                                                                                 F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  JUN 17 1998
                              FOR THE TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                                         No. 97-3374
                                                         (D.C. No. 97-3221-RDR)
    STEVEN A. FORSYTHE,                                         (D. Kan.)

                 Defendant-Appellant.


                                ORDER AND JUDGMENT              *




Before KELLY, BARRETT, and HENRY , Circuit Judges.



         After examining defendant’s brief and the 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(f); 10th Cir. R. 34.1.9.

The case is therefore ordered submitted without oral argument.

         Defendant seeks the issuance of a certificate of appealability,      see 28 U.S.C.

§ 2253(c)(1)(B), that would enable him to appeal the district court’s denial of his



*
      This order and judgment is not binding precedent, except under the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.
28 U.S.C. § 2255 motion for relief from his drug trafficking conviction.

See United States v. Forsythe , 985 F. Supp. 1047 (D.Kan 1997). Because

defendant failed to make a substantial showing of the denial of a constitutional

right, we deny his application and dismiss this appeal.       See 28 U.S.C.

§ 2253(c)(2).

       Defendant asserts two arguments. First, he argues that his attorney was

ineffective for failing to file a direct appeal.     See Baker v. Kaiser , 929 F.2d 1495,

1499 (10th Cir. 1991) (constitutionally effective counsel must file direct criminal

appeal if defendant requests). The district court, however, following an

evidentiary hearing, found that defendant had in fact not requested that his

attorney pursue a direct appeal. There is no indication that this factual finding

is clearly erroneous.    See United States v. Alvarez , 137 F.3d 1249, 1250-51

(10th Cir. 1998) (reviewing district court’s factual findings, made in § 2255

proceeding, for clear error);    see also United States v. Chavez , 862 F.2d 1436,

1438 (10th Cir. 1988) (factual findings based upon credibility of witnesses are

special province of district court).

       Secondly, defendant argues that the government breached the plea

agreement by failing to make a motion for a reduction in his sentence, pursuant

to U.S.S.G. § 5K1.1, in light of his cooperation.       The plea agreement provided

that, at the “sole discretion of the United States Attorney’s Office,” the


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government would file such a motion “in the event that defendant provides

substantial assistance.” Appellant’s Br., App. 1 at 2-3.    The government declined

to file a § 5K1.1 motion because state authorities arrested defendant for drug

trafficking activities, following his guilty plea but before sentencing on the

federal conviction.   See United States v. Lee , 989 F.2d 377, 380 (10th Cir. 1993)

(when defendant asserts that government breached plea agreement by failing to

file § 5K1.1 motion left to government’s discretion, appellate court’s role is

limited to determining whether government made decision in good faith).

       Because defendant did not file a direct appeal, he is procedurally barred

from raising this claim absent a showing of cause and prejudice.      See United

States v. Kunzman , 125 F.3d 1363, 1365 (10th Cir. 1997),      cert. denied , 118 S. Ct.

1375 (1998). Constitutionally ineffective assistance of counsel would provide the

requisite cause.   See, e.g. , United States v. Lopez , 100 F.3d 113, 117 (10th Cir.

1996). Nonetheless, counsel was not ineffective in this case for failing to advise

defendant to pursue this claim on direct appeal.     See generally Romero v. Tansy ,

46 F.3d 1024, 1031 (10th Cir. 1995) (describing defense counsel’s

constitutionally required duty to advise criminal defendant regarding merit of

direct appeal).

       The plea agreement left the decision to file a § 5K1.1 motion to the

government’s “sole discretion.” In addition, another provision of the plea


                                            -3-
agreement specifically conditioned the government’s promise to recommend

a three-level downward departure for the acceptance of responsibility upon

defendant’s not engaging in additional criminal activity. Reading the plea

agreement as a whole further supports the government’s decision, made in good

faith, not to file a § 5K1.1 motion.   Counsel, therefore, was not ineffective for

failing to advise defendant to assert this claim on direct appeal.

       Defendant’s application for the issuance of a certificate of appealability is,

therefore, DENIED, and this appeal is DISMISSED.



                                                       Entered for the Court



                                                       Robert H. Henry
                                                       Circuit Judge




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