                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 5 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-6369
                                                   (D.C. Nos. CIV-97-997-R
    LEE ROY WASHINGTON,                                & 93-CR-175-R)
                                                         (W.D. Okla.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.




         After examining the brief 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      This order and judgment is not binding precedent, except under the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.
      Petitioner Lee Roy Washington renews his application for a certificate of

appealability (“COA”) that would permit him to appeal from the district court’s

order denying relief on his habeas petition brought pursuant to 28 U.S.C. § 2255.

See 28 U.S.C. § 2253(c)(1)(B). We have jurisdiction under 28 U.S.C. §§ 1291

and 2253(a). Because Mr. Washington has failed to make a “substantial showing

of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we

deny his application for COA and dismiss the appeal.


                            I. Facts and proceedings

      In 1994 Mr. Washington pleaded guilty to one count of conspiring to

possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 in

exchange for the government dropping an additional charge of possession of

cocaine with intent to distribute. The plea agreement stated that approximately

550 grams to 1.5 kilograms of cocaine base (“crack”) were attributable to

Mr. Washington for sentencing purposes, and Mr. Washington admitted at the

plea hearing that he sold crack for others. R. Doc. 773 at 11 (Sept. 19, 2001

Order) (hereinafter “Order”). The court accepted the guilty plea and sentenced

Mr. Washington to 262 months’ imprisonment. We affirmed his conviction on

appeal. United States v. Washington   , No. 94-6104, 1995 WL 50051 (10th Cir.

Feb. 8, 1995) (unpublished).



                                         -2-
       In 1997, Mr. Washington filed a § 2255 motion, asserting four grounds for

relief. The district court held that all claims, except those alleging ineffective

assistance of counsel, were procedurally barred for failure to raise them on direct

appeal, and that Mr. Washington had neither shown cause and actual prejudice to

excuse that failure nor that there would be a fundamental miscarriage of justice

absent review. Order at 4. The court carefully analyzed Mr. Washington’s

ineffective-assistance-of-counsel claims on the merits, and rejected them using

the standards enunciated in   Strickland v. Washington , 466 U.S. 668 (1984). The

court later denied his application for a COA.


                                     II. Discussion

       Mr. Washington may make a “substantial showing of the denial of a

constitutional right” by demonstrating that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong or that

the question presented deserves further proceedings.       See Slack v. McDaniel , 529

U.S. 473, 483-84 (2000). “[W]e review the district court’s legal rulings on a

§ 2255 motion de novo and its findings of fact for clear error.”     United States v.

Pearce , 146 F.3d 771, 774 (10th Cir. 1998).

       Mr. Washington raises three issues in his application for COA: (1) he was

denied effective assistance of counsel, which he could have proved if the court

had granted an evidentiary hearing; (2) his guilty plea was neither knowing nor

                                            -3-
voluntary, and he was entitled to an evidentiary hearing on this issue; and (3) he

was subjected to an illegal sentence under     Apprendi v. New Jersey , 530 U.S. 466

(2000). We have carefully reviewed the record submitted for review,

Mr. Washington’s brief, and the applicable law, and, for substantially the same

reasons stated by the district court, we determine that Mr. Washington has failed

to demonstrate that the district court’s rulings were debatable or wrong or that the

questions presented deserve further proceedings. In concluding that his

application for a COA should be denied, we also separately address three issues.

      A. Denial of motion for evidentiary hearing on ineffective-assistance-
of-counsel and voluntariness-of-plea claims

      In his application for COA, Mr. Washington claims that trial counsel’s

assistance was ineffective in four respects: he failed to attempt to withdraw the

guilty plea; he failed to inform Mr. Washington of the consequences of his plea;

he failed to challenge the computation of drug amounts attributable to Mr.

Washington; and he failed to make enough or different objections to the

presentencing report. Mr. Washington further asserts that his plea was not

knowingly and voluntarily entered because he did not understand he was subject

to a mandatory minimum penalty of ten years. He argues that, through an

evidentiary hearing, he could have established both claims by showing the

following: (1) he relied on his counsel’s advice to plead guilty because counsel

lead him to believe he would be punished more severely if he went to trial and

                                             -4-
was convicted; (2) he could not recall reading the indictment or presentence

report or reviewing discovery materials or the presentence report with counsel,

did not understand the charge to which he was entering a plea of guilty, and could

not recall the court reading the indictment in open court; (3) counsel told him that

he would be sentenced to no more than five years’ imprisonment if he pleaded

guilty, and did not provide him with an estimate of his guideline range of

punishment; (4) he desired to withdraw his guilty plea on his subjective belief

that, because he had failed to honor his agreement to testify truthfully for the

government, the plea agreement was “void,” but counsel refused to file a motion

to withdraw the plea; (5) he did not understand that “ten years to life” meant that

he was facing a mandatory minimum sentence of ten years, he did not recall the

district court advising him that it lacked authority to sentence him for less than

ten years, and he was unaware of the actual sentencing consequences; and (6) if

he had been properly advised of the mandatory sentence and that a reasonably

accurate estimate of the guidelines would have placed his punishment far in

excess of ten years, he would not have pleaded guilty.

       In habeas proceedings, a district court should conduct an evidentiary

hearing “[u]nless the motion and files and records of the case conclusively show

that the prisoner is entitled to no relief.”   United States v. Lopez , 100 F.3d 113,

119 (10th Cir. 1996) (quotation and citation omitted). Here, the district court


                                               -5-
denied the request for evidentiary hearing, concluding that most of

Mr. Washington’s assertions were “wholly incredible” based on the written and

signed plea agreement, the petition to enter a guilty plea, and the transcript of the

plea colloquy belying his assertions. Order at 9. “Solemn declarations in open

court carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary dismissal,

as are contentions that in the face of the record are wholly incredible.”

Blackledge v. Allison , 431 U.S. 63, 74 (1977).

       Mr. Washington claims that, because the government did not assert that the

handwriting on the written plea agreement was Mr. Washington’s and the

transcript shows only that Mr. Washington affirmatively responded to the court’s

inquiries, an evidentiary hearing should have been held. We disagree. If the

handwriting was not Mr. Washington’s, he should have made that claim in district

court instead of remaining silent. Indeed, he does not, even now, claim that it is

not his handwriting. The district court found that Mr. Washington was clearly

informed of the mandatory minimum, as demonstrated by his statements in his

Petition to Enter Plea of Guilty.   See Order at 8. The district court further noted

that the government verbally stated the charge, as well as the mandatory minimum

and maximum sentences to which Mr. Washington was subject, at the plea

hearing. Id. at 10 n.3. The district court found that the record establishes that


                                           -6-
Mr. Washington stated he knew and understood the charges against him and the

basic consequences of his plea, and Mr. Washington submitted no documents to

this court to refute that finding, nor did he submit the plea documents or

transcript to this court for review. Thus, as the district court noted, even if

counsel failed to separately inform Mr. Washington of the mandatory minimum, it

was not prejudicial.   See id. at 10.

       Because of this complete failure of credibility in light of the record as

summarized by the district court, Mr. Washington also could not establish through

his proposed testimony that his plea was not knowing and voluntary, and the

district court properly applied a procedural bar to that claim.     See Bousley v.

United States , 523 U.S. 614, 622 (1998) (procedural bar precludes consideration

of voluntariness of guilty plea on collateral review if not raised on direct appeal

absent showing of cause and actual prejudice or actual innocence). The district

court did not abuse its discretion by denying an evidentiary hearing.      See Lopez ,

100 F.3d at 119.

       B. Ineffective assistance of appellate counsel

       Mr. Washington argues that the district court erred in requiring him to

establish that appellate counsel failed to raise a “dead-bang winner” in order to

establish objectively unreasonable appellate performance. We rejected the “dead-

bang winner” language as a standard for ineffective-assistance-of-counsel claims


                                             -7-
in Neill v. Gibson , 278 F.3d 1044, 1057 n.5 (10th Cir. 2001),      petition for cert.

filed (U.S. May 06, 2002) (No. 01-10121). We note, however, that the district

court determined that none of the claims raised by Mr. Washington had          any merit,

thus Mr. Washington failed to show “a reasonable probability that the omitted

claim would have resulted in a reversal on appeal.”     Id. The court actually

applied the proper standard in rejecting Mr. Washington’s ineffective-assistance-

of-appellate-counsel claim notwithstanding the use of the “dead-bang winner”

language.

       C. Application of     Apprendi

       Mr. Washington contends that his indictment was constitutionally defective

because it did not allege an amount of crack associated with the charged

conspiracy 1 and therefore violated the Supreme Court’s ruling in        Apprendi . That

argument is foreclosed by our recent decision holding that       Apprendi does not

apply retroactively to initial § 2255 motions.     United States v. Mora , 293 F.3d

1213, 1219 (10th Cir. 2002).




1
      Contrary to Mr. Washington’s claim, the district court noted that the
indictment alleged that the co-conspirators collectively distributed a total of
almost 800 grams of crack. Order at 21. Mr. Washington did not provide the
indictment for our review.

                                             -8-
We deny a COA and DISMISS the appeal.



                                        Entered for the Court



                                        Stephen H. Anderson
                                        Circuit Judge




                             -9-
