                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              SEP 10 2002
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                       No. 01-2278
                                              (D.C. Nos. CIV-98-1475-MV/WWD,
 JOSE GONZALEZ-GONZALEZ,                               CR-94-262-MV)
                                                       (D. New Mexico)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, 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)(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          This order and judgment is not binding precedent except under the doctrines of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, Jose Gonzalez-Gonzalez, was convicted by a federal jury of two

drug-related crimes. Displeased with the sentence imposed and seeking to

resurrect a previously abandoned plea agreement, he filed a petition under 28

U.S.C. § 2255 claiming he received ineffective assistance from a team of

attorneys he employed to replace his first attorney. The district court denied

relief and further denied his application for a certificate of appealability. Mr.

Gonzalez-Gonzalez appeals, in effect renewing his request for a certificate of

appealability, which we also deny.



      Under 28 U.S.C. § 2253(c)(2), a petitioner must show that reasonable jurists

could debate whether the district court should have resolved the issues differently

or that the issues presented were “adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 and n.4 (1983) (internal citations omitted)). We review

the district court’s legal rulings de novo, but defer to its factual findings if they are

not clearly erroneous. United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir.

2000), cert. denied, 532 U.S. 943 (2001).



      On a claim of ineffective assistance of counsel we require a defendant to

show (1) counsel’s performance fell short of the kind of adversarial advocacy


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required by the Sixth Amendment, and (2) the deficient performance resulted in an

unfair trial and an unreliable verdict. Strickland v. Washington, 466 U.S. 668, 687

(1984). We do not indulge hindsight in evaluating counsel’s effectiveness, but

apply a “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.



      Mr. Gonzalez-Gonzalez was charged with conspiracy to possess with intent

to distribute more than 1,000 kilograms of marijuana, possession with intent to

distribute same, and aiding and abetting in the possession and distribution scheme,

in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii), and 18

U.S.C. § 2. His first jury trial started December 5, 1994. After a jury was

selected, and upon seeing his co-defendant enter a guilty plea and agree to testify

against him, Mr. Gonzalez-Gonzalez informed the court that he also wished to

plead guilty. The next day, with a plea agreement in hand, he pled guilty to the

charges and received a minimum term of fifteen years imprisonment.



      Mr. Gonzalez-Gonzalez then relieved his attorney and hired a new defense

team, those now challenged for ineffectiveness. The new team, consisting of two

partners from the same firm, filed a writ of coram nobis seeking to withdraw the

guilty plea. The district court granted the writ. Thereafter, the defense team


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negotiated a new plea agreement calling for a minimum term of ten years

incarceration. Mr. Gonzalez-Gonzalez acknowledged in writing that counsel had

at all times kept him abreast of the particulars of his case, and that in the absence

of the plea agreement he faced a minimum possible sentence of twenty years.



      A new change-of-plea hearing was set for November 9, 1995, but was

aborted because Mr. Gonzalez-Gonzalez suffered a medical emergency. No new

plea hearing was set and the case went to trial before a jury on December 18,

1995. At no time during trial or at sentencing did Mr. Gonzalez-Gonzalez claim

that he wanted to accept the plea agreement and plead guilty. In fact, at

sentencing he claimed he was innocent of the charges. He was sentenced to the

statutorily-required minimum of 240 months incarceration on each count, to run

concurrently. The severity of the sentence is explained in part by a prior felony

drug conviction.



      The district court held a hearing on the post-conviction petition and its

included claims of ineffective assistance of counsel. The evidence was sharply

contradictory. Mr. Gonzalez-Gonzalez claimed he always wanted to plead guilty

according to the terms of the second negotiated plea agreement, but his attorneys

failed to accommodate his wishes. The attorneys claimed Mr. Gonzalez-Gonzalez


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insisted on going to trial contrary to their advice. At the conclusion of the § 2255

hearing, the district court found the testimony of defense counsel credible and the

sum of the evidence contrary to Mr. Gonzalez-Gonzalez’s position. After

resolving the conflicting evidence, the court concluded that counsel’s performance

was not deficient.



        Mr. Gonzalez-Gonzalez is no stranger to attorneys or the criminal justice

system and his vacillation did yield results. Although now on his third counsel, he

had confidence in his defense team early on when they convinced the court to set

aside his guilty plea. His confidence continued when he signed the second

detailed plea agreement which reduced the minimum term of incarceration from

fifteen to ten years. Only after sentencing did his confidence in counsel seem to

wane.



        Mr. Gonzalez-Gonzalez seems to appreciate the benefits of retrospection.

A fact-finder could reasonably conclude that his retrospection was cultivated,

particularly in light of contrary evidence. Our review of the record confirms that

the district court’s resolution of disputed factual matters was not clearly erroneous

and, crediting the court with a fair resolution of disputed facts, the performance of

Mr. Gonzalez-Gonzalez’s defense team was not constitutionally deficient. The


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other issues raised in his brief are not supported by the record and do not merit

discussion.



      Accordingly, we deny the request for a certificate of appealability and

DISMISS the case.

                                       Entered for the Court


                                       TERRENCE L. O’BRIEN
                                       Circuit Judge




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