                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 15 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 TOMMY JAMES C. RAVEN,

          Petitioner-Appellant,

 v.                                                        No. 98-6472
                                                           (W.D. Okla.)
 ATTORNEY GENERAL OF THE                            (D.Ct. No. 96-CV-1781-T)
 STATE OF OKLAHOMA,

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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); 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          This order and judgment is not binding precedent except under the doctrines of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. 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.
      Appellant Tommy Raven, a state inmate appearing pro se, appeals the

district court's decision denying his habeas corpus petition filed pursuant to 28

U.S.C. § 2254. We grant Mr. Raven's motion for leave to proceed on appeal in

forma pauperis, deny his request for a certificate of appealability, and dismiss the

appeal.



      On December 28, 1989, Mr. Raven pled guilty to “Murder in the First

Degree, After Former Conviction of Two or More Felonies” for the murder of

Richard Robinson, who sustained a slit throat and multiple stab wounds. In his

guilty plea, Mr. Raven stated “I stabbed Richard Robinson with a knife by cutting

his throat. I intended to kill him at the time I cut his throat.” The following day,

he filed pro se a motion to withdraw his plea claiming his counsel coerced him

into entering his guilty plea. The Oklahoma trial court allowed Mr. Raven's

counsel to withdraw, appointed new counsel, and held a hearing on the motion to

withdraw the guilty plea. The trial court then denied the motion to withdraw the

guilty plea and entered the minimum sentence of life imprisonment with the

possibility of parole.



      After reviewing Mr. Raven's brief, the original record, and the hearing

transcripts, the Court of Criminal Appeals affirmed the trial court conviction and


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sentence, concluding no evidence supported Mr. Raven's claims that: (1) his

attorney provided ineffective assistance of counsel; (2) his guilty plea was not

free and voluntary; (3) the trial court abused its discretion in denying his motion

to withdraw his guilty plea; (4) the trial court failed to establish a sufficient

factual basis for his plea; and (5) if he “was required to disclose the nature of his

defense at the hearing on the motion to withdraw his guilty plea, then [he] was

deprived of effective assistance of counsel with his second attorney.”



      In his § 2254 petition, Mr. Raven again challenged his conviction and

sentence, alleging ineffective assistance of counsel because his counsel coerced

him into a guilty plea. Specifically, he claimed his counsel threatened him by

stating she would not represent him if he entered a plea of not guilty and that his

fiancee and her mother would be charged with conspiracy of first degree murder.

He also alleged that at the time he entered the guilty plea, he did not know “what

was going on.”



      The district court referred the petition to a magistrate judge who prepared a

comprehensive Report and Recommendation recommending denial of Mr. Raven's

petition. The magistrate judge, after a thorough discussion of the contents of the

transcripts on the plea and motion to withdraw plea hearings, determined the


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record did not support Mr. Raven's claim that his attorney coerced his guilty plea.

The magistrate judge noted Mr. Raven offered no evidence to support his

conclusory assertions or to refute the evidence set forth in the guilty plea and

withdrawal of plea hearings transcripts, or his counsel's affidavit. The magistrate

judge further concluded Mr. Raven voluntarily entered his guilty plea and “his

plea agreement to life imprisonment, in the face of a possible sentence of death,

was a ‘strategic choice based upon his sober consideration of the alternatives.’”

The magistrate judge found Mr. Raven failed to demonstrate inadequate and

prejudicial performance by counsel as required under Strickland v. Washington,

466 U.S. 668 (1984), and therefore failed to show adjudication of his claim by the

state appellate court “was contrary or an unreasonable application of clearly

established federal law ... or ... was based on an unreasonable determination of

the facts in light of the evidence.” The district court adopted the magistrate

judge's Report and Recommendation in full and denied the petition.



      On appeal, Mr. Raven asserts his ineffective assistance of counsel claim on

the same grounds as in his petition. He also claims the district court: (1) applied

the wrong standard of review because the magistrate judge gave the state court's

factual findings and legal determinations deference, and (2) applied the wrong

analysis in reviewing his ineffective assistance of counsel claim. In addition,


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while Mr. Raven does not deny he killed Mr. Robinson by slitting his throat and

stabbing him multiple times, he suggests he killed him in self-defense after Mr.

Robinson entered his grandfather's home, where Mr. Raven was staying, and

began violently attacking Mr. Raven.



      We review de novo the district court's conclusions of law in denying Mr.

Raven's § 2254 petition and give a presumption of correctness to the state court's

factual findings if they are fairly supported by the record. See Hatch v.

Oklahoma, 58 F.3d 1447, 1453 (10th Cir. 1995), cert. denied, 517 U.S. 1235

(1996). We review mixed questions of law and fact de novo. Id.



      Our review of the district court's decision shows that the magistrate judge

gave the state court an appropriate amount of deference. In explaining the federal

court's review of a state court adjudication, the magistrate judge correctly used

our decision in Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997), to

explain that under the provisions of the Anti-Terrorism and Effective Death

Penalty Act, “the deference to be paid by the federal court to the state court's

factual findings and legal determinations' has been increased.” The magistrate

judge also used the correct analysis in considering Mr. Raven's ineffective

assistance of counsel claim by applying the standards set forth in Strickland, 466


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U.S. at 687, and Hill v. Lockhart, 474 U.S. 52, 57-58 (1985), which adopts the

Strickland standard for claims of ineffective assistance of counsel, such as this

case, which arise out of the plea process.



      As to Mr. Raven's ineffective assistance of counsel claim, we note Mr.

Raven failed to provide the transcripts of the plea hearing and motion to withdraw

the plea hearing for our review. Mr. Raven is responsible for insuring all

materials on which he seeks to rely are part of the record on appeal. United

States v. Vasquez, 985 F.2d 491, 495 (10th Cir. 1993). “When [an] appellant

asserts that his conviction should be reversed because of a particular error, and

the record does not permit us to evaluate the claim, we will generally refuse to

consider it.” Id. Nevertheless, because the record contains other evidence

supporting the district court's decision, we exercise our discretion to review the

claim. In this case, the state trial court's summary of facts concerning Mr.

Raven's guilty plea shows he affirmatively stated: (1) he understood he had the

right to plead not guilty, and by pleading guilty he knowingly gave up his right to

a jury trial; (2) he was guilty and did the acts charged; (3) his attorney served him

well; and (4) he pled guilty of his own free will, without coercion, force, abuse,

or threats. In addition, both the Oklahoma Court of Criminal Appeals and the

district court reviewed the plea and motion to withdraw hearings transcripts, and


                                          -6-
based on that review, determined Mr. Raven knowingly and voluntarily entered

his guilty plea and his attorney provided effective assistance of counsel. In fact,

the district court provided a lengthy summary of the testimony in those transcripts

that we have reviewed. Our record also contains an affidavit of Mr. Raven's

attorney stating she never threatened or intimidated Mr. Raven.



       The only evidence Mr. Raven offers to rebut this evidence is the affidavit

of his fiancee's mother, who alleges: (1) she witnessed Mr. Raven and his

attorney arguing over whether he should plead guilty; (2) Mr. Raven appeared

“confused, upset, and looked as if he wanted to cry”; and (3) his attorney

somehow inappropriately filled out papers for him to sign. 1 However, her

affidavit itself is somewhat confusing, and it is unclear whether she was able to

hear and understand the entire conversation between Mr. Raven and his attorney.

She admits, however, his attorney “only stated that the deal is on the table” and

that after Mr. Raven and the judge talked, he “entered his plea.” Thus, the record

persuades us Mr. Raven's guilty plea was knowing and voluntary, and Mr. Raven



       1
          As to Mr. Raven's assertion that his affidavit is somehow invalid because his
attorney filled it out, his plea affidavit states that “[i]t was written by my attorney” and
that the above statement of the crime “is not in my own handwriting.” The affidavit is
signed by Mr. Raven. Thus, the state trial court was aware Mr. Raven did not author the
affidavit, and his plea is not invalid for that reason.


                                             -7-
has provided insufficient evidence to show otherwise.



      In addition to his guilty plea contentions, we review Mr. Raven’s other

contentions concerning his attorney’s ineffective assistance. For the limited

purpose of evaluating the performance of Mr. Raven's counsel, we review the

weight of the evidence in the record concerning the crime for which he was

convicted. The victim, Mr. Robinson, received multiple stab wounds and a slit

throat, while Mr. Raven suffered apparently little or no injury even though he

claims he killed in self-defense. The photos of the crime scene evidently show an

extremely gruesome sight, which, as his attorney advised, would be highly

prejudicial when viewed by a jury. Although Mr. Raven claims he attempted to

take the victim to the hospital, he admits he fled after the victim died in his car,

and then apparently attempted to mop up the blood on the driveway and porch

prior to his arrest. While Mr. Raven contends he killed Mr. Robinson in self-

defense and he can produce witnesses to prove it, the magistrate judge correctly

determined he offers no evidence to support this conclusory assertion. In light of

the weight of the evidence against Mr. Raven and the impending possibility of a

death sentence, we agree with the magistrate judge that Mr. Raven's attorney's

advice concerning entering a guilty plea was a “strategic choice based on [her]

sober consideration of the alternatives.” Thus, Mr. Raven has not shown his


                                          -8-
attorney's conduct fell below an objective standard of reasonableness or that her

performance, even if deficient, prejudiced him. See Strickland, 466 U.S. at 687.



      In order to obtain a certificate of appealability, a petitioner must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied,

519 U.S. 1081 (1997). After reviewing the record and Mr. Raven's arguments, we

conclude he fails to make the required showing.



      Accordingly, we grant Mr. Raven's request to proceed on appeal without

payment of costs, deny his request for a certificate of appealability, and DISMISS

the appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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