                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 29, 2011

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 09-4224
    v.                                        (D.C. Nos. 2:07-CV-00936-TC and
                                                   2:02-CR-00708-PGC-1)
    WELDON H. ANGELOS,                                    (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.



         Weldon H. Angelos appeals from the district court’s order denying his

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We

previously granted him a certificate of appealability (COA), see id.

§ 2253(c)(1)(B), limited to three issues: (1) whether his attorney provided him

with ineffective assistance during plea negotiations; (2) whether his attorney


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
provided him with ineffective assistance during trial; and (3) whether he should

have received an evidentiary hearing in district court relating to his

ineffective-assistance-at-trial claim.

      Having now had the opportunity to consider the government’s responsive

briefing and Angelos’s reply, the relevant law, and the appendices filed by the

parties, we affirm the district court’s denial of § 2255 relief. Angelos has not

sustained his burden in showing his attorney’s conduct was constitutionally

deficient so as to violate his Sixth Amendment right to counsel. Nor, for reasons

we will explain, is he entitled to a COA on the additional issues he had raised.

                                  BACKGROUND

      Angelos sold marijuana to a confidential informant, a fellow gang member,

who claimed Angelos carried a firearm during two of the transactions. Angelos

was arrested and subsequent searches of his apartment and his girlfriend’s house

revealed additional evidence of drug trafficking and weapons. He was indicted on

a variety of drug distribution and gun charges. A jury convicted him of multiple

drug, firearms, and money laundering crimes.

      Among the offenses of conviction were three counts of possession of a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). “Section 924(c) mandates . . . five years of imprisonment for any

person who ‘uses’ or ‘carries’ a firearm during and in relation to a federal drug

trafficking crime, as well as for anyone who ‘possesses’ a firearm in furtherance

                                          -2-
of any such crime.” United States v. Winder, 557 F.3d 1129, 1138 (10th Cir.),

cert. denied, 129 S. Ct. 2881 (2009). Second or subsequent convictions under

§ 924(c) carry a mandatory term of twenty-five years, 18 U.S.C. § 924(c)(1)(C),

and run consecutively to one another, id. § 924(c)(1)(D)(ii).

      At sentencing, the district court reluctantly concluded it was obligated by

statute to sentence Angelos to a total of fifty-five years for the three § 924(c)

convictions alone. It sentenced him to one day for all the remaining offenses, for

a total sentence of fifty-five years and one day.

      On direct appeal, Angelos presented multiple arguments: evidence was

improperly admitted against him; evidence in his favor was improperly excluded;

the gun counts should have been “grouped” together for sentencing purposes since

they all arose out of the same basic transaction; and his sentence violated the

Eighth Amendment. We disagreed and rejected all these challenges to his

convictions and sentence. United States v. Angelos, 433 F.3d 738 (10th Cir.

2006). Angelos then brought this § 2255 motion, asserting numerous challenges

including claims of ineffective assistance of counsel during plea bargaining and at

trial. The district court denied without an evidentiary hearing all claims except

his claim of ineffective assistance during plea bargaining; held an evidentiary

hearing concerning that claim; then denied it as well.




                                          -3-
                                    ANALYSIS

      I. Standard of Review

      “We review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Orange, 447 F.3d 792,

796 (10th Cir. 2006). Under § 2255, the district court is required to conduct an

evidentiary hearing “unless the motion and files and records of the case

conclusively show that prisoner is entitled to no relief,” and the denial of an

evidentiary hearing is reviewed for an abuse of discretion. United States v.

Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000).

      II. Ineffective Assistance During Plea Negotiations

             A. Applicable Law

                   1. Strickland Standard

      Angelos’s ineffective assistance claims, both concerning plea bargaining

negotiations and counsel’s performance at trial, are governed by the two-part test

described in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,

we first ask whether counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 687-88. We then ask whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

      Counsel renders deficient performance when he makes “errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

                                         -4-
Sixth Amendment.” Id. at 687. When assessing claims of deficient performance,

we “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. at 689. “The proper

measure of attorney performance remains simply reasonableness under prevailing

professional norms.” Id. at 688. We ask “whether counsel’s assistance was

reasonable considering all the circumstances.” Id. To establish deficient

performance, it is not enough for Angelos to show that his attorney’s strategy was

merely wrong, or his actions unsuccessful; he must demonstrate that the actions

his attorney took were “completely unreasonable.” Hoxsie v. Kerby, 108 F.3d

1239, 1246 (10th Cir. 1997) (quotation omitted).

                   2. Strickland in the Plea Bargaining Context

      “Before deciding whether to plead guilty, a defendant is entitled to the

effective assistance of competent counsel.” Padilla v. Ky., 130 S. Ct. 1473,

1480-81 (2010) (quotation omitted). Effective performance in this context

requires “counsel’s informed opinion as to what pleas should be entered.” United

States v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997). The prejudice component

in this context “focuses on whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process.” Hill v. Lockhart,

474 U.S. 52, 59 (1985). Where, as here, a petitioner chose to reject a plea offer,

he must show a “reasonable probability that, but for his counsel’s erroneous




                                        -5-
advice . . . he would have accepted the [government’s] offer.” Magana v.

Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001) (§ 2254 case).

             B. District Court’s Credibility Findings

      The district court held an evidentiary hearing. At the hearing, the witnesses

included Angelos; his trial counsel, Mr. Mooney; and the prosecuting attorney,

Mr. Lund. The court also accepted affidavits regarding their participation from

Mooney and Lund, and an affidavit from Angelos. After considering all of the

evidence, the court made a general credibility finding adverse to Angelos.

      After noting Angelos’s testimony concerning the plea bargaining process

differed in significant respects from Mooney’s and Lund’s, the district court

concluded Angelos was “not credible.” As a general matter

      the statements made by Mr. Angelos, particularly in his affidavit,
      that contradict the testimony and declarations of Mr. Mooney and
      Mr. Lund are not credible. Mr. Mooney’s testimony was
      corroborated by that of Mr. Lund. Moreover, the exhibits received at
      the hearing further support Mr. Mooney’s testimony.

Aplt. App., Vol. II at 375 n.3 (citing to exhibits such as affidavits and

correspondence between counsel).

      We review the district court’s decision to credit Mooney’s testimony over

Angelos’s for clear error. See United States v. Carr, 80 F.3d 413, 417-18

(10th Cir. 1996). The district court’s credibility findings in particular are entitled

to considerable deference: “[W]hen a trial judge’s finding is based on his

decision to credit the testimony of one of two or more witnesses . . . that

                                          -6-
finding . . . can virtually never be clear error.” Anderson v. City of Bessemer

City, 470 U.S. 564, 575 (1985).

      Throughout his briefing Angelos cites his own testimony pertaining to the

plea-bargaining process. But he fails to show the district court erred by

determining that his testimony lacked credibility where it contradicted that of

Mooney and Lund. In our review of this issue, we therefore discount the factual

allegations that contradict the testimony of Mooney and Lund.

             C. Application of Strickland

      Angelos contends Mooney performed deficiently throughout the plea

bargaining process to his prejudice in two ways: (1) failing to advise him

concerning the adverse sentencing consequences he faced if he did not accept the

plea offered by the government, and (2) affirmatively misrepresenting to him the

sentence he faced if he went to trial.

      The district court rejected these contentions, concluding that

      Mr. Mooney gave Mr. Angelos competent and thorough
      representation. The record shows that Mr. Mooney explained to
      Mr. Angelos the nature of the charges against him, the possible
      penalties (including the effect of the “stacking” of the § 924(c)
      charges), and the consequences of rejecting the government’s plea
      offer. Although Mr. Mooney told Mr. Angelos that the decision to
      accept the government’s plea rested with Mr. Angelos, Mr. Mooney
      made sure that Mr. Angelos understood the harsh penalty he faced if
      he refused the offer.

Aplt. App., Vol. II at 375 (footnote omitted).




                                         -7-
      Reviewing this claim de novo while accepting the factual predicates under

the clear error standard, we agree with the district court’s reasoning and

disposition. For reasons we will discuss, Angelos has failed to show that Mooney

provided him with deficient representation during plea bargaining.

                   1. Initial Plea Negotiations

      On November 13, 2002, the government obtained an indictment against

Angelos based on his three sales of marijuana to a confidential informant. This

indictment contained six counts: three counts of distributing marijuana to the

confidential informant; one count of possession of a firearm under § 924(c); and

two less-serious firearms counts. The § 924(c) count was based on his first sale

to Ronnie Lazalde, the confidential informant, which occurred on May 21, 2002.

During this sale, Lazalde allegedly saw a Glock pistol lodged between the seat

and center console of the black BMW car in which he and Angelos consummated

the drug deal.

      Department of Justice policy at the time required a defendant to plead

guilty to the most serious provable offense, which in this case was the § 924(c)

count. After Mooney opened negotiations with the prosecuting attorney, Lund, he

was informed of the “most serious provable offense” requirement. Aplt. App.,

Vol. V at 1602. The prosecutor also told Mooney of the government’s position

that any required disposition would require a plea to the § 924(c) charge, which

carried a minimum five-year term of imprisonment. Id.

                                         -8-
      Angelos contends that Mooney “failed to grasp and effectively

communicate the grave federal sentencing realities working against Angelos,

which included the Government’s policy-driven position on accepting only a

924(c) plea and their belief that they were dealing with a major drug dealer.”

Aplt. Opening Br. at 37-38. 1 The record does not bear out this contention.

Mooney’s testimony shows that he did discuss with Angelos the government’s

position that a plea to the § 924(c) firearm charge would be required as an initial

matter. In addition, Mooney testified that this discussion took place near the

outset of negotiations. Aplt. App., Vol. V at 1602-03, 1612. The problem was

that while Angelos was willing to concede his guilt on the drug charges, he

vehemently denied the factual basis for the § 924(c) charge involving the

confidential informant. Mooney testified, for example, that Angelos was

“adamant” and “credible” in asserting that he did not possess a firearm during his

transactions with Lazalde. Aplt. App., Vol. V at 1568. In fact, Angelos was

“angry,” “very upset” and “very disturbed” about being accused of possessing a

firearm during those transactions. Id. at 1569. Angelos confirmed this by

testifying at the evidentiary hearing that he told Mooney that he did not have a

1
       Throughout his briefing, Angelos emphasizes Mooney’s alleged
incomprehension of various legal and factual realities pertinent to the plea
bargaining process. We do not read these allegations to state a freestanding basis
for an ineffectiveness claim. It is counsel’s performance that forms the gravamen
of an ineffectiveness claim, not his level of understanding. We are only
concerned about Mooney’s alleged lack of comprehension to the extent Angelos
has shown it led to performance that fell short of professional norms.

                                         -9-
firearm with him during the May 2002 transaction. “And did you tell

Mr. Mooney that you would not plead guilty to a crime you did not commit?

A. [Angelos] Yeah.” Id. at 1527-28. 2

      As a result, Angelos told Mooney that he was willing to plead to the

distribution of marijuana charges. Mooney considered these charges indisputable.

Angelos was unwilling, however, to plead to the § 924(c) count. Given the

government’s position that any plea agreement would require a plea to a § 924(c)

count, there was seemingly no basis for the parties to come to terms.

      Angelos asserts, however, that he also communicated to Mooney his

willingness to provide substantial assistance to the government in order to get the


2
      Also at the evidentiary hearing, Angelos admitted he might have had a gun
during at least one of the transactions:

            Q: Were you carrying a firearm on May 21 st, 2002 when you
      sold marijuana to Mr. Lazalde?

            A: I don’t remember, but I know I didn’t have one on the
      console or anywhere visible in the car.

            Q: So you may have been carrying a firearm?

             A: It’s a possibility, but I know I didn’t have one anywhere
      visible.

                                     *    *     *

             A: I couldn’t really remember for sure, but I was almost
      positive I didn’t have one.

Aplt. App., Vol. V at 1526-27.

                                         -10-
firearms charges dropped or otherwise obtain a reduced sentence. Mooney passed

on this information to the government, and set up a meeting to discuss

cooperation.

      Significantly, by the time of the meeting about cooperation, Angelos faced

other serious charges for which he had not yet been indicted. On November 15,

2002, police officers acting on the indictment had arrested Angelos in his

apartment, where he consented to a search of the premises. This search

uncovered marijuana, a large sum of money, and more firearms, including a

loaded Glock pistol and a stolen Walther pistol. 3 In addition, on the day before

his meeting with government agents, a search of the house where Angelos’s

girlfriend lived, found additional guns and drugs attributable to Angelos. The

search revealed body armor, a rifle, two dozen large duffel bags containing

3
        These factual circumstances undermine Angelos’s argument to the district
court that “the soundest and most sensible plea choice that should have been
suggested by counsel” at this point “would have involved Angelos pleading
‘blind’ to the original indictment’s three marijuana charges and then contesting at
trial the single 924(c) count set forth in the original indictment.” Aplt. App.,
Vol. I at 121 n.4. To the extent Angelos continues to press this argument on
appeal (he argues in his appellate briefing that Mooney “failed to understand that
Angelos’s sentencing exposure might have been significantly reduced even
without a fully developed plea agreement with the Government,” Aplt. Opening
Br. at 40), we simply note that a “blind” plea (reached without a plea agreement
with the government) would have been a very risky proposition. A blind plea
would not have prevented Angelos from being indicted and prosecuted on
additional drug and firearms charges resulting from the November 15, 2002,
search or the subsequent search of his girlfriend’s house. It is unsurprising that
Mooney did not recommend this option to Angelos. Mooney’s testimony was that
he believed it was necessary to have all of the charges on the table to succeed in a
settlement.

                                        -11-
marijuana residue, and accounting sheets for the drug transactions. The agents

also found the black BMW used in the controlled buys; a gun was in the trunk of

the car. 4

       The cooperation interview with the government on December 17, 2002 did

not go well. It is uncontested that Angelos presented misleading information to

the government about his drug suppliers. In the opinion of government agents

present at the meeting, he presented himself as an insincere and untrustworthy

person. The agents also believed he had misled them about another factual

matter, the location of the BMW involved in the drug transactions, at the time of

the arrest. The November 15 search also likely suggested to them that Angelos

was a larger player than he let on. To the extent Angelos blames the failure of

this meeting on Mooney (who he alleges did not inform him of the imperative

need to reach a cooperation agreement with the government in order to obtain a

reduced sentence, given the enormity of the § 924(c) charges), he fails to show

that Mooney’s performance was constitutionally deficient.

       Mooney, for example, testified that he explained the value of a cooperation

agreement in obtaining a reduced sentence. Aplt. App., Vol. V at 1585. But

Angelos claims he did not adequately emphasize the severity of the sentence he




4
      In light of this evidence, Angelos’s defense that he only dabbled in small-
time marijuana sales finds scant support in the record.

                                        -12-
faced prior to the meeting concerning cooperation. 5 Angelos’s cooperation

argument boils down to this: had Mooney informed him of the gravity of

potential charges he faced, including more potential § 924(c) counts based on the

additional searches, 6 he would not have misled the government. But even if he

had been forthcoming at the interview, it would have been the government’s

choice whether to enter into a cooperation agreement, which the record discloses

as implausible. He thus fails to show either constitutionally deficient

performance by counsel, or prejudice.

      Angelos also argues that Mooney discouraged him from considering

cooperation after the first effort failed, and that he failed to renew attempts to

obtain a cooperation agreement. This argument cannot succeed because both

Mooney and Lund testified that once Angelos demonstrated his lack of credibility,

the government was unwilling to work with him. Further offers to cooperate

would have been futile.




5
       At some point before the cooperation interview, Mooney informed Angelos
that based on the charges in the initial indictment, he was facing a potential
sentence of seven to eight years, including five years for the single § 924(c)
charge. Id. at 1589. He also told Angelos that “he shouldn’t be surprised to see
the government continuing to give us additional information and continuing to try
to do things that make it look worse.” Id. at 1591.
6
      Mooney testified that he did not know about all the § 924(c) charges
Angelos potentially faced until he received a plea offer from Lund in January
2003. Aplt. App., Vol. V at 1613-14.

                                         -13-
                   2. The Government’s Written Plea Offer

      After the failed cooperation talks, Lund sent a letter to Mooney outlining

the government’s position and its proposal for a plea agreement. This letter,

dated January 20, 2003, made it crystal clear that Angelos faced serious prison

time if he failed to reach a plea agreement with the government. Lund began the

letter by reminding Mooney that the single 924(c) count for which Angelos had

already been indicted “carries a mandatory minimum sentence of five years and a

maximum penalty of life imprisonment.” Aplee. Supp. App., Vol. I at 440. He

then proposed that Angelos plead guilty to one count of distribution of marijuana,

and one 924(c) count, and that he stipulate to a joint sentencing recommendation

of sixteen years’ incarceration. In exchange, the government would dismiss the

remaining counts of the indictment and would agree not to supersede the

indictment.

      If Angelos did not agree to these terms, however, Lund stated that the

government would seek a superseding indictment including five additional 924(c)

counts, potentially exposing Angelos to 130 years of prison time. Lund’s letter

explained that “[s]ubsequent [924(c)] convictions . . . carry a mandatory minimum

sentence of twenty-five (25) years each” and that “[t]he statute mandates that

these sentences run consecutively to each other and to the underlying drug

trafficking crimes.” Aplee. Supp. App., Vol. I at 441.




                                       -14-
      Angelos claims Mooney “dissuad[ed him] from giving due consideration to

the government’s plea offer.” Reply Br. at 4. He argues that Mooney did not

understand the basis for the government’s offer and “expressly and consistently

indicated to [him] that a better deal was possible and that the prosecution was

being ‘completely unfair,’” id., and “completely unreasonable,” id. at 7. He

further asserts that Mooney “failed to understand the legal and practical

consequences of rejecting the Government’s plea offers, and thus failed to

effectively inform and advise Angelos concerning his plea options and their likely

consequences following the Government’s offer.” Aplt. Opening Br. at 39.

      At the evidentiary hearing, Mooney testified that he showed Angelos the

letter from Lund. Aplt. App., Vol. V at 1618. He “went through and discussed

with him each of the ten charges” that were detailed in the letter. Id. Mooney

admitted that he did not present Lund’s sixteen-year proposed sentence in a

positive light. In fact, he recalled that he may have “used an improper anatomical

reference to Mr. Lund” in connection with this proposed sentence. Id. He

expressed to Angelos that he believed the sixteen-year proposal was

unreasonable. In fact, by the time of the evidentiary hearing, he continued to

believe that sixteen years was too long, given the two offenses to which the

government would have required a guilty plea. He believed an appropriate

guideline calculation would have required a sentence of only twelve years.

Id. at 1621.

                                        -15-
      Mooney did not, however, consider his expression of opinion to be a

recommendation to reject the proposed plea agreement or to stop trying to reach a

deal with the government. Id. at 1619. He left the decision whether to accept the

offer to Angelos. Furthermore, contrary to Angelos’s contentions, Mooney did

not suggest a light sentence was probable if he went to trial. He explained to

Angelos that it would be very difficult to avoid at least one 924(c) conviction at

trial if he were indicted for the guns found in his home. Id. at 1622. He further

explained that even one additional 924(c) conviction would bring an additional

sentence of 25 years.

      We agree with the district court that Mooney adequately explained the

government’s offer to Angelos. The fact that Mooney put a negative spin on the

offer and suggested that the government was being “unfair” or “unreasonable” did

not represent deficient performance. We accept the district court's view that

Mooney made it clear to Angelos the decision to accept the proposed plea

agreement was his. Moreover, he encouraged Angelos to submit a counter-offer

that included pleading to a 924(c) count, but Angelos was unwilling to do so.

      Instead, Angelos authorized Mooney to make a counteroffer of a plea that

would not include a 924(c) charge. Mooney explained to Angelos that such an

offer would be unacceptable to the government. Mooney nevertheless conveyed it

to Lund, who rejected it. Mooney even asked Lund, without specific

authorization from Angelos, to consider the possibility that Angelos would plead

                                         -16-
to the two counts and receive a lower sentence than the sixteen years Lund had

suggested, but Lund vetoed that idea as well.

      Angelos contends that Mooney strung him along by contending that he

could get a better offer from the government if he just kept negotiating. But on

the other hand, he also asserts that Mooney cut off plea negotiations too early and

began preparing for trial without adequately exploring the possibility of a

negotiated plea. Mooney’s testimony at the evidentiary hearing explains these

seeming inconsistencies. He did expect to talk the government down from its

initial offer. But without the key bargaining chip—Angelos’s consent to a plea

containing a 924(c) count—his hands were tied. It would have been irresponsible

for him not to prepare for a trial, given Angelos’s unwillingness to plead to a

924(c) count and the government’s insistence on such a plea.

      Angelos further suggests, however, that his reluctance to plead to a 924(c)

count would have evaporated if Mooney simply had understood and conveyed to

him with more mathematical precision the risks associated with failing to take the

government’s offer. On the other side of the “plead or go to trial” scale, he faults

Mooney’s estimate that “if we were victorious at trial on most of the charges and

lost the things that looked like were going to be problematic, we probably were

looking at something that would be between seven and twelve years.” Aplt. App.,

Vol. V at 1627.




                                         -17-
      Angelos makes a number of specific arguments on these points, none of

which ultimately has merit. He asserts that:

      •     Mooney “misunderstood and/or mis-communicated to Angelos how

            the operation of federal sentencing statutes and guidelines

            dramatically increased his mandatory minimum sentence even if he

            were to partially prevail at trial.” Aplt. Opening Br. at 38. Angelos

            does not flesh out this argument, but it appears that he is referring to

            the 924(c) counts. In this regard, it is incontestible that Lund’s letter

            specifically detailed (1) the mandatory minimum sentences, (2) the

            maximum sentences, and (3) the effect of stacking associated with

            924(c), which Mooney in turn discussed with Angelos. See Aplee

            Supp. App., Vol. I at 441. By discussing Lund’s letter with Angelos,

            Mooney adequately conveyed the risks associated with conviction on

            these counts.

      •     Mooney failed to convey to Angelos that even if he prevailed on all

            the contested gun counts at trial, he faced nearly a twenty-year

            sentence. Reply Br. at 6. Mooney bases this contention on the

            government’s position at sentencing that relevant conduct involving

            marijuana alone required a corresponding guideline range of 168 to

            210 months. Aplee. Supp. App., Vol. I at 69. He does not mention,

            however, that the presentence report, prepared after conviction,

                                        -18-
    recommended a sentence of only six and one-half years for the drug

    and money laundering convictions. See Angelos, 433 F.3d at 743. It

    appears, therefore, that Mooney’s estimate was closer to the

    appropriate sentence on these counts than the government’s

    sentencing position.

•   Mooney “repeatedly and prejudicially suggested to Angelos that he

    was unlikely to serve more than a few years in prison even if they

    lost at a trial.” Aplt. Opening Br. at 38. The evidentiary hearing

    testimony does not support this claim.

•   Mooney failed to effectively advise Angelos that “he was certain to

    receive a longer sentence—and probably a much longer sentence—if

    he went to trial than if he pleaded guilty even on the specific terms

    proposed by the Government.” Id. at 39. Angelos fails to explain or

    detail his argument on this point. Had he been successful at trial in

    limiting his convictions to only a single 924(c) count related to the

    guns at his home and the marijuana and money laundering offenses,

    he would not have received a “much longer sentence” than the

    sixteen years offered by the government.

•   Mooney failed to explain to Angelos that “despite his assertions that

    he did not possess a gun during marijuana sales to an informant, he

    could still be convicted of one or more § 924(c) counts based on the

                                -19-
            discovery of guns in his home and other locales.” Aplt. Opening Br.

            at 39. On the contrary, Mooney “explain[ed] how hard it would be

            were [Angelos] indicted for the guns in his home to avoid at least

            one 924(c) conviction.” Aplt. App., Vol. V at 1622. This estimation

            proved correct. The jury acquitted Angelos of two 924(c) charges

            involving guns found at his girlfriend’s residence, but convicted him

            for guns in his home and in connection with sales to the confidential

            informant.

      •     Mooney failed to explain to Angelos that “despite his assertions that

            he did not possess a gun during marijuana sales to an informant, he

            would be subject to a mandatory minimum sentence of 50 years or

            more if a jury did not believe his assertions.” Aplt. Opening Br. at

            39-40. The letter from Lund explained how the 924(c) counts

            worked, including the mandatory minimums. Mooney was not

            constitutionally required to calculate every possible contingency, but

            it is clear that Angelos had information disclosing the worst case

            scenario.

                                    *    *     *

      In sum, Angelos fails to show that Mooney performed deficiently during

plea bargain negotiations. In light of this, we need not consider further whether

he was prejudiced by the alleged deficient performance.

                                        -20-
      III. Ineffective Assistance at Trial

      Angelos also raises a number of instances of Mooney’s alleged

ineffectiveness in preparing for and representing him at trial. We find no merit in

these arguments.

                A. Lazalde’s Gun Testimony

      Angelos first points to the testimony of the confidential informant, Ronnie

Lazalde. Two of the 924(c) counts on which the jury convicted Angelos involved

his possession of firearms during sales to Lazalde. In his direct appeal, we

previously held that the “evidence overwhelmingly supported the jury’s findings

that Angelos knowingly carried and possessed the pistol during [these] controlled

purchases.” Angelos, 433 F.3d at 749. Angelos contends, however, that with

adequate pre-trial investigation, Mooney could have raised a reasonable doubt

concerning Lazalde’s testimony about the presence of firearms during these

transactions.

                     1. May 21, 2002 Sale

      Lazalde testified that during the controlled buy of May 21, 2002, he saw a

pistol lodged between the seat of the BMW and the center console when he and

Angelos consummated the drug purchase. Angelos contends Mooney should have

better impeached this testimony because (1) the initial police reports concerning

the controlled buy did not mention a pistol; and (2) a later report by a detective




                                        -21-
who recorded Lazalde’s statement stated that the pistol was on the car’s console,

not tucked in a seat as Lazalde testified at trial.

      Mooney cross-examined both the detective and Lazalde at some length

about the contradictions in the police reports and their trial testimony concerning

the existence, whereabouts, and visibility of the gun. See Aplt. App., Vol. IV at

1059, 1062-65, 1135-39, 1143. He then argued to the jury that the contradictions

made the testimony unworthy of belief. Id., Vol. V at 1482-83, 1485-87.

Although Angelos argues about the need for more effective investigation and

cross-examination concerning these contradictions, it is clear from the trial record

that Mooney adequately impeached Detective Mazuran and Lazalde concerning

these issues.

                    2. June 4, 2002 Sale

      Lazalde testified that he saw a firearm in an ankle holster on Angelos’s leg

during the June 4, 2002 sale. Angelos argues that the government’s surveillance

photos prove that it would have been impossible for Lazalde to see the firearm

during the transaction. He contends the position of Angelos’s car blocked

Lazalde’s line of sight.

      But Mooney did question Lazalde at trial, using the surveillance photos,

about whether he could see the gun in the ankle holster given his position and that

of the car. See Aplee. Supp. App., Vol. I at 317-18. He also argued about

Lazalde’s line of sight in his closing argument to the jury. See Aplt. App., Vol. V

                                           -22-
at 1483-85. Even so, Angelos contends he should have done more to impeach

Lazalde. Specifically, he argues Mooney’s cross-examination “should have

included the use of an expert witness to examine and assess the government’s

surveillance photos” and to provide expert testimony concerning line-of-sight

issues. Aplt. Opening Br. at 44.

        “Federal Rule of Evidence 702 instructs us to admit specialized knowledge

if it will ‘assist the trier of fact to understand the evidence.’ That Rule dictates a

common-sense inquiry of whether a juror would be able to understand the

evidence without specialized knowledge concerning the subject.” United States v.

Becker, 230 F.3d 1224, 1231 (10th Cir. 2000) (quotation omitted). Angelos fails

to make the case that expert testimony was required to impeach Lazalde’s

testimony, particularly when the surveillance photographs were available to the

jury.

                    3. New Arguments Made in Reply Brief

        In his reply brief, Angelos raises a number of new arguments pertaining to

the 924(c) charges in connection with the controlled buys. First, he argues that

counsel was ineffective in failing to explain to the jury why Lazalde changed his

story. See Reply Br. at 17-19. He contends Mooney should have argued the

inconsistencies in Lazalde’s story were attributable to his desire to conform his

testimony to the 924(c) gun statute and to avoid contradicting the statements of

other witnesses. Angelos fails to show he made this argument to the district court

                                          -23-
in the context of his ineffective assistance claim. We could decline to consider

the argument on that basis alone. But we note in addition that Angelos fails to

explain how trial counsel who points out numerous contradictions in a witness’s

account is constitutionally ineffective merely by failing to offer a theory to

explain the inconsistencies. In any event, it was no mystery at trial that Lazalde

had received substantial benefits from the government in exchange for his

testimony (“[H]e was doing all this to tell the truth because he had a motive to

stay out of jail and turn his life around.” Aplt. App., Vol. V. at 1504.)

      We decline to consider two other arguments. (1) that Mooney

unconstitutionally failed to impeach Lazalde about changing his story in the

police report from one stating he saw Angelos wearing a holster, to testimony that

he “allegedly witnessed and was even able to make out the model of the gun,”

Reply Br. at 22; and (2) Mooney unconstitutionally failed to cross-examine

Officers Bailey and Cottam concerning their failure to observe what Lazalde

claimed to see during their surveillance of the June 4, 2002, controlled buy. We

see no indication Angelos made these arguments to the district court. “Absent

extraordinary circumstances, we will not consider arguments raised for the first

time on appeal.” Curtis v. Chester, 626 F.3d 540, 548 (10th Cir. 2010) (quotation

omitted).




                                         -24-
             B. Admission of Police Report

      Angelos also argues that counsel should have obtained “admission of the

original police reports that failed to reflect any mention of weapons during any of

the hand-to-hand sales.” Aplt. Opening Br. at 49. Mooney did seek admission of

the police reports, and the district court rejected his request. We upheld this

evidentiary decision on appeal. Angelos, 433 F.3d at 749-50. 7 But even without

the police reports in evidence, Mooney was able to cross-examine the officer who

prepared the reports about the omissions. Aplt. App., Vol. IV at 1047-1052,

1054-67.

             C. Impeachment of Chelsea Davenport

      In his reply brief, Angelos argues that “Mooney failed to investigate and

effectively impeach Chelsea Davenport, a key government witness and estranged

girlfriend of Angelos who testified at trial that Angelos frequently carried a

firearm.” Reply Br. at 23. He also contends (1) Mooney incompetently opened

the door to Davenport’s testimony that Angelos beat her while she was pregnant,

leading to the premature birth of their child and forcing her to mace him in self-

defense, and (2) Mooney was unprepared to present an accurate account of these


7
      In upholding the district court’s decision, we did state that “Angelos’s
counsel made no attempt to explain why the reports were admissible or to
question the district court’s ruling.” Angelos, 433 F.3d at 750. This does not
demonstrate constitutionally ineffective assistance, however. Angelos fails to
show that there was a legally-sufficient basis for admission of the reports that
Mooney should have pursued.

                                        -25-
events based on the actual police reports and other evidence. The government

argues Angelos failed to raise these latter claims before the district court, and we

agree. 8 We therefore consider only the issue raised in the district court: whether

counsel failed to subject Davenport’s testimony to adequate impeachment “for

bias and for inconsistent statements.” Aplt. App., Vol. I at 129.

      We agree with the district court that Mooney’s performance in impeaching

Davenport was not constitutionally deficient. He cross-examined her thoroughly

about her bias and irrational behavior toward Angelos. See Aplee. Supp. App.,

Vol. III at 976-94. He also elicited testimony from other witnesses about her

angry and threatening behavior toward Angelos. Id. at 1001-02, 1029-30,

1103-04. For example, he obtained testimony she drove outside a recording

session Angelos was conducting with a female singer, and “persistently honk[ed]

[her car] horn maybe for 45 minutes at a time” to interfere with the recording

session. Id. at 1029. Another witness testified Davenport “would throw big

tantrums, pull – rip her hair out, cry, cut her face with a razer [sic]. She was

crazy. Just sickly obsessed.” Id. at 1104. Counsel also questioned Davenport

about prior inconsistent statements. See id. at 979, 983, 991.

      In short, Mooney’s performance at trial was not constitutionally deficient.



8
       Angelos contends in his reply brief that he did raise the claims; his
citations to the record, however, are unconvincing on this point. See Aplt. Reply
Br. at 23-24 n.12 (citing Aplt. App., Vol. I at 129-30, 237 n.2).

                                         -26-
      IV. Evidentiary Hearing

      As we have shown, Angelos’s claims of ineffective assistance of counsel at

trial do not meet the Strickland threshold. The district court therefore did not

abuse its discretion by failing to grant him an expanded evidentiary hearing

concerning them. (Nor, for reasons we will describe, did any of his other issues,

on which we deny COA, require an evidentiary hearing.)

      Angelos makes one additional argument worth noting. He contends our

grant of a COA on his ineffective assistance at trial claim is inconsistent with the

district court’s determination no evidentiary hearing was necessary on the claim

because “the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). This argument

misperceives the nature of a COA. The grant of a COA involves only a threshold

inquiry that “does not require full consideration of the factual or legal bases

adduced in support of the [petitioner’s] claims. In fact, the statute forbids it.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In granting Angelos a COA, we

conducted only “an overview of the claims in [his] petition and a general

assessment of their merits.” Id. This overview did not permit us to make any

conclusive assessment of the state of the record or its bearing on the ultimate

question of whether an evidentiary hearing was required.




                                         -27-
           V. Procedurally-Defaulted Claims

           We now turn to the claims on which we deny Angelos a COA. The district

court barred his Eighth Amendment and equal protection claims, finding that this

court had previously considered and rejected them in his direct appeal. See

United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (holding issues

disposed of on direct appeal will not generally be considered in § 2255 collateral

attack, absent intervening change in law). It also barred his Second Amendment

claims, Fifth Amendment vindictive prosecution and prosecutorial misconduct

claims, and separation-of-powers claims because they could have been raised on

direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003); United

States v. Frady, 456 U.S. 152, 167-68 (1982). Angelos argues that all of these

claims should be considered on the merits because “they involve claims for which

a procedural bar is inappropriate and/or because [he] can readily satisfy one or

more of the established exceptions to procedural bar rules.” Aplt. Opening Br.

at 26. 9

           “There are . . . two well recognized exceptions under which a defendant

may escape application of the procedural bar against consideration of defaulted

claims.” United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004). First, he

may show “cause and prejudice,” that is, that he had “both good cause for failing

9
       Angelos makes no argument specific to his separation of powers and equal
protection claims. Accordingly, we need not address the issue of whether he is
entitled to a COA as to these claims.

                                           -28-
to raise the issue earlier, and that the court’s failure to consider the claim would

result in actual prejudice to his defense[.]” Id. 10 Alternatively, if he can show

that “failure to consider the federal claims will result in a fundamental

miscarriage of justice, the court may reach the merits of the claimed

constitutional deficiencies despite the procedural bar.” Id. (quotation omitted).

We now consider whether he has satisfied either of these exceptions with respect

to his barred claims.

             A. Second Amendment Claim

      In his § 2255 motion, Angelos advanced a claim that “the 25-year term of

imprisonment as applied in this case for having firearms in his home raises

serious concerns under any individual rights interpretation of the Second

Amendment’s protection of the right to ‘keep and bear arms.’” Aplt. App., Vol. I

at 158. He contends that he demonstrated cause for failing to raise this Second

Amendment claim on direct appeal, because the claim did not become available to


10
       Angelos makes a two-sentence argument that his trial counsel’s failure to
raise certain claims constitutes cause and prejudice that should excuse his
procedural default. Aplt. Opening Br. at 32-33. His default extends, however,
not only to arguments omitted at trial, but more importantly to those omitted on
direct appeal. Since his trial counsel also represented him in his direct appeal, it
is unclear whether he contends that counsel’s failure to raise certain claims on
direct appeal constituted ineffective assistance of counsel. But he has failed to
show that counsel’s failure to raise his Second and Fifth Amendment arguments
on direct appeal represented deficient performance, given the apparent lack of
merit of these claims. (Counsel did, of course, raise his Eighth Amendment
claims on direct appeal and therefore could not have been ineffective for omitting
them.).

                                          -29-
him until the Supreme Court granted certiorari in District of Columbia v. Heller,

128 S. Ct. 2783 (2008). He asserts it would have been both futile and frivolous to

have raised his claim prior to Heller, which was issued after disposition of his

direct appeal.

      Angelos’s argument that he could not have raised his claim prior to Heller

is unavailing. Futility does not constitute cause to excuse a procedural default if

it means simply that a claim would have been unacceptable to a particular court at

a particular time. Bousley v. United States, 523 U.S. 614, 623 (1998). Angelos

has failed to “demonstrate that his claim was so novel [at the time of direct

appeal] that its legal basis was not reasonably available to counsel.” United

States v. Wiseman, 297 F.3d 975, 979 (10th Cir. 2002). Nor was there anything

particularly novel about a Second Amendment attack on a conviction under

§ 924(c) at the time he filed his direct appeal. See, e.g., United States v. Hager,

22 F. App’x 130, 132 (4th Cir. 2001) (per curiam); Box v. United States,

904 F. Supp. 773, 777 n.4 (N.D. Ill. 1995), aff’d, 106 F.3d 403 (7th Cir. 1997).

Angelos has therefore failed to show cause to excuse his procedural default based

on the alleged novelty or futility of his Second Amendment claim.

      Moreover, even if he could show cause for omitting this claim from his

direct appeal, he fails to show prejudice. The majority in Heller made it clear

that “the right secured by the Second Amendment is not unlimited” and that

“nothing in our opinion should be taken to cast doubt on longstanding

                                         -30-
prohibitions on the possession of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places such as schools and

government buildings[.]” Heller, 128 S. Ct. at 2816-17. More importantly, the

charges against Angelos were not simple felon-in-possession claims, but charges

of possessing and using firearms to facilitate large-scale drug trafficking.

      Since Heller was decided, circuit courts have uniformly rejected Heller

challenges to convictions under § 924(c). See, e.g., Costigan v. Yost,

334 F. App’x 460, 462 (3d Cir. 2009) (stating Heller’s reasoning “does not render

[§ 924(c)(1)(A)] unconstitutional”); United States v. Jackson, 555 F.3d 635, 636

(7th Cir.), cert. denied, 130 S. Ct. 147 (2009); United States v. Frazier,

314 F. App’x 801, 807-08 (6th Cir. 2008), cert. denied, 129 S. Ct. 1652 (2009).

Cf. United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009) (upholding

statutory prohibition on possession of firearm by felon under 18 U.S.C. § 922(g)

against Heller challenge).

      In sum, Angelos has failed to show his entitlement to a COA on his Second

Amendment claim.

             B. Fifth Amendment Claims

      Angelos contends a defendant should not be required to bring Fifth

Amendment claims of prosecutorial vindictiveness and misconduct until collateral

review proceedings. His view is that the factual basis for such claims often is

unavailable to the defendant until after his direct appeal is complete. He

                                         -31-
analogizes such claims to ineffective assistance of trial counsel claims, for which

the record generally is not developed until collateral review. See United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance

of counsel claims should be brought in collateral proceedings, not on direct

appeal [because the] factual record must be developed in and addressed by the

district court in the first instance for effective review.”) We decline to adopt a

categorical rule excusing defendants from bringing prosecutorial vindictiveness

and misconduct claims on direct appeal. Angelos’s argument that these claims

are of the type that cannot adequately be raised until collateral proceedings is

unpersuasive.

      The appropriate remedy available to a defendant who discovers evidence of

prosecutorial misconduct or vindictiveness after completion of his direct appeal is

to use that evidence as cause to excuse his procedural default. Angelos argues he

has new evidence “that federal prosecutors decided to pursue multiple charges

against Angelos with the threat of extreme mandatory minimum sentencing terms

only after--and perhaps only because--prosecutors came to believe Angelos was

unwilling to cooperate with authorities.” Aplt. Opening Br. at 22 n.11. He

contends that he “has reason to believe that the government’s aggressive and

oppressive approach to plea bargaining following the original indictment was

motivated, at least in part, to punish Angelos for his interest in exercising his

constitutionally protected right not to cooperate with authorities.” Id. at 34.

                                         -32-
      Even assuming such allegations show cause to excuse his procedural

default, he has failed to show the required prejudice. As the district court noted,

nothing in the record or in Angelos’s arguments suggests that the prosecution

behaved unconstitutionally in its charging decisions. Angelos made a tactical

choice to reject the plea bargain offered by the government with its associated

terms and requirements, and to proceed to trial. He does not assert the

government lacked probable cause to charge him with the offenses identified in

the second superseding indictment. See United States v. Sarracino, 340 F.3d

1148, 1178-79 (10th Cir. 2003). While he suggests the prosecution in his case

may have persuaded the confidential informant to lie about his possession of a

firearm during one of the controlled buys, his contentions about government-

sponsored lying remain just that--unsupported speculation.

      In sum, he has failed to show actual prejudice that would excuse the

procedural bar.

             C. Eighth Amendment Claim

      The district court barred Angelos’s Eighth Amendment claim because it

was raised and rejected in this court’s decision on his direct appeal. He contends,

however, that “landmark intervening changes in applicable Supreme Court law

and relevant constitutional facts” make his Eighth Amendment claim, considered

in tandem with his Second Amendment argument, “ripe and proper for review on

the merits.” Aplt. Opening Br. at 28. This argument lacks merit.

                                         -33-
      The alleged landmark changes on which Angelos relies include the Second

Amendment Heller case, and two new Eighth Amendment cases, Kennedy v.

Louisiana, 128 S. Ct. 2641 (2008) and Graham v. Florida, 130 S. Ct. 2011

(2010). Neither Kennedy nor Graham, alone or in tandem with Heller’s Second

Amendment conclusions, however, requires us to alter the proportionality analysis

contained in our previous opinion. See Angelos, 433 F.3d at 750-53. We

therefore deny Angelos a COA on his Eighth Amendment claim.

             D. Miscarriage of Justice

      Angelos contends that he has shown a “fundamental miscarriage of justice”

requiring this court to “reach the merits of the claimed constitutional deficiencies

despite the procedural bar.” Cervini, 379 F.3d at 990-91. He argues that he

meets this standard because he is “actually innocent” of one of the gun possession

convictions. To meet this exception to procedural bar, however, he must show

that the constitutional errors he asserts likely “resulted in the conviction of one

who was actually innocent.” Id. at 991 (emphasis added) (quoting Schlup v. Delo,

513 U.S. 298, 322 (1995)). Neither his Second Amendment nor his Eighth

Amendment claims, both of which target the severity of his sentence rather than

the fact of his conviction, satisfy this causal nexus. Addressing the alleged

constitutional sentencing errors would not vitiate his convictions; at best, it would

require that he be re-sentenced. Cf., e.g., United States v. Richards, 5 F.3d 1369,




                                         -34-
1371 (10th Cir. 1993) (stating one “cannot be actually innocent of a noncapital

sentence”).

      His Fifth Amendment claims, if successful, could conceivably affect the

disposition of the § 924(c) count as to which he claims actual innocence. But as

we have seen, these Fifth Amendment claims fail on the merits, because he has

failed to show that the prosecution violated the Constitution in its charging

decisions.

      Angelos also argues that separate and apart from any concern about

innocence, he meets the miscarriage of justice standard because the district court

concluded the mandatory sentence he received on the firearm counts appeared

“cruel, unjust, and irrational.” Aplt. Opening Br. at 33 (quoting United States v.

Angelos, 345 F. Supp. 2d 1227, 1230 (D. Utah 2004)). He identifies no authority

that would treat an “unfair” sentence alone as a grave miscarriage of justice

sufficient to excuse procedural default. He has not shown his entitlement to a

COA on this issue.

      VI. Discovery and Evidentiary Hearing

      Angelos also argues that the district court abused its discretion by failing to

permit him to conduct discovery or otherwise to submit evidence in support of his

claims. He makes two separate arguments concerning the development of the

evidentiary basis for his claims. In the first argument, Angelos contends that he

already possesses evidence he wished to present for the district court’s

                                         -35-
consideration, but was denied leave to do so. In the second, he requests an

opportunity to develop additional evidence through discovery.

      Angelos complains that he alerted the district court in his motion for

reconsideration that he had additional evidence he wished to present in support of

his Fifth and Sixth Amendment claims. He contends that the district court “issued

an order denying the motion without reference to the new evidence.” Aplt.

Opening Br. at 25 n.13. 11 This contention misstates the record. In response to his

motion, the district court specifically stated:

      [Angelos] also claims he has obtained new evidence since the
      December 3, 2007 filing of his § 2255 motion and contends he has
      the right to introduce the evidence into the record at an evidentiary
      hearing.

             In his motion for reconsideration, Mr. Angelos does not
      describe the evidence he has since collected or why such evidence
      was unavailable before the filing of the § 2255 motion. He does not
      clarify why he was unable to present the unidentified evidence, or at
      least alert the court to such evidence, more than two days before an
      evidentiary hearing which all understood to be limited to a separate
      issue. Given the vagueness of Mr. Angelos’s motion for
      reconsideration, and its timing . . . the court denies his request to
      submit evidence and arguments during the [evidentiary] hearing that
      do not relate to the issue for which the hearing was originally set.

Aplt. App., Vol. II at 296-97.


11
       Angelos attempts to split hairs by arguing that the district court’s order
only addressed new evidence acquired before October 2008, not the evidence that
he acquired after that date and indicated a desire to present in his motion. See
Aplt. Opening Br. at 24-25 n.13. There is no indication in the district court’s
order, however, that it did not intend to address all of the new evidence Angelos
purported to possess at the time he filed his motion.

                                         -36-
      Angelos fails to show that this analysis represents an abuse of discretion.

We therefore deny him a COA on his claim that the district court improperly

denied him leave to submit additional evidence on his Fifth Amendment claims.

      Angelos also asserts that the district court erred in denying his requests for

discovery. The district court reasoned that he (1) failed to provide any proposed

discovery to the court, in violation of Rule 6(b) of the Rules Governing § 2255

Proceedings, and (2) failed to show “good cause” for discovery as required by

Rule 6(a) of those rules. It noted that although Angelos had presented some

circumstantial evidence relating to the issue of prosecutorial vindictiveness or

misconduct, the alleged evidence did not rise to a showing of “good cause” for

discovery as to these issues. There is no abuse of discretion in this determination,

and we therefore deny COA on this issue.

      Finally, Angelos fails to show anything in the files and records of the case

that would warrant an evidentiary hearing on his Fifth Amendment claims. The

issue of whether his Second Amendment and Eighth Amendment claims were

procedurally barred involved issues of law that did not warrant an evidentiary

hearing.




                                        -37-
                                  CONCLUSION

      The judgment of the district court is AFFIRMED concerning Angelos’s

claims of ineffective assistance of counsel during plea negotiations and trial, and

concerning the district court’s failure to hold an evidentiary hearing on the

ineffective assistance at trial claims. We DENY him a COA pertaining to the

other issues raised on appeal, and DISMISS the appeal as to those issues.


                                                    Entered for the Court



                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                        -38-
