                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 16 1999
                            FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    VINCENT M. LUCERO,

                Petitioner-Appellant,

    v.                                                       No. 99-1070
                                                       (D.C. No. 97-WM-2259)
    ATTORNEY GENERAL FOR THE                                  (D. Colo.)
    STATE OF COLORADO;
    ARISTEDES W. ZAVARAS,
    Executive Director, Colorado
    Department of Corrections,

                Respondents-Appellees.


                             ORDER AND JUDGMENT               *




Before ANDERSON , BARRETT , and BRISCOE, Circuit Judges.




         Petitioner Vincent M. Lucero appeals from the district court’s denial of his

habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. Our jurisdiction over

this appeal arises under 28 U.S.C. §§ 2291 and 2253.      1
                                                              Because appellant’s habeas

*
      This order and judgment is not binding precedent, except under the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.
1
         After examining appellant’s brief and the appellate record, this panel has
                                                                         (continued...)
petition was filed after the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996, the certificate of appealability provision created by that Act

is applicable to his case.   See 28 U.S.C. § 2253(c)(1)(A). The district court

denied appellant a certificate of appealability and denied appellant’s request to

proceed on appeal in forma pauperis.     See Rec. Vol. II, doc. 55 at 2;   id. , doc. 57.

We grant appellant leave to proceed in forma pauperis. To obtain a certificate of

appealability, appellant must demonstrate “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). Respondent has not filed a brief

in this appeal.

       “In reviewing a denial of a petition for a writ of habeas corpus, we are

generally subject to two different modes of analysis. If the claim was not heard

on the merits by the state court, and the federal 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, if any, for clear error. But when reviewing

the merits of a claim already decided by the state courts, we are bound to deny

relief unless the state court’s decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the



1
 (...continued)
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.

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Supreme Court’ or ‘resulted in a decision that was based on an unreasonably

determination of the facts in light of the evidence presented in the State court

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

28 U.S.C. § 2254(d)) (further citations omitted). The state court’s factual

findings are afforded a rebuttable presumption of correctness.      See 28 U.S.C.

§ 2254(e)(1).

      Appellant plead guilty and was convicted in Colorado state court on

charges of second degree murder and first and second degree assault. He entered

an Alford plea, maintaining his innocence of the charges.    2
                                                                 On direct appeal, the

state appellate court affirmed and the state supreme court denied review.

Appellant also filed a state post-conviction motion alleging ineffective assistance

of counsel, which was denied after a hearing. That denial was affirmed on appeal

and the supreme court again denied review. Appellant then filed for habeas relief

in federal district court, raising issues from both his direct appeal and post-

conviction motion, together with other claims. The district court denied his

habeas petition because it concluded that many of the issues he raised were

procedurally barred, and the remaining issues lacked merit.


2
      In North Carolina v. Alford , 400 U.S. 25 (1970), the Supreme Court held
that where a defendant pleads guilty while still maintaining his innocence, the
plea may still be “the product of a free and rational choice, especially where the
defendant was represented by competent counsel whose advice was that the plea
would be to the defendant’s advantage.”    Id. at 31.

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       On appeal, appellant challenges his sentence as unfair and excessive in

light of his Alford plea and his self-defense arguments, contends that his sentence

is a fundamental miscarriage of justice, and argues that the sentencing court paid

more attention to aggravating factors and less attention to his mitigating claims of

self-defense. After careful consideration of these arguments, the record on

appeal, and the applicable law, we conclude that the district court correctly

rejected these arguments. We decline to grant appellant a certificate of

appealability on those issues.

       Appellant also contends that his trial counsel were ineffective with respect

to the advice they gave him about parole eligibility. He alleges that his counsel

told him he would be eligible for parole after serving 50% of his sentence,

whereas the applicable law requires him to serve 75% of his sentence before he is

considered for parole. He asserts that, had he known about the 75% requirement,

he would have gone to trial rather than plead guilty. Appellant raised this issue in

his state post-conviction motion and the state court held a hearing at which his

trial counsel testified. The state trial court concluded that appellant had been

properly advised as to parole and that, therefore, he had not demonstrated

ineffective assistance of counsel. The district court agreed, but also noted that

appellant had failed to establish prejudice, as required by   Strickland v.

Washington , 466 U.S. 668, 693 (1984). Under these circumstances, appellant


                                             -4-
must demonstrate that but for his counsel’s advice regarding parole eligibility, he

would have gone to trial.     See Braun v. Ward , 190 F.3d 1181, 1188 (10th Cir.

1999) (citing Hill v. Lockhart , 474 U.S. 52, 59 (1985)).

       In light of the various factors involved in appellant’s decision whether to

stand trial, we cannot conclude that the required prejudice has been shown.

Appellant faced a strong case on charges of murder and assault, including facts

which weighed against his self-defense arguments and potentially damaging

testimony from his co-defendant. He also faced habitual offender charges which

he had tried, unsuccessfully, to have removed. These charges could have resulted

in a life sentence, a possibility appellant wanted to avoid.       See Rec. Vol. I, doc. 3,

Attachment C at 12, 21, 25-26. Under these circumstances, we conclude that

appellant would have plead guilty to the lesser charges had he been properly

advised by counsel as to parole eligibility. Therefore, without consideration

whether appellant’s counsels’ performance was deficient, we agree with the

district court that appellant’s ineffective assistance claim lacks merit.      See Foster

v. Ward , 182 F.3d 1177, 1184 (10th Cir. 1999) (noting that appellate court may

address Strickland performance and prejudice prongs in any order, and need not

address both if appellant fails to satisfy one prong). Accordingly, we deny

appellant a certificate of appealability on this issue as well.      See Scoggin v.

Kaiser , 186 F.3d 1203, 1206 n.1 (10th Cir.) (holding the grant of a certificate of


                                              -5-
appealability on ineffective assistance claim unnecessary where no prejudice

demonstrated), cert. denied , 120 S. Ct. 377 (1999).

      Appellant raises several issues challenging procedural rulings of the district

court. He contends that the court did not perform an adequate de novo review of

his objections; objects to the use of a magistrate judge and asserts that both the

magistrate judges and the district court judge should have been disqualified;

challenges the district court’s ruling striking and disallowing pleadings filed on

his behalf by another prisoner; complains that the district court failed to rule on

his motions for appointment of counsel or his constitutional challenge to the

Prison Litigation Reform Act fee provisions; and contends that he was entitled to

an evidentiary hearing before the district court. Our review of the record

demonstrates that these issues have no merit.

      In light of the above discussion, we conclude that appellant has not made a

substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2). Therefore, we DENY appellant a certificate of appealability and




                                          -6-
DISMISS the appeal. Appellant’s motions for appointment of counsel and for

disqualification of the district court judge and the magistrate judges are DENIED.

The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




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