                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 6 2000
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 LYNNETTE BERRY-GURULE,

          Petitioner - Appellant,
 v.
                                                      No. 99-2112
 PENNY LUCERO, Warden;
                                               (D.C. No. 97-1156 MV/JHG)
 ATTORNEY GENERAL FOR THE
                                                   (Dist. New Mexico)
 STATE OF NEW MEXICO

          Respondents - Appellees.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and HENRY, Circuit Judges.


      Petitioner-Appellant Lynette Berry-Gurule (“Berry-Gurule”) sought a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that her trial counsel was

ineffective and that for this reason her 1996 guilty plea in New Mexico state court

was involuntary and unintelligent. Adopting the findings of the magistrate judge,

the district court denied Berry-Gurule’s motion for an evidentiary hearing and

petition for a writ of habeas corpus.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      This court granted a certificate of appealability in this case on December

13, 1999 pursuant to 28 U.S.C. § 2253(c)(1), and we therefore have jurisdiction to

hear this appeal. We AFFIRM the judgment of the district court.

                                 BACKGROUND

      On October 17, 1995, Berry-Gurule was charged by indictment in New

Mexico state court with: (1) five counts of child abuse; 1 (2) one count of

trafficking cocaine; and (3) one count of tampering with evidence. On November

22, 1995, Berry-Gurule was further charged by indictment with: (1) five counts of

fraudulent use of a credit card; (2) five counts of fraudulent signing of credit

cards or sales slips; (3) one count of conspiracy to commit the fraudulent use of a

credit card; and (4) one count of contributing to the delinquency of a minor, all in

violation of New Mexico law. These cases were consolidated, and Berry-Gurule

pled guilty, pursuant to a plea agreement, to: (1) two counts of child abuse; (2)

one count of trafficking cocaine; and (3) two counts of fraudulent use of a credit

card without consent of the cardholder. The state district court sentenced Berry-

Gurule to eighteen years for first-degree child abuse; nine years for third-degree

child abuse; three years for trafficking cocaine; and three years for the credit card

fraud convictions. The court mitigated the eighteen-year sentence to fifteen years


      1
       Berry-Gurule allowed her two-year-old son to ingest a non-fatal dose of
crack cocaine and her eleven-month-old daughter to ingest a fatal dose. The
cocaine was apparently accessible to the children in Berry-Gurule’s home.

                                        -2-
and concluded that the three-year sentence for trafficking cocaine would run

consecutive to that sentence. The court further provided that the remaining

sentences would all run concurrently to the child abuse and drug trafficking

sentence, yielding a total prison sentence of eighteen years.

      Berry-Gurule filed a state petition for a writ of habeas corpus on May 14,

1997. In the petition, she alleged that she was denied effective assistance of

counsel because her trial counsel, Anthony Ayala, “failed to adequately counsel

Petitioner on the consequences of her plea of guilty, and her plea was therefore

not entered knowingly, voluntarily, and intelligently.” The New Mexico district

court denied Berry-Gurule’s petition the same day in a conclusory order. The

district judge who signed the order was W. John Brennan, the same judge who

had received Berry-Gurule’s plea and sentenced Berry-Gurule. The district court

(again, Judge W. John Brennan) filed an amended order denying the petition on

July 24, 1997. With respect to the ineffective assistance of counsel claim, the

amended order stated:

      Petitioner’s first issue states that she was denied effective assistance of
      counsel. She argues that counsel did not review the consequences of the
      plea and she was given the last page of the agreement and told to sign it.
      Petitioner entered into this plea on the record and stated to the court that
      she read and understood the terms of the plea. At the time of the plea
      Petitioner was represented by counsel and informed by the court of the
      rights she would be waiving by her acceptance of the plea agreement.
      There was no indication from Petitioner or counsel that the plea or its terms
      were not understood. Due to the serious nature of the charges and the
      length of the sentence the court spent additional time on the record, making

                                        -3-
      sure the plea was free and voluntary and that the Petitioner understood the
      consequences.

Berry-Gurule filed a petition for writ of certiorari with the New Mexico Supreme

Court, and that court denied the petition on August 12, 1997.

      Berry-Gurule filed her federal habeas petition on August 28, 1997. In her

brief, she argued that she was denied her right to effective assistance of counsel,

resulting in an involuntary and unintelligent guilty plea, when her attorney failed

to investigate her case or to communicate with her regarding the charges filed

against her, possible defenses to those charges, and the consequences of her guilty

plea. The magistrate judge reviewing her petition recommended that the district

court deny the petition, reasoning that Berry-Gurule had failed to make a showing

under either prong of Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984) . Adopting the magistrate judge’s findings, the district court

denied the petition for writ of habeas corpus and the motion for an evidentiary

hearing. Berry-Gurule appeals the judgment of the district court.

      The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to

Berry-Gurule’s case because she filed her § 2254 petition after April 24, 1996.

See Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir. 1999). The standard of

review under AEDPA 2 is set forth at 28 U.S.C. § 2254(d)(1)-(2), which provides:


      2
          Much of the parties’ briefs are dedicated to a discussion of the meaning of
                                                                         (continued...)

                                          -4-
      An application for a writ of habeas corpus on behalf of a person in custody
      pursuant to the judgment of a State court shall not be granted with respect
      to any claim that was adjudicated on the merits in State court proceedings
      unless the adjudication of the claim–
      (1) resulted in a decision that was contrary to, or involved an unreasonable
      application of, clearly established Federal law, as determined by the
      Supreme Court of the United States; or
      (2) resulted in a decision that was based on an unreasonable determination
      of the facts in light of the evidence presented in the State court proceeding.

      In support of her appeal, Berry-Gurule alleges the following facts: (1)

Ayala knew that Berry-Gurule had been traumatized by the death of her child and

the injury of her other child; (2) Berry-Gurule told Ayala that she had seen a

medical doctor regarding her stress and depression, and that she was taking anti-

depressant and anti-psychotic medication; (3) Berry-Gurule went to Ayala’s office

three times in an attempt to discuss her case, but was told that he was too busy to

meet with her; (4) when Ayala called to tell Berry-Gurule that he had received a

plea offer that could result in an eighteen-year sentence, she told him that she did

not want to accept the plea offer and that she was doing well in treatment; (5) in

response to Berry-Gurule’s statement that she did not want to accept the plea

offer, Ayala told her that he might be able to get her probation; (6) at the end of

the conversation, Ayala told Berry-Gurule to be in court the next day, and then



      2
        (...continued)
§ 2254(d)(1)-(2). (See Aple. Br. at 5-9; Aplt. Rep. Br. at 1-10.) Subsequent to
the filing of the briefs in this case, the Supreme Court resolved this issue in
Williams v. Taylor, –U.S.–, 120 S. Ct. 1495, 1518-23, –L. Ed. 2d– (2000).

                                        -5-
hung up on her; (7) Berry-Gurule immediately went to her lawyer’s office but was

told he was unavailable; (8) at the courthouse the next day, Ayala showed her the

last page of the plea agreement, told her to sign her name, and Berry-Gurule did

so; (9) Ayala never reviewed the plea agreement with Berry-Gurule and she did

not review it herself; (10) at the plea hearing, Berry-Gurule was afraid to tell the

judge that she had not reviewed the plea document because she thought the judge

would take away her work-release program; (11) Berry-Gurule would not have

pled guilty if she had known of the mandatory minimum sentence and been given

the opportunity to review the discovery materials in her case; (12) Berry-Gurule

asked Ayala for copies of the discovery materials, but he never reviewed the

discovery with her or gave her a copy; and (13) Ayala failed to investigate the

case adequately as evidenced by the fact that he received a copy of the discovery

materials (including 136 pages of police reports and medical reports) only six

days before Berry-Gurule entered into the plea agreement.

      Under AEDPA, this court’s analysis begins with a determination of whether

the habeas petitioner’s claim was “   adjudicated on the merits” by the state court.

See Hooks , 184 F.3d at 1223. We do this because AEDPA’s deferential standard

of review only applies where there has been an adjudication on the merits by the

state court. “In the absence of a state adjudication on the merits we believe we

must apply the standard of review that predated the recent amendments to §


                                          -6-
2254.” Id. Berry-Gurule asserts that this court need not give deference to the

state court’s determination of the ineffective assistance of counsel claim pursuant

to AEDPA because the state court did not decide Berry-Gurule’s claim on its

merits. We need not address this issue in order to resolve Berry-Gurule’s claim

of error, however. Even assuming that review of Berry-Gurule’s claim under pre-

AEDPA standards is appropriate in this case, Berry-Gurule is not entitled to

habeas relief, because she has failed to allege facts sufficient to support her

ineffective assistance of counsel claim.

       A prisoner alleging ineffective assistance of counsel has the burden of

demonstrating both deficient performance on the part of counsel and resulting

prejudice. See Strickland , 466 U.S. at 687. The Supreme Court has held that this

standard also applies in the   context of a guilty plea. See Hill v. Lockhart, 474

U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d (1985) (“[T]he same two-part standard

[set forth in Strickland] seems to us applicable to ineffective-assistance claims

arising out of guilty pleas.”).

       We cannot grant Berry-Gurule habeas relief in this case because she has

failed to meet the second part of the Strickland test by alleging facts that show

prejudice. Relying on Hill, this court has explained that “in order to demonstrate

prejudice, [a state habeas petitioner] . . . must show that, had he rejected the

State’s plea bargain, the outcome of the proceedings ‘likely would have changed.’


                                           -7-
Thus, we must determine whether it is likely that a jury would have acquitted . . .

[the petitioner of the crime to which he pled guilty].” Miller v. Champion, 161

F.3d 1249, 1256-57 (10th Cir. 1998) (quoting Hill, 474 U.S. at 59); see also

Braun v. Ward, 190 F.3d 1181, 1188 (10th Cir. 1999) (reciting same test under

AEDPA standard of review); United States v. Kane, No. 98-3241, 1999 WL

448818 (10th Cir. July 2, 1999) (unpublished) (applying test in § 2255

proceeding). Berry-Gurule did not allege facts before the district court or in her

brief on appeal that would show that she did not abuse her children, that she did

not traffic cocaine, or that she did not engage in credit card fraud. Moreover, the

evidence in the record indicates that Berry-Gurule committed these crimes and

that a jury therefore would not have acquitted her. Under oath, Berry-Gurule told

the state district court judge during her plea hearing that she “neglected to pick

up” her boyfriend’s crack cocaine; that she was aware crack cocaine was in the

house; and that she purchased $300 worth of goods using a credit card that did not

belong to her and that she was not authorized to use. In addition, the record

contains police reports showing that rock cocaine was located in the home and the

backyard and that Berry-Gurule told the paramedics that her daughter had

swallowed rat poison even though she knew that the girl had ingested cocaine.

      The facts of Miller provide a helpful contrast to this case. In Miller, this

court found that the habeas petitioner was entitled to an evidentiary hearing


                                         -8-
because he had alleged facts in the petition which, if true, would have allowed a

jury to find that the petitioner was guilty of a lesser offense than the offense to

which he had pled guilty. See Miller, 161 F.3d at 1258-59. Unlike the petitioner

in Miller, Berry-Gurule does not allege facts or present evidence to show that the

outcome in her case had she gone to trial would have differed from the guilty

plea.

        In conclusion, because Berry-Gurule cannot show prejudice under

Strickland, we conclude that the district court properly denied Berry-Gurule’s

motion for an evidentiary hearing and her petition for habeas relief. The

judgment of the district court is AFFIRMED.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                          -9-
