                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 29 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MICHAEL SMOUSE,

                Petitioner-Appellant,

    v.                                                 No. 96-2274
                                             (D.C. No. CIV 95-0246 HB/JHG)
    DONALD A. DORSEY, Warden,                           (D. N.M.)
    Southern N.M. Correctional Facility;
    ATTORNEY GENERAL OF THE
    STATE OF NEW MEXICO,

                Respondents,

    and

    RON LYTLE, Warden, Southern N.M.
    Correctional Facility,

                Respondent-Appellee.




                               ORDER AND JUDGMENT *



Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.


*
      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      In May 1993, petitioner was arrested on thirty counts of criminal sexual

penetration and one count of criminal sexual contact arising from his sexual

conduct with his young daughter. In December 1993, petitioner pleaded guilty in

state court to four counts of criminal sexual penetration, and the remaining counts

were dismissed. Each of the four counts carried with it a mandatory sentence of

eighteen years. Petitioner, therefore, faced a potential sentence of as little as

eighteen years (all sentences concurrent) or as great as seventy-two years (all

sentences consecutive). Petitioner received a sentence of thirty-six years.

      Thereafter, petitioner filed a motion for post-conviction relief, challenging

the voluntariness of his plea and the length of his sentence, which the state courts

denied on the merits. Petitioner then filed the present federal habeas petition

challenging the voluntariness of his plea. The district court appointed counsel to

represent petitioner and held an evidentiary hearing on petitioner’s claims. Based

on the state court record and the evidence adduced at the evidentiary hearing,



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the district court determined petitioner’s plea was voluntary and denied habeas

relief.

          On appeal, petitioner challenges the voluntariness of his plea on two

grounds. First, he argues his counsel was constitutionally ineffective because he

failed to investigate potential defenses based on petitioner’s mental state before

advising petitioner to plead guilty. Second, petitioner contends his counsel gave

him false assurances of leniency, which coerced him to plead guilty. Before

petitioner can proceed on appeal, he must obtain a certificate of probable cause

from this court. 1 We will not grant the certificate absent “a substantial showing

of the denial of an important federal right.” Gallagher v. Hannigan, 24 F.3d 68,

68 (10th Cir. 1994).

          “Performance by defense counsel that is constitutionally inadequate can

render a plea involuntary.” Romero v. Tansy, 46 F.3d 1024, 1033 (10th Cir.

1995). To establish a claim of ineffective assistance of counsel, petitioner must


1
      Because petitioner filed the present habeas petition in federal court before
enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, AEDPA’s certificate of
appealability requirements do not apply to this appeal. See United States v.
Kunzman, ___ F.3d ___, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct.
1, 1997). Rather, we apply the pre-AEDPA certificate of probable cause
requirements, which are substantively the same, see Lennox v. Evans, 87 F.3d
431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part
by Kunzman, 1997 WL 602507 at *1 n.2. We, therefore, construe petitioner’s
application for a certificate of appealability as an application for a certificate of
probable cause.

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show both that his counsel’s performance “fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that

his counsel’s deficient performance was prejudicial, id. at 693. To satisfy the

“prejudice” prong, petitioner must show “there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Turning to the first prong of the Strickland analysis, we note that “whether

counsel’s failure to investigate a possible defense was reasonable may be

determined or substantially influenced by the defendant’s own statements or

actions.” Romero, 46 F.3d at 1029 (quotation omitted). Petitioner’s trial counsel,

Scott Curtis, testified at the evidentiary hearing he did not investigate the

possibility of defenses based on petitioner’s mental state because he had no

indication such an investigation was warranted. Curtis said his conversations

with petitioner led him to believe petitioner understood the charges against him,

how the criminal process worked, and that petitioner understood what he had done

was wrong and felt great remorse for his actions. Curtis felt petitioner was able

to assist with his case, and was not concerned about petitioner’s competence.

Curtis also testified that “nothing indicated that [petitioner] had any kind of a

mental problem that would provide an insanity or diminished-capacity defense.”

R. Vol. II at 15.


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      While petitioner testified he was very depressed after his arrest and he had

a hard time completing tasks, his testimony did not undermine Curtis’ assessment.

Moreover, the magistrate judge who conducted the evidentiary hearing found

Curtis’ testimony “completely credible,” and, to the extent his testimony

conflicted with that of other witnesses, the magistrate judge found Curtis’

testimony “to be the more credible.” R. Vol. I, Doc. 43 at 6. Absent clear error,

we must accept those factual findings of the district court based on live testimony

presented at an evidentiary hearing. See Romero, 46 F.3d at 1028. Given the

circumstances presented to Curtis, petitioner has not shown that Curtis’ failure to

investigate possible mental health defenses was unreasonable.

      Nor has petitioner shown how Curtis’ failure to investigate prejudiced him.

Petitioner has not identified what evidence would likely have been uncovered had

Curtis obtained a mental evaluation of petitioner before the guilty plea, nor has

petitioner indicated how this evidence would have supported a defense to the

criminal charges or how it would have altered his decision to plead guilty. See id.

at 1033; see also Hill, 474 U.S. at 59 (discussing how to assess prejudice flowing

from counsel’s alleged failure to investigate).

      Curtis did seek a mental evaluation of petitioner before the sentencing

phase, to see if there were mitigating circumstances that would support an

argument for concurrent sentencing. That evaluation revealed petitioner had an


                                         -5-
average intelligence, he was “significantly depressed and worried,” he had

“dependent and passive-aggressive tendencies,” and he might have problems with

alcohol abuse and dependency. R. Vol. II, Pet. Ex. 2 at 6-7. Petitioner has not

suggested any of these findings would be a defense to his criminal acts. Though

the testimony at the evidentiary hearing indicated petitioner had engaged in bouts

of heavy drinking after the criminal charges were filed, there is no indication in

the record petitioner was drinking on any of the thirty-one occasions he allegedly

assaulted his daughter. As to the diagnosis of severe depression, Curtis testified

depression is not a defense to the crimes charged and it would not have been

reasonable to pursue a defense on that basis.

      We turn, then to petitioner’s second argument on appeal: that his counsel

coerced him to plead guilty by giving him false assurances of leniency.

Specifically, petitioner contends Curtis led him to believe he would receive only

eighteen years of incarceration. “A plea may not be voluntary when an attorney

materially misinforms the defendant of the consequences of the plea or the court’s

probable disposition.” Laycock v. New Mexico, 880 F.2d 1184, 1186 (10th Cir.

1989). “[A]n attorney’s unfair representation of probable leniency may be found

coercive.” Id.

      Based on the testimony at the evidentiary hearing, the magistrate judge

found Curtis did not make any misrepresentations about the length of the sentence


                                         -6-
petitioner faced if he pled guilty. Our own review of the hearing transcript

verifies this finding. Further, even if Curtis had made inaccurate sentencing

predictions to petitioner, the audio tape of the plea hearing reflects the court

advised petitioner several times the total length of his sentence was entirely

within the court’s discretion and if the court chose to make the sentences for all

four counts run consecutively, petitioner could receive a seventy-two-year

sentence. “[N]o prejudice [arises] from counsel’s inaccurate sentence or parole

predictions where the court cure[s] the defect by providing the proper

information.” Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir.), cert. denied, 117

S. Ct. 493 (1996).

      Finally, the evidence of record belies petitioner’s present contention that he

would not have pleaded guilty to the four counts had he realized he would receive

a thirty-six-year sentence. Petitioner had admitted to Curtis the commission of

more than four instances of sexual penetration. Also, Curtis testified petitioner

was adamant from the outset that he did not want to go to trial because he did not

want to subject his daughter to the criminal process. Instead, petitioner “wanted

to get this behind him and admit what he had done, and try to fix the wounds that

had been done prior to him being charged.” R. Vol. II at 15. These facts make it

unlikely that petitioner would have chosen to go to trial on the thirty-one counts




                                          -7-
charged, rather than enter a plea of guilty to four of the charges. See Harvey v.

McCaughtry, 11 F.3d 691, 694 (7th Cir. 1993).

      Based upon our review, we conclude that petitioner has not made

“a substantial showing of the denial of an important federal right by

demonstrating that the issues raised are debatable among jurists, that a court

could resolve the issues differently, or that the questions deserve further

proceedings,” Gallagher, 24 F.3d at 68. Therefore, the certificate of probable

cause is DENIED and the appeal is DISMISSED. The mandate shall issue

forthwith.



                                                     Entered for the Court



                                                     J. Thomas Marten
                                                     District Judge




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