                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 14 1999
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 RAMONA MANTHEI,

           Petitioner - Appellant,
 vs.                                                   No. 99-6235
                                                 (D.C. No. CIV-98-436-T)
 J. B. BOGAN; ATTORNEY                                 (W.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Ms. Manthei, an inmate appearing pro se, seeks to appeal from the denial of

her 28 U.S.C. § 2254 habeas petition. We deny a certificate of appealability and

dismiss the appeal.




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
                                    Background

      Charged with various state offenses relating to the manufacture of

amphetamine, Ms. Manthei pled guilty and was sentenced to serve three

concurrent terms of imprisonment: 30 years for conspiracy to commit a felony;

30 years for unlawful manufacture of a controlled substance; and 15 years for

racketeering. Judgments were entered in March 1990 reflecting that the state

sentences ran concurrently with one another, but ran consecutively with a 15-year

prior federal sentence for drug distribution. Ms. Manthei claims that she pled

guilty to state charges based upon an oral plea agreement with the state

prosecutor guaranteeing that both the state and federal sentences would run

concurrently. She did not challenge her sentences in 1990 because she did not

receive a copy of the judgments and believed that they reflected her plea

agreement.

      In 1995, Ms. Manthei discovered that her state sentences were to run

consecutively to her federal sentence. She filed a motion for judgment nunc pro

tunc with the state district court in April 1996. Her motion was denied and the

Oklahoma Court of Criminal Appeals affirmed, holding that her claim was

procedurally barred. Ms. Manthei then filed a federal habeas petition arguing that

the state sentence she received was not in accordance with the plea agreement.

On appeal, she argues ineffective assistance of counsel, based partly on the denial


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of double jeopardy protection. The district court did not act on a certificate of

appealability; we thus deem it denied by the district court.



                                     Discussion

A.    Ineffective Assistance

      In order to succeed on her ineffective assistance claim, Ms. Manthei must

meet the two part test of Strickland v. Washington, 466 U.S. 668 (1984). First,

she must show that counsel’s representation “fell below an objective standard of

reasonableness,” id. at 688, and second, that she was actually prejudiced by such

representation. Id. at 692. In the context of a guilty plea, this means that she

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

[s]he would not have pleaded guilty and would have insisted upon going to trial.”

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

      Ms. Manthei first argues that she was prejudiced by her counsel’s failure to

secure a written plea agreement showing that the sentences were to run

concurrently. However, in its September 25, 1997 order, the Oklahoma district

court specifically found that “[t]here was no such agreement.” In a § 2254 habeas

proceeding, a factual determination by a state court is presumed correct, unless

rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

      To overcome this presumption, Ms. Manthei relies upon affidavits from her


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attorney, former husband, and brother in law who were all present at the time of

the alleged agreement. However, there is no evidence in the trial records of any

such agreement, neither party brought any agreement to the attention of the court,

and the contemporaneous notes of Ms. Manthei’s attorney are at best ambiguous.

Moreover, on her Change of Plea form, Ms. Manthei answered “No” to the

following question: “Has anyone told you that your sentence will run concurrent

with any other sentence?”

      Second, Ms. Manthei points to the supplemental findings of the magistrate

judge to show that part of the plea agreement was that the state would stand moot

at sentencing. She claims that this part of the agreement was breached when the

state called witnesses to the stand to recap testimony already given at the

preliminary hearing, and her counsel prejudicially failed to intervene.

      This argument misinterprets the findings. The magistrate judge found that

“relevant portions of the Sentencing Transcript suggest that the plea agreement

with the State was more in the nature of a blind plea, and petitioner would simply

not draw an objection from the State to the arguments made by defense counsel.”

Even assuming that there was an agreement not to object to defense arguments,

this simply is not violated by the state’s presentation of prior testimony. Ms.

Manthei’s conclusory statements without more are insufficient to show prejudice.

      Finally, Ms. Manthei claims that counsel erred by telling the court that the


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federal and state cases “have never been connected up.” She apparently claims

that this allowed the judge to find the cases were “separate” and impose the

sentences consecutively. However, because there was no agreement to run the

sentences concurrently, Ms. Manthei cannot show prejudice from this action.

      Even assuming that Ms. Manthei has established that her plea involved

erroneous advice, she has failed to demonstrate a reasonable probability that, but

for such advice, she would have pled not guilty and gone to trial. See Hill, 474

U.S. at 60. Although she has made this statement, it is unsupported by the nature

of the plea agreement–the state district judge retained considerable discretion as

to sentencing and could have imposed substantially longer, though concurrent,

state sentences.



B.    Double Jeopardy

      Ms. Manthei maintains that imposing a state sentence consecutive to a

federal sentence based on the same underlying conduct is a double jeopardy

violation. “It is well established that ‘prosecutions undertaken by separate

sovereign governments, no matter how similar they may be in character, do not

raise the specter of double jeopardy as that constitutional doctrine is commonly

understood.’” United States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998)

(citation omitted). Like prosecutions, sentences from different sovereign


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governments simply do not raise double jeopardy concerns, whether imposed

consecutively or concurrently.

      We GRANT the motion to proceed in forma pauperis, DENY a certificate

of appealability and DISMISS the appeal.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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