                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3063
                                     ___________

United States of America,                 *
                                          *
      Plaintiff - Appellee,               *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Richard Payton,                           *
                                          *
      Defendant - Appellant.              *
                                     ___________

                               Submitted: May 16, 2001

                                   Filed: August 14, 2001
                                    ___________

Before LOKEN, JOHN R. GIBSON, and FAGG, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

        In August 1997, Richard Payton pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841 and 846. In March 1998, Payton moved to withdraw the plea. In support, his
retained attorney submitted under seal a declaration (i) that in advising Payton to plead
guilty to a cocaine base offense, counsel had erroneously ignored Payton’s earlier claim
that he only distributed “twist,” a substance not containing cocaine; and (ii) that in
advising Payton to plead guilty and seek a substantial assistance downward departure
under U.S.S.G. § 5K1.1, counsel had erred in believing Payton could supply
prosecutors with enough information about an alleged conspirator to earn a § 5K1.1
motion. Finding counsel’s declaration not credible, the district court1 denied the motion
to withdraw the plea and sentenced Payton to 360 months in prison. Payton appealed
the denial of his plea-withdrawal motion. We affirmed, noting that his related claim of
ineffective assistance of counsel must be raised by a 28 U.S.C. § 2255 motion. United
States v. Payton, 168 F.3d 1103, 1105 n.2 (8th Cir.), cert. denied, 528 U.S. 843 (1999).

       Payton then filed a § 2255 motion and now appeals its denial. The district court
granted a certificate of appealability on his claim of ineffective assistance of counsel.
Payton raises two ineffective assistance issues on appeal. First, echoing his earlier
motion to withdraw and relying on counsel’s discredited declaration, Payton argues that
his guilty plea was induced by counsel’s ineffective assistance in advising Payton to
plead guilty. We reject this contention for three reasons. (1) The district court found
counsel’s declaration not credible, that finding is not clearly erroneous, and therefore
the claim of ineffective assistance is unproved. (2) The thorough colloquy between
Payton and the district court before Payton entered his guilty plea demonstrates that
Payton knowingly admitted to having conspired to distribute cocaine base, that he
entered the plea knowing the sentencing significance of pleading guilty to a cocaine
base offense, and that he understood there were no guarantees he would earn a § 5K1.1
downward departure. Thus, the claim of Strickland prejudice is unproved. (3) In his
petition to plead guilty, Payton averred that he was satisfied with counsel’s
performance, and he failed to raise any dissatisfaction with counsel’s performance
before entering a guilty plea which the court found knowing and voluntary. In these
circumstances, the ineffective assistance claim is untimely because it was first raised
in a motion to withdraw the plea. See United States v. Newson, 46 F.3d 730, 732-33
(8th Cir. 1995); United States v. Abdullah, 947 F.2d 306, 312 (8th Cir. 1991), cert.
denied, 504 U.S. 921 (1992).


      1
        The HONORABLE WILLIAM G. CAMBRIDGE, United States District Judge
for the District of Nebraska, now retired.

                                          -2-
       Second, Payton argues that he is entitled to relief from his guilty plea, without
a showing of prejudice, because his counsel labored under a conflict of interest in
arguing against his own competence in the plea-withdrawal motion and in advising a
potential witness, Payton’s girlfriend Michelle Jenkins, “not to come to court on
[Payton’s] behalf.” This contention is without merit because Payton failed to prove an
actual conflict of interest. As to the plea-withdrawal motion, counsel raised the issue
of his own competence and submitted a declaration under seal impugning the quality
of his own representation. There is no evidence counsel advocated or pursued his own
interests to the detriment of his client’s, as a claim of this nature requires. See United
States v. Bruce, 89 F.3d 886, 893 (D.C. Cir. 1996). As to the contention counsel had
a conflict of interest in representing or advising Michelle Jenkins, the record contains
only Payton’s unsupported assertions that counsel had an attorney-client relationship
with Jenkins which adversely affected counsel’s representation of Payton and Payton’s
decision to plead guilty.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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