beavers argued he had received ineffective

assistance of counsel when his attorney informed him that, if he pled guilty to first

degree murder, it would be ten to twelve years before he “made” parole.

Mr. Beavers presented an affidavit from his trial counsel stating that such

information was wrong at the time of the affidavit and wrong when given and


                                             -2-
that the correct information would have been that it would take twenty-two and

one-half years before Mr. Beavers could “make” parole on a life sentence. Relying

on the twenty-two and one-half year figure and citing cases holding that “gross

misadvice concerning parole eligibility can amount to ineffective assistance of

counsel,” Beavers , 216 F.3d at 925 (quotation omitted and collecting cases), this

court concluded that “[i]f the facts alleged by Mr. Beavers are true, he would be

entitled to relief under 28 U.S.C. § 2254(d)(1).”          Id. We therefore remanded for an

evidentiary hearing noting, “[i]f the court determines that Mr. Beavers’ factual

allegations are uncontested or true and he was denied the effective assistance of

counsel, then it must order an appropriate remedy. Oklahoma can either retry Mr.

Beavers within a reasonable period of time, or reduce his sentence so as to provide

parole eligibility within ten to twelve years.”         Id. at 926.

      On remand, the district court held an extensive evidentiary hearing at which

it was established that the proper date for parole eligibility, given Mr. Beavers’

sentence, would have been fifteen years. No one at the hearing could determine

how Mr. Albert, Mr. Beavers’ now-deceased attorney, had arrived at the twenty-two

and one-half year figure. Proceeding on the basis that Mr. Beavers would be

eligible for parole after serving fifteen years, the district court made several

findings.

      Initially, the court considered Mr. Beavers’ claim that he had been told he

would “make” parole after ten to twelve years, and that he understood that


                                                  -3-
information to mean he would be released from prison after serving ten to twelve

years, not that he would be merely eligible for parole. The district court found this

claim to lack credibility:

        Although Petitioner might not have had prior knowledge about the
        details of parole eligibility, it is commonly known that parole is not
        automatically granted to eligible persons. Parole is granted at the
        discretion of the Pardon and Parole Board, after consideration of
        numerous factors. See Okla. Stat. tit. 57 § 332.8. Therefore, to the
        extent Plaintiff alleges that Mr. Albert told him he would actually be
        released in less than twelve years, as opposed to parole eligible, the
        Court finds the assertion unconvincing. This disposition is
        supported by the language of the Tenth Circuit in its order. “If the
        court determines that Mr. Beavers’ factual allegations are
        uncontested or true and he was denied the effective assistance of
        counsel, then it must order an appropriate remedy. Oklahoma can
        either retry Mr. Beavers within a reasonable period of time, or
        reduce his sentence so as to provide parole eligibility within ten to
        twelve years.”

Appellant’s App. at 38-39 n.2 (emphasis in original).

      Applying the two-part test articulated in    Hill v. Lockhart , 474 U.S. 52, 57

(1985), the district court held that Mr. Beavers had failed to establish that his

counsel’s advice, although incorrect, was unreasonable. This conclusion was based

on evidence that the incorrect parole information had emanated from the District

Attorney’s Office and that the criminal bar at the time of Mr. Beavers’ sentencing

widely believed, incorrectly, that good time credits could be awarded people

serving life sentences.

      The district court further found that, even if it was unreasonable for

Mr. Beavers’ counsel to advise him wrongly about his parole eligibility date,


                                             -4-
Mr. Beavers had failed to show that he had been prejudiced by the misinformation.

The court reasoned that the difference between twelve and fifteen years before

parole eligibility was not so great that Mr. Beavers would have gone to trial and

risked life without parole on a first degree murder charge. The district court again

denied Mr. Beavers’ habeas petition.

      On appeal, Mr. Beavers argues that, under the facts of this case, he received

ineffective assistance of counsel. In order to prevail, Mr. Beavers must make two

difficult showings: “[he] must show both that ‘counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment,’ and also that he was prejudiced because counsel’s errors rendered the

outcome of the state court’s proceedings unreliable.”        Miller v. Champion , 262 F.3d

1066, 1071 (10th Cir. 2001) (quoting         Strickland v. Washington , 466 U.S. 668, 687

(1984)), cert. denied , 122 S. Ct. 1092 (2002).

      Even if unreasonable representation were to be assumed here, Mr. Beavers

has failed to establish any prejudice.   1
                                             In Hill , the Court held that a petitioner in Mr.

Beavers’ circumstances can satisfy the prejudice prong of         Strickland by

demonstrating that constitutionally ineffective representation “affected the outcome

of the plea process. In other words . . . that there is a reasonable probability that,




1
      This court may address the Strickland performance and prejudice prongs in
any order, and need not address both prongs if the appellant fails to satisfy one
prong. Foster v. Ward , 182 F.3d 1177, 1184 (10th Cir. 1999).

                                                -5-
but for counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.”   Hill , 474 U.S. at 59.

      Mr. Beavers thus must establish a reasonable probability that he would have

pleaded not guilty and would have insisted on going to trial where he would have

risked being convicted and sentenced to life without the possibility of parole.

Because Mr. Beavers has failed to make this showing, he has failed to qualify for

federal habeas relief based on ineffective assistance of counsel.

      As we noted in Mr. Beavers’ first habeas appeal, gross misinformation

concerning parole eligibility can constitute ineffective assistance of counsel.

Beavers , 216 F.3d at 925 (citing cases). Mr. Beavers, however, must still

“affirmatively prove” that he was prejudiced by the misinformation.            Strickland 466

U.S. at 693. The existence of prejudice is “an essentially factual inquiry.”        Id.

      Our review of the record in this case and the findings of the district court

reveals no error in the district court’s conclusion that the difference between parole

eligibility after twelve years as opposed to eligibility after fifteen years is not so

great that Mr. Beavers would have gone to trial and risked a sentence of life

without parole for first degree murder had he been given accurate advice.

Arguments to the contrary in Mr. Beavers’ brief are pure speculation.

      Mr. Beavers cites Glover v. United States , 531 U.S. 198 (2001), in which

the Supreme Court rejected the concept that “a minimum amount of additional

time in prison cannot constitute prejudice.”         Id. at 203. We note that no federal


                                               -6-
court has considered Glover in the context of inaccurate advice regarding parole

eligibility, and, because of the uncertain nature of parole, we doubt that       Glover

applies in this context.

      In Glover , the petitioner had been convicted of labor racketeering, money

laundering, and tax evasion. The district court ruled that the money laundering

counts should not be grouped with the other offenses, a decision that increased

the petitioner’s offense level by two levels. Petitioner’s attorneys did not offer

any effective argument in opposition to this decision nor did the same attorneys

raise the grouping issue on appeal. In response to petitioner’s § 2255 motion,

the district court determined that under Seventh Circuit precedent an increase in

sentence of six to twenty-one months was insufficient to constitute prejudice for

purposes of Strickland . The Supreme Court reversed, rejecting the notion that

“a showing of prejudice, in the context of a claim for ineffective assistance of

counsel, requires a significant increase in a term of imprisonment.”         Id. at 204.

      Glover is a sentencing case in which legal error by counsel resulted in a

longer sentence for the petitioner. The Supreme Court held that an error of law in

the sentencing determination which increases time in prison implicates the Sixth

Amendment. Id. at 203. This case, however, involves an error in judgment about

how long a prisoner must serve before becoming eligible for parole, an error

which did not lengthen the ultimate sentence. Mr. Beavers was sentenced to life


                                             -7-
imprisonment; counsel’s error as to parole eligibility did not increase that term of

imprisonment so as to implicate      Glover .

      Our reasoning is supported by the language in          Glover itself, which is

replete with references to prison terms and length of sentence. The Court noted

that “[t]his is not a case where trial strategies, in retrospect, might be criticized

for leading to a harsher sentence. Here we consider the sentencing calculation

itself, a calculation resulting from a ruling which, if it had been error, would have

been correctable on appeal.”      Id. at 204. 3

      Because we conclude that        Glover does not apply to this case, we further

conclude that Mr. Beavers’ situation is controlled by the cases cited in his first

appeal to this court. Those cases hold that “         [g]ross misadvice concerning parole

eligibility can amount to ineffective assistance of counsel.”         Beavers , 216 F.3d

at 925 (quotation omitted, emphasis added, collecting cases).         4
                                                                          Because a three to


3
       The Fifth Circuit has recently decided a case involving a difference in
sentence allegedly resulting from counsel’s misadvice.      See Daniel v. Cockrell , 283
F.3d 697 (5th Cir. 2002). That court has concluded that the retroactivity principles
of Teague v. Lane , 489 U.S. 288 (1989), bar application of    Glover . See Daniel , 283
F.3d at 707. We do not reach the      Teague analysis because we conclude that    Glover
has no applicability in cases not involving increased sentences and because the
State has not made a retroactivity argument,    see Godinez v. Moran , 509 U.S. 389,
397 n.8 (1993).
4
      In this context, we note that the first panel of this court to consider
Mr. Beavers’ argument was under the mistaken impression (created by the affidavit
of Mr. Beavers’ trial counsel) that parole eligibility would be possible only after
serving twenty-two and one-half years and not the fifteen years as established in the
                                                                          (continued...)

                                                -8-
five year difference between what Mr. Beavers was told and what was actually the

case is not “gross misadvice” under these circumstances, we affirm the finding of

the district court that Mr. Beavers has failed to demonstrate prejudice.

      The cases cited in Mr. Beavers’ brief which reach a contrary conclusion

can be distinguished either because the discrepancy between counsel’s bad advice

regarding parole eligibility and actual fact was so great,        see, e.g., Meyers v.

Gillis , 142 F.3d 664, 667 (3d Cir. 1998), or because the petitioner had been able

to convince the district court that there was a “reasonable probability that the

result of the plea process would have been different but for the erroneous

information,” Hill v. Lockhart , 894 F.2d 1009, 1010 (8th Cir. 1990).

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

of Oklahoma is AFFIRMED.


                                                             Entered for the Court



                                                             Stephen H. Anderson
                                                             Circuit Judge




4
 (...continued)
district court hearing on remand. A difference of ten to twelve and one-half years
is much closer to “gross misadvice” than is the three to five years considered here.

                                             -9-
