                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           MAY 9 2001

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-3229
 v.                                              (D.C. No. 00-CV-3017-JWL)
                                                           (Kansas)
 JAMES WALTON,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.


      James Walton brought this pro se action under 28 U.S.C. § 2255. He

alleges he received ineffective assistance of counsel in connection with his guilty

plea proceedings, and seeks to have his guilty plea set aside. 1

      *
       After examining appellant’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(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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
         Although Mr. Walton’s appellate pleadings at times appear to request only
that this court remand for an evidentiary hearing on his claims, read liberally we
believe he is ultimately seeking the vacation of his guilty plea. Our disposition of
      Pursuant to a plea agreement, Mr. Walton pled guilty to one count of

conspiracy to distribute cocaine and cocaine base and one count of conspiracy to

launder money. The agreement provided that Mr. Walton would fully cooperate

with the government by, among other things, participating in debriefings and

testifying in court as necessary. In exchange, the government agreed that it would

move the sentencing court for a downward departure under U.S.S.G. § 5K1.1 if

the United States Attorney’s office, in its sole discretion, determined that Mr.

Walton had provided substantial cooperation.

      One of Mr. Walton’s coconspirators, Sylvester Anderson, went to trial. The

government ultimately determined that it did not require Mr. Walton’s testimony

in prosecuting Mr. Anderson, and Mr. Walton agreed to testify on Mr. Anderson’s

behalf. The government subsequently decided that Mr. Walton had testified

falsely in this trial and that his lack of credibility, assessed in part on the basis of

this testimony, rendered him unable to provide substantial assistance to the

government’s investigation of other drug dealing activities. Prior to his

sentencing, Mr. Walton learned that the government did not intend to move for a

downward departure under section 5K1.1. He then moved the district court to

either compel the government to file the motion or allow him to withdraw his




his appeal subsumes his allegation that the district court erred in resolving his
case without holding such a hearing.

                                           -2-
guilty plea. The court denied Mr. Walton’s request and sentenced him to

concurrent sentences of life in prison and 240 months. Mr. Walton appealed and

we affirmed in an unpublished order and judgment. See United States v. Walton,

No. 97-3138, 1998 WL 544310 (10th Cir. Aug. 26, 1998).

      Mr. Walton brought this section 2255 petition claiming his trial counsel

was ineffective in several regards with respect to his plea proceedings and his

testimony at Mr. Anderson’s trial. 2 The district court denied relief without an

evidentiary hearing, ruling that most of Mr. Walton’s claims were in the form of

bare conclusory allegations not subject to consideration by the court. The court

did, however, address some of his claims in detail. The court denied Mr. Walton

relief on his allegations that his counsel (1) coerced his guilty plea by telling him

that if he went to trial he would likely be convicted and receive a life sentence,

and by telling Mr. Walton that he would seek to withdraw as counsel if Mr.

Walton decided to go to trial; (2) provided him incorrect information as to the

sentence he would receive if he accepted the plea bargain; (3) was ineffective in

failing to inform Mr. Walton that if he testified on behalf of Mr. Anderson the

government would not file a section 5K1.1 motion; and (4) improperly advised

him to admit guilt with respect to a number of overt acts itemized by the


      2
         Mr. Walton also alleged that his appellate counsel was ineffective in
failing to raise an issue. The district court resolved this claim adversely to Mr.
Walton and he does not challenge that ruling on appeal.

                                         -3-
government at the plea colloquy even though counsel knew Mr. Walton

maintained he had not committed them.

      Mr. Walton appeals, contending the court erred in failing to construe his

pro se pleadings liberally and in failing to hold an evidentiary hearing. In

addition, Mr. Walton renews his argument that his counsel was ineffective in

misinforming him as to the consequences of the plea agreement and the sentence

he would receive, and that as a result his plea was involuntary. Finally Mr.

Walton makes the bare assertion that the district court erred in resolving the rest

of his ineffectiveness claims, although he does not specify in what manner the

court’s rulings were in error.

      In order to establish that he received ineffective assistance of counsel, Mr.

Walton must show that his counsel’s performance was constitutionally deficient,

in that it fell below an objective standard of reasonableness, and that the deficient

performance prejudiced him in some way. See Strickland v. Washington, 466

U.S. 668, 687-88, 691-92 (1984). When, as here, the defendant has pled guilty,

he must show that “there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty,” and would have proceeded to trial. Hill v.

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

      We turn first to Mr. Walton’s claim that his plea was involuntary because

his counsel misinformed him as to the consequences of that plea by telling him he


                                         -4-
would only receive seventeen and a half years imprisonment. As the district court

observed, Mr. Walton’s pleadings themselves demonstrated that Mr. Walton knew

counsel’s sentence estimation was based on the assumption that Mr. Walton

would receive the benefit of a section 5K1.1 downward departure. Moreover, as

the district court pointed out, it was made clear to Mr. Walton during the plea

colloquy that whether he received a downward departure was entirely within the

government’s discretion. Mr. Walton was told that the court had no power to

compel the government to make a section 5K1.1 motion, and that Mr. Walton had

“‘to satisfy the Government that you have provided substantial assistance, and it’s

up to the Government to decide whether or not they’re going to bring such a

motion before the Court.’” Rec., vol. I, doc. 995 at 11 n.4 (quoting plea hearing

transcript, July 23, 1996, at 17-18). Mr. Walton was also told that “‘even if you

think you’ve provided substantial assistance and the Government doesn’t, you

can’t come to the Court and file a motion and ask the judge to give you some

relief at that particular point in time. That’s a matter between you and

Government counsel.’” Id. at 11-12 n.4. Mr. Walton presented no evidence to

counter the evidence that he knew the discretionary nature of a downward

departure, or to counter his statement at his plea colloquy that he was not relying

on a promise or prediction of sentence in pleading guilty. Accordingly, we

conclude Mr. Walton has failed to show he would not have pled guilty, absent


                                         -5-
counsel’s estimate of the sentence he would receive if given a downward

departure.

      We turn briefly to Mr. Walton’s allegations that the district court erred in

failing to construe his pleadings liberally and in rejecting his remaining claims of

incompetent counsel. While it is true that pro se pleadings must be construed

liberally, “it is [not] the proper function of the district court to assume the role of

advocate for the pro se litigant. The broad reading of the plaintiff’s complaint

does not relieve the plaintiff of the burden of alleging sufficient facts on which a

recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). We have reviewed the pleadings with respect to the claims the

district court deemed conclusory and we agree with that assessment.

      Mr. Walton also makes the conclusory assertion that the district court erred

in its resolution of the remaining claims of ineffectiveness. He has failed to set

out specific allegations of error and we will not provide them for him. Moreover,

Mr. Walton raised in his prior appeal all of the arguments he makes in these

proceedings. In affirming the denial of relief in his prior appeal, we made the

following pertinent observations. The district court’s determination that the

government acted in good faith in deciding not to move for a downward departure

was supported by the evidence and was not clearly erroneous. Walton, 1998 WL

544310, at **3. The government’s decision that Mr. Walton’s testimony was not


                                           -6-
credible was not based solely on inconsistencies between his testimony at Mr.

Anderson’s trial and facts he admitted at the plea colloquy on the advice of his

counsel. Id. at **4 n.5. Thus counsel’s advice, even if erroneous, was not the

sole cause for Mr. Walton’s failure to receive a downward departure. Indeed, in

this regard we stated that the record supported the district court’s finding that Mr.

Walton was “ably and aggressively represented by experienced and competent

counsel.” Id. at **5. Finally, we noted that before Mr. Walton testified at Mr.

Anderson’s trial, he spoke with Mr. Anderson’s attorney, who was aware of the

inconsistencies between Mr. Walton’s statements then and the prior debriefing

notes, and who pointed out to Mr. Walton “that if his testimony was inconsistent

with the information he provided in the debriefings, it would be unlikely the

Government would file a § 5K1.1 motion.” Id. at **4 n.6. Mr. Walton was thus

informed by a credible source before he testified in Mr. Anderson’s trial that his

testimony would likely jeopardize his ability to receive a downward departure.




                                         -7-
      We conclude that Mr. Walton has failed to make a substantial showing of

any claim of ineffective assistance of counsel. Accordingly, we DENY his

motion for a certificate of appealability and DISMISS his appeal. 3

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Chief Judge




      3
        Our ruling renders moot Mr. Walton’s allegation that the district court
erred in resolving his claims without an evidentiary hearing.

                                        -8-
