                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 9, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff–Appellee,                       No. 11-5015
          v.                                (D.C. Nos. 4:07-CV-00394-TCK-FHM
                                                and 4:04-CR-00182-TCK-2)
 JAMES LEE WATSON,                                       (N.D. Okla.)

               Defendant–Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.



      On June 3, 2011, this court granted Defendant James Watson a certificate

of appealability to appeal the district court’s denial of Defendant’s § 2255 habeas

petition without an evidentiary hearing. The government subsequently filed a

response brief and a motion to supplement the record on appeal, which this court

granted. Defendant also filed a reply. Having reviewed all of these materials, we

now affirm the district court’s decision.

      In his habeas petition and sworn affidavit in support, Defendant asserted


      *
        This order and judgment is not binding precedent, except under the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.
that his first attorney told him the government was not offering any plea, although

the government had in fact offered a plea agreement under which Defendant

would face only a thirty-two-year sentence. He further asserted his second

attorney did not inform him of this plea offer until it was already off the table,

and that he would have accepted this plea bargain if he had been advised of its

existence and his possible sentencing exposure before then.

      The supplemental record materials submitted by the government refute

Defendant’s allegations. In particular, the government has supplemented the

record on appeal with the transcript from a hearing held on Defendant’s pre-trial

motion to remove his first attorney from the case. At this hearing, Defendant

explained he was dissatisfied with this attorney because of the attorney’s repeated

attempts to get him to accept the government’s plea agreement. This

contemporaneous statement renders Defendant’s current assertion that he was

unaware of the plea agreement completely incredible.

      A district court is not required to hold an evidentiary hearing on claims that

are conclusively refuted by the record. See 28 U.S.C. § 2255(b). We thus see no

error in the district court’s denial of Defendant’s habeas petition without an

evidentiary hearing. The court’s decision is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Monroe G. McKay
                                                Circuit Judge

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