                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          DEC 22 1997
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 ALFONSO THOMAS, JR.,

           Petitioner-Appellant,
 vs.                                                    No. 97-6089
                                                  (D.C. No. CIV-96-964-R)
 STEVE HARGETT,                                         (W.D. Okla.)

           Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges. **



       Petitioner-appellant, Alfonso Thomas, Jr., appeals from the denial of his

habeas petition, 28 U.S.C. 2254, and seeks a certificate of appealability, 28

U.S.C. § 2253(c)(1). He claims ineffective assistance of trial and appellate

counsel regarding plea proceedings and a failure to advise him of the elements of

the underlying offenses.

       *
        This order and judgment is not binding precedent, except under the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. 34.1.9. The cause is therefore ordered submitted without oral argument.
                                     Background

      At the age of 18, Mr. Thomas entered blind pleas in two cases that were

consolidated for purposes of pleas and sentencing. Mr. Thomas was 17 years old

at the time of the offenses. In CF-89-400, he plead guilty to first degree robbery,

receiving a 15-year sentence. In CF-89-5838, he plead guilty to first degree

robbery, first degree burglary, unauthorized use of a motor vehicle, and kidnaping

for purposes of extortion, receiving 35-, 20-, 5- and 35-year sentences,

respectively. The sentences in CF-89-5838 ran concurrently, but consecutively to

that in CF-89-400, resulting in an effective sentence of 50 years. The day after

sentencing, Mr. Thomas unsuccessfully moved to withdraw his pleas. That denial

was later upheld by the Oklahoma Court of Criminal Appeals, which allowed Mr.

Thomas to file a certiorari petition out of time.

      Mr. Thomas then filed his first federal habeas petition which was dismissed

for failure to exhaust state remedies. Thereafter, his state application for post-

conviction relief was denied, the Oklahoma Court of Criminal Appeals holding

that his pleas were knowing and voluntary, and that his claim of inadequate

advice as to the elements of the offenses was barred by res judicata. See I R. doc.

1, attach. (No. PC 95-1428). That court also held that his claims of ineffective

assistance of counsel were waived, not having been raised on direct appeal. See

id. Mr. Thomas filed this second federal habeas petition on June 17, 1996.


                                         -2-
                                     Discussion

      The state defended on the sole ground that Mr. Thomas’s second petition

was barred by the one-year limitation period in 28 U.S.C. § 2244(d)(1). Because

the instant petition was filed within one year of the April 24, 1996 enactment of

the Antiterrorism and Effective Death Penalty Act, the state’s theory lacks merit.

See United States v. Simmonds, 111 F.3d 737, 745 (10th Cir. 1997). Moreover,

in light of Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir. 1994), cert.

denied, 515 U.S. 1135 (1995), Mr. Thomas’s claims of ineffective assistance of

counsel are not procedurally barred and may be considered on the merits, despite

a failure to raise them on direct appeal. See Brewer v. Reynolds, 51 F.3d 1519,

1522 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996).

      The predicate of all Mr. Thomas’s claims is that he was promised a ten-year

sentence by his attorney if he entered a plea in both cases. Mr. Thomas contends

that his mother dismissed the attorney prior to the plea, yet the attorney insisted

that he could not be dismissed. We have carefully reviewed the state court

transcript and it is completely inconsistent with the version that Mr. Thomas now

claims. Moreover, given that the pleas and sentencings in both cases occurred

simultaneously, it is noteworthy that Mr. Thomas only challenges the longer

sentence in CF-89-5838, and not the sentence in CF-89-400. Both were a product

of the same attorney’s representation. Although our review of whether a state


                                         -3-
court plea is knowing and voluntary is de novo, we defer to the state court’s

findings unless unreasonable “in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2); see Marshall v. Lonberger, 459 U.S. 422,

431-32 (1983). Mr. Thomas has not come forward with sufficient grounds to

undermine the state court’s findings and overcome the strong presumption that his

statements during the plea hearings were truthful. See Blackledge v. Allison, 431

U.S. 63, 74 (1977); Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th Cir.), cert.

denied, 117 S. Ct. 493 (1996). The fact that the trial court did not recite the

elements of each crime does not render the plea involuntary where (a) counsel had

discussed the plea with Mr. Thomas, (b) the plea proceedings contain Mr.

Thomas’s factual recitations by affidavit of the events giving rise to the charges,

and (c) the plea colloquy contains further admissions, thereby indicating that Mr.

Thomas understood the charges and their consequences. See Henderson v.

Morgan, 426 U.S. 637, 646-47 (1976); Bonvillain v. Blackburn, 780 F.2d 1248,

1250 (5th Cir.), cert. denied, 476 U.S. 1143 (1986).

      The claim of ineffective assistance of counsel at the trial level must

likewise fail. To prove ineffective assistance of counsel in the context of a guilty

plea, Mr. Thomas must show deficient performance by trial counsel that

prejudiced him--that “there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to


                                         -4-
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466

U.S. 668, 694 (1984). Our review of the district court’s decision on ineffective

assistance is de novo. See Nickel v. Hannigan, 97 F.3d 403, 408 (10th Cir. 1996),

cert. denied, 117 S. Ct. 1112 (1997).

      Mr. Thomas has identified several generic deficiencies with counsel’s

performance including counsel’s alleged (1) conflict of interest because counsel

had been terminated, (2) instructions to Mr. Thomas concerning the plea hearing,

(3) failure to investigate and present evidence, (4) failure to initiate plea bargain

negotiations, (5) failure to prepare for the withdrawal of plea hearing, (6) failure

to adequately confer with Mr. Thomas prior to the hearings, and (7) failure to

challenge the competency of Mr. Thomas. 1 Given the grounds raised in Mr.

Thomas’s petition regarding his ineffectiveness claim, see I R. doc. 1, we resolve

this case on the prejudice prong, Strickland, 466 U.S. at 687, and nothing in the

record suggests that Mr. Thomas would have preferred a trial to the pleas he



      1
        Grounds not raised below are normally waived. See United States v.
Cook, 997 F.2d 1312, 1316 & n.4 (10th Cir. 1993). In his appellate brief, Mr.
Thomas asserts that inadequate evidence in the record exists to support a finding
of competence. The record establishes that competency was raised at the plea
hearing, but because Mr. Thomas had been previously adjudicated competent in
another proceeding, no hearing was held. See generally United States v.
Williams, 113 F.3d 1155, 1159-60 (10th Cir. 1997); Williamson v. Ward, 110
F.3d 1508, 1514-1521 (10th Cir. 1997); Sena v. New Mexico State Prison, 109
F.3d 652, 654-55 (10th Cir. 1997). We express no opinion on this issue because
it is not properly before us.

                                          -5-
entered. To the contrary, Mr. Thomas faced very serious charges with potential

life sentences. The plea colloquy suggests that he did not want to appear before a

jury having previously been adjudicated competent by a jury. The basis of Mr.

Thomas’s effort to withdraw his plea, the unlikely possibility that a convicted and

incarcerated coparticipant would testify that Mr. Thomas was not the ringleader,

simply pales in contrast to the overwhelming evidence of guilt given his

admissions and the State’s proffer concerning his involvement in the crimes.

      Mr. Thomas also argues that appellate counsel was ineffective because he

failed to pursue issues obvious from the record, namely (1) ineffective assistance

of trial counsel, (2) lack of competency to enter a plea, (3) lack of a voluntary and

intelligent plea, and (4) multiplicity of the offenses in CF-89-5838 were

multiplicitous because under Oklahoma law only a single offense was involved.

With respect to appellate counsel, only issue (3) was asserted below, see I R. doc.

1 (“Ground Five”), and thus it is all that we consider. See Radmacher v.

Colorado Ass’n of Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567,

1571-72 (10th Cir. 1993); Cook, 997 F.2d at 1316 & n.4. We have rejected the

claim that Mr. Thomas’s plea was not knowing and voluntary given the federal

grounds relied upon in the petition. Thus, Mr. Thomas suffered no prejudice and

the claim must be rejected.

      Because Mr. Thomas has not made “a substantial showing of the denial


                                         -6-
of a constitutional right” given the grounds contained in his petition, we DENY a

certificate of appealability and DISMISS the appeal.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       -7-
