                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 3 1999
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    FLOYD BLACKBURN,

                  Petitioner-Appellant,

    v.                                                    No. 98-2093
                                                (D.C. No. CIV 96-0738-MV/JHG)
    JOE R. WILLIAMS, Warden CNMCF;                         (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                  Respondents-Appellees.




                              ORDER AND JUDGMENT          *




Before TACHA , BARRETT , and MURPHY , 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.


*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Floyd Blackburn requests a certificate of appealability to appeal

the district court’s decision denying his petition for a writ of habeas corpus under

28 U.S.C. § 2254.   1
                        To be entitled to a certificate of appealability, petitioner must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). We conclude that he has failed to make the required showing and

therefore, deny the request and dismiss the appeal.

      Petitioner was charged in New Mexico state court with two counts of

trafficking a controlled substance, with the first count occurring on October 4,

1994, and the second on October 13, 1994. As part of a plea agreement, he pled

guilty in 1995 to count one in exchange for count two being dismissed. With an

enhancement for being a habitual offender, he was sentenced to seventeen years

in prison, four of which were suspended, followed by two years of parole. He did

not file a direct appeal, but did file a state habeas petition in 1995, which was

denied.

      Petitioner filed the present habeas petition in the district court on May 29,

1996, contending that his conviction should be vacated because his counsel was

ineffective in two ways. He claims that he was in jail on the day the drug sale

charged in the second count occurred and that the undercover officer who


1
       We construe petitioner’s opening brief as a request for a certificate of
appealability, which must be granted before we may address the merits of his
appeal. See 28 U.S.C. § 2253(c).

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allegedly purchased the drugs from him misidentified him as the seller. He

contends that his counsel failed to investigate this defense to the second count,

and that had he realized he had a complete defense to this count, he would not

have pled guilty to the first count. He also contends that his counsel was

ineffective for failing to challenge an unconstitutionally suggestive pretrial photo

identification by the undercover officer. Adopting the findings and

recommendation of the magistrate judge, the district court held that petitioner

had not shown that his counsel was ineffective and denied the petition without

a hearing. The court also denied petitioner’s request for a certificate of

appealability.

      To establish ineffective assistance of counsel, petitioner must show that his

counsel’s performance was so deficient that counsel was not performing to the

level guaranteed by the Sixth Amendment, and that counsel’s deficient

performance prejudiced him.     See Strickland v. Washington , 466 U.S. 668, 687

(1984). Because he pled guilty, petitioner’s ultimate burden on the prejudice

prong is to show that there is a reasonable probability that had his counsel’s

performance not been deficient, he would not have pled guilty.    See Hill v.

Lockhart , 474 U.S. 52, 59 (1985).

      Petitioner submitted an affidavit stating that he was in jail on a parole

violation on the date of the second count. He claims that because he never saw a


                                           -3-
copy of the criminal information charging him, he did not know he had a defense

to the second count, and his counsel was ineffective for failing to investigate and

discover the exculpatory evidence that would support that defense. The district

court found that the record showed petitioner was not arrested on the parole

violation until several weeks after the drug sale charged in the second count. It

also noted that the criminal information was read to petitioner at his arraignment,

that the undercover officer testified at the preliminary hearing as to when the

second count occurred, and that petitioner stated at the plea hearing that he

understood the charges against him. Relying on     Worthen v. Meachum , 842 F.2d

1179, 1184 (10th Cir. 1988), the district court concluded that petitioner’s claim

was “wholly incredible” and did not warrant an evidentiary hearing.    See Lasiter

v. Thomas , 89 F.3d 699, 703 (10th Cir. 1996).

      In the other part of his ineffective counsel claim, petitioner contends that

his counsel was ineffective for failing to move to suppress the undercover

officer’s out-of-court identification of him as unconstitutionally suggestive.

See Neil v. Biggers , 409 U.S. 188, 199-200 (1972). The officer had identified

him from a photograph after the second transaction, and also later identified him

at the preliminary hearing. The court held that even had the one-photo

identification been unduly suggestive, it was constitutionally permissible because

the officer had ample opportunity to view petitioner during the sales, was


                                           -4-
attentive, had previously described petitioner accurately, and was certain of the

identification, and because the identification occurred only four days after the

second transaction.   See id. The court concluded that counsel was not ineffective

for failing to challenge this identification.

      On appeal, petitioner reargues his claims of ineffective counsel. We have

fully considered his arguments and reviewed the record, and conclude, for

substantially the same reasons as stated in the magistrate judge’s report, that his

arguments are without merit and that he has failed to make a substantial showing

of the denial of a constitutional right. The application for a certificate of

appealability is therefore DENIED, and the appeal is DISMISSED.



                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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