                        UNITED STATES COURT OF APPEALS
Filed 12/17/96
                                     TENTH CIRCUIT



KENNETH SINKS,                                )
                                              )
       Petitioner-Appellant,                  )
                                              )
vs.                                           )                 No. 95-2273
                                              )          (D.C. No. 90-1077 SC/DJS)
JOHN SHANKS,                                  )                  (D. N.M.)
                                              )
       Respondent-Appellee.                   )


                               ORDER AND JUDGMENT*



Before TACHA, McWILLIAMS, and BALDOCK, Circuit Judges.



       This matter is before the court on Petitioner Kenneth Sinks’s application for a

certificate of probable cause to appeal the district court’s denial of his 28 U.S.C. § 2254

petition for a writ of habeas corpus. We treat the application as an application for a

certificate of appealability under Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996), petition

for cert. filed, U.S.L.W. (U.S. Oct. 21, 1996) (No. 96-6621). Because Petitioner has




       *
               This order and judgment is not binding precedent, except under the
doctrines of the 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.
not made a substantial showing of the denial of a constitutional right, we deny his

application and dismiss the appeal.

       Petitioner was convicted and sentenced by a New Mexico state court on two counts

of conspiracy to commit fraud, three counts of fraud, one count of criminal solicitation,

and one count of racketeering related to the construction of ethanol plants in Clovis, New

Mexico. Petitioner pleaded guilty to several federal charges, based on the same conduct,

in separate proceedings in the Western District of Missouri. Petitioner now contends that:

(1) he was denied effective assistance of counsel at his state criminal trial because he was

represented by an inexperienced and under-prepared trial attorney, who received little

support from her public defender office, and (2) he was denied effective assistance of

counsel during his sentencing due to his sentencing attorney’s failure to request, at his

first sentencing hearing, that his state sentence be served concurrently with his federal

sentence and due to his attorney’s subsequent failure to inform him that he could obtain

consideration of his request that he be permitted to serve his state sentence concurrently

with his federal sentence in the state court without voluntarily dismissing his appeal.1


       1
                Since the filing of his § 2254 petition, Petitioner has been released from
incarceration and has completed his probation. Because he filed his petition while he was
incarcerated, however, Petitioner has met the “in custody” jurisdictional requirement for
the filing of a § 2254 petition. See United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.
1994). Moreover, Respondent has not argued that this case has become moot by reason
of Petitioner’s release from incarceration and completion of probation, and presumably he
still suffers “the disabilities or burdens which may flow from Petitioner’s conviction.” Id.
(internal quotation omitted); United States v. Chavez-Palacios, 30 F.3d 1290, 1293 & n.3
(10th Cir. 1994).

                                              2
       The Magistrate Judge held an evidentiary hearing on the issue of Petitioner’s claim

for denial of effective assistance of counsel. Petitioner’s trial and sentencing attorneys

and one of the state prosecutors, as well as Petitioner, testified at the evidentiary hearing.

After considering this testimony and the tape recordings of the state criminal trial, the

Magistrate Judge credited the testimony of Petitioner’s attorneys over his testimony and

specifically found that Petitioner was not afforded ineffective assistance of counsel by

reason of the inexperience of his trial attorney or by insufficient technical support. The

Magistrate Judge also found that Petitioner knowingly withdrew his state appeal in order

to obtain the state’s concurrence in his request to the state court that he be permitted to

serve his sentence concurrently with his federal sentence, and that he, thus, could not

show that the withdrawal of the appeal demonstrated ineffective assistance of counsel.

After considering the record and Petitioner’s objections, the district court adopted the

Magistrate Judge’s recommendation and dismissed the petition with prejudice.

       We have reviewed the Magistrate Judge’s report and recommendation, the district

court’s order, the parties’ briefs, and the entire record before us. In his briefs, Petitioner

generally relies on his own testimony given at the evidentiary hearing. The Magistrate

Judge largely chose to credit the countervailing testimony of the other witnesses based on

his credibility determinations, and Petitioner has not shown that the Magistrate Judge or

the district court committed clear error with regard to the factual findings. See Romero v.

Tansy, 46 F.3d 1024, 1028 (10th Cir.), cert. denied, 115 S. Ct. 259 (1995). We conclude


                                               3
that Petitioner has failed to make a substantial showing of the denial of a constitutional

right for the reasons set forth in the Magistrate Judge’s report and recommendation. See

Hogan v. Zavaras, 93 F.3d 711, 712 (10th Cir. 1996). Accordingly, we deny Petitioner’s

application for a certificate of appealability and dismiss the appeal.

       APPLICATION DENIED AND APPEAL DISMISSED.



                                           Entered for the Court,



                                           Bobby R. Baldock




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