                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             JUN 5 1998

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 97-6235
                                                 (D.C. No. CIV-96-1811-T)
 v.
                                                  (D.C. No. CR-92-209-T)
                                                        (W.D. Okla.)
 RAFAEL ANTONIO HERRERA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, 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); 10th Cir. R. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Rafael Antonio Herrera brought this action under 28 U.S.C. § 2255

asserting that he was denied effective assistance of counsel and his right to due

process in connection with his guilty plea. The district court denied relief, ruling

that his claims are in essence the same ones he raised on direct appeal and that

they therefore may not be reasserted in this proceeding. The court also denied

Mr. Herrera’s request for a certificate of appealability as required by 28 U.S.C. §

2253(c)(1)(B). We deny his request as well and dismiss his appeal.

      Mr. Herrera was charged in a one-count indictment with conspiracy to

possess with intent to distribute “cocaine (powder) and/ or cocaine base (crack).”

Aplt. App. at 2. After a jury had been selected, he decided to change his plea. A

Rule 11 hearing was held, at which Mr. Herrera entered a guilty plea and agreed

that the amount of cocaine involved was between five and fifteen kilos. Upon

receiving a copy of the Presentence Report, 1 however, Mr Herrera again changed

his mind and moved at sentencing to withdraw his plea. The court held an

evidentiary hearing to address Mr. Herrera’s claim that when he pled guilty, he

believed he was pleading only to a conspiracy involving cocaine powder. After

the hearing, and upon reviewing the record of the guilty plea proceedings and the


      1
         Mr. Herrera has not placed the Presentence Report in the record on
appeal. It appears undisputed, however, that the Report recommended attributing
almost fifteen kilos of crack cocaine to Mr. Herrera as a result of his participation
in the charged conspiracy, which would produce a sentence under the guidelines
of life in prison.

                                         -2-
briefs filed by the parties, the district court denied the motion, holding that “the

record is very clear that defendant was specifically aware of the charge in the

indictment, that cocaine and/or cocaine base were the substances that were the

subject of the conspiracy, and the maximum possible punishment -- life

imprisonment -- for his plea of guilty to that charge.” Id. at 56. Mr. Herrera

argued on appeal that his plea was involuntary because of his belief that only

cocaine powder was involved. We rejected that argument, concluding the district

court had not abused its discretion in finding that Mr Herrera “knew that the

maximum sentence for the crime for which he pled guilty was life, [and] that he

pled guilty to a conspiracy relating to ‘cocaine and/or cocaine base.’” United

States v. Herrera, No. 93-6100, 1994 WL 36766 (10th Cir. Feb. 8, 1994).

      Mr. Herrera then brought this section 2255 petition, asserting inter alia that

he was denied the effective assistance of counsel in deciding whether to plead

guilty because his counsel misled him with respect to the crime to which he was

pleading and the sentence he would receive. Mr. Herrera asserted he would have

insisted on going to trial had his counsel properly advised him. The district court

held that these claims “are thinly disguised versions” of the issues raised in Mr.

Herrera’s direct appeal. We agree. Whether Mr. Herrera’s guilty plea was

involuntary was resolved after an evidentiary hearing in the prior proceeding and

affirmed on direct appeal. An ineffective assistance claim may only be raised


                                          -3-
after a guilty plea if the plea was involuntary as a result of counsel’s

ineffectiveness. See generally Hill v. Lockhart, 474 U.S. 52 (1985). This court’s

prior holding that the plea was voluntary is thus dispositive of Mr. Herrera’s

claim of incompetent counsel.

      We accordingly conclude that Mr. Herrera has failed to make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and his

appeal is DISMISSED.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Chief Judge




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