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

 DARRYL MONTGOMERY,
           Petitioner - Appellant,                             No. 97-6187
 v.                                                       (D.C. No. 97-CV-224)
 CARL WHITE; JAMES L. SAFFLE,                                 (W. D. Okla.)
           Respondents - Appellees.


                                     ORDER AND JUDGMENT*


Before BALDOCK, McKAY, and LUCERO, Circuit Judges.



       After examining Petitioner’s brief and the appellate record, this panel has

determined unanimously to grant Petitioner’s 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 this section 2254 action Petitioner claims ineffective assistance of counsel and

the “denial of right to appeal” his state conviction pursuant to guilty plea. We affirm for

the reasons given in the magistrate judge’s recommendation. To the extent that



       *
        This order and judgment is not binding precedent, except under the doctrines of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’s claims turn on the factual issues of whether he knowingly waived his right to

appeal and whether he instructed his counsel to appeal, we conclude that the trial court’s

express resolution of these issues is not clearly erroneous. To the extent that any issue is

subject to de novo review, we agree with the trial court’s resolution.

       AFFIRMED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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