                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 16 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BOBBY TRUJILLO,

                Petitioner-Appellant,

    v.                                                   No. 98-2105
                                                  (D.C. No. CIV-95-149-HB)
    RON LYTLE, Warden, Southern New                       (D. N.M.)
    Mexico Correctional Facility and
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BALDOCK , and HENRY , 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)(C); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 Bobby Trujillo appeals the district court’s dismissal of his

petition for a writ habeas corpus pursuant to 28 U.S.C. § 2254. This matter is

before the court on petitioner’s application for a certificate of appealability for

leave to appeal pursuant to 28 U.S.C. § 2253(c). Because we determine that

petitioner has failed to demonstrate a substantial showing of the denial of a

constitutional right, we deny his application and dismiss the appeal.

      On May 2, 1991, petitioner entered a guilty plea to one count of criminal

sexual contact with a minor, one count of criminal sexual penetration of a minor,

and one count of kidnaping. He was sentenced to twenty-seven years of

incarceration followed by two years of parole. Petitioner did not seek to

withdraw his plea, nor did he file a direct appeal of his conviction. Through new

counsel, however, he filed a motion for reconsideration of his sentence, which

was denied on October 24, 1991.

      On September 21, 1994, he filed a petition for writ of habeas corpus in

state court, which was denied, as was his petition for a writ of certiorari to the

New Mexico Supreme Court. In February 1995 petitioner filed a federal habeas

petition. The court held an evidentiary hearing, after which the magistrate judge

recommended denial of the petition. The district court adopted the magistrate

judge’s proposed findings and recommendations and denied the petition on March




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10, 1998, and denied petitioner’s request to issue a certificate of appealability on

April 20, 1998.

       In his appeal to this court, petitioner alleges that: (1) his guilty plea was

not knowingly or voluntarily entered because his counsel gave him false

assurances as to the consequences of his plea; and (2) he was deprived of

effective assistance of counsel because his counsel did not properly investigate

his case and timely notify him of the sentencing proceedings, which precluded the

introduction of mitigating circumstances.

       We have reviewed the entire record, including the district court’s order, the

magistrate judge’s report and recommendation, and petitioner’s brief and

application for a certificate of appealability. We agree with the magistrate judge

that petitioner has failed to sufficiently rebut his own declarations made at his

plea hearing that he understood that he was facing at least eighteen years but not

more than thirty years of incarceration and that no one had promised him he

would receive anything close to eighteen years or a light sentence.     See Rec. Doc.

68, at 3; Blackledge v. Allison , 431 U.S. 63, 74 (1977) (“Solemn declarations in

open court carry a strong presumption of verity. The subsequent presentation of

conclusory allegations . . . is subject to summary dismissal, as are contentions that

in the face of the record are wholly incredible.”). We also agree that petitioner

failed to state sufficient facts to establish that his counsel’s alleged failures at


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sentencing resulted in an error of constitutional magnitude.    See Rec. Doc. 68, at

3-4; Scrivner v. Tansy , 68 F.3d 1234, 1240 (10th Cir. 1995) (failing to afford an

opportunity for allocution or to consider mitigating factors at sentencing raises no

constitutional error cognizable in a non-capital federal habeas case). We

conclude that petitioner has failed to make a “substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we DENY

petitioner’s application for a certificate of appealability and DISMISS the appeal.

       The mandate shall issue forthwith.


                                                        Entered for the Court



                                                        Robert H. Henry
                                                        Circuit Judge




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