                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         AUG 31 2001
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 01-6011
                                                  (D.C. No. CIV-00-643-A)
 PEDRO AYALA TORRES, JR.,                               (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


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


       Defendant-Appellant Pedro Ayala Torres, an inmate appearing pro se, seeks

a certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying relief on his motion pursuant to 28 U.S.C. § 2255. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Because we conclude

that Mr. Torres has failed to make “a substantial showing of the denial of a


       *
        This order and judgment is not binding precedent, except under the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 (G). The cause is therefore ordered submitted without oral argument.
constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request

for a COA and dismiss the appeal.

      In 1998, Mr. Torres pled guilty to conspiring to distribute and to possess

with intent to distribute cocaine powder, 21 U.S.C. § 846. Doc. 371, at 1.

However, Mr. Torres denied responsibility for cocaine base (crack) as charged in

the indictment. Id. The court imposed a sentence of 360 months, based in part on

Mr. Torres’ involvement with crack cocaine as relevant conduct. Id. On direct

appeal, Mr. Torres argued that: (1) the district court abused its discretion in

denying his motion to withdraw his guilty plea; (2) the court erred in including

crack cocaine as relevant conduct when determining his sentence; (3) the court

erred in failing to give him a downward adjustment for acceptance of

responsibility; and (4) the court erred in giving him an upward adjustment for

possession of a firearm. United States v. Ayala Torres, Jr., 173 F.3d 864, 1999

WL 176197, at *1-3 (10th Cir. March 31, 1999). This court affirmed. Id. at *3.

We found that “[t]here is no indication that Mr. Torres’ plea was anything but

deliberate and intelligent” as “Mr. Torres fully acknowledged” that crack could be

included as relevant conduct in his sentence during his Rule 11 proceeding. Id. at

*1; see also Aplt. App. at 60 (tr. of guilty plea).

      In March 2000, Mr. Torres filed his “Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence” alleging due process violations and


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ineffective assistance of counsel claims. Specifically, Mr. Torres contended that

his guilty plea was involuntary because the district court should have advised him

that he would not be allowed to withdraw his plea if the court rejected the

agreement pursuant to Fed. R. Crim. P. 11(e)(2). In regards to his ineffective

assistance of counsel claims, Mr. Torres alleged that his counsel erred by: (1)

failing to raise the Rule 11(e)(2) violation in Mr. Torres’ motion to withdraw his

guilty plea; (2) rendering faulty advice that induced Mr. Torres to accept the plea

agreement; (3) failing to object to the inclusion of crack cocaine as relevant

conduct under the Sentencing Guidelines; and (4) omitting meritorious arguments

on appeal, including arguments regarding the involuntary plea and the inclusion

of crack cocaine as relevant conduct. Doc. 371, at 2-3.

      The district court noted the “significant overlap between the prior [direct]

appeal and the current motion,” id. at 2, recognizing that Mr. Torres was bringing

up several of the same issues under the “ineffective assistance rubric.” Id. at 3;

see also United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (“Absent

an intervening change in the law of a circuit, issues disposed of on direct appeal

generally will not be considered on a collateral attack by a motion pursuant to §

2255.”) (citation omitted). The district court went on to hold that “all [the] newly

asserted claims lack merit,” Doc. 371, at 3, concluding that no Rule 11(e)(2)

violation had taken place, id. at 5, that Mr. Torres did not receive ineffective


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assistance of counsel regarding his guilty plea, id. at 8-9, that Mr. Torres did not

receive ineffective assistance of counsel regarding his sentence and the inclusion

of crack cocaine as relevant conduct, id. at 10-11, and, finally, that Mr. Torres’

counsel did not fail to raise meritorious issues on appeal. Id. at 11. The district

court denied the § 2255 motion on the merits, id. at 11, and later denied Mr.

Torres’ request for a COA. Doc. 379.

      We construe Mr. Torres’ notice of appeal as an application for a COA.

Emergency General Order of 1996. On appeal, Mr. Torres raises the same issues

he raised before the district court in his original § 2255 motion, along with three

others: (1) ineffective assistance of counsel on direct appeal because “the issues

that were raised on direct appeal by appellants [sic] counsel were incorrectly

addressed out of context of the appropriate legal authorities which nullified any

meaningful appel[l]ate review,” Aplt. Br. at 3-4; (2) “[a]ppellants [sic] trial and

appel[l]ate counsel’s deficient performance rises to the level of ineffective

assistance of trial counsel throughout the criminal proceedings . . . ,” id. at 4; and

(3) the district court erred in failing to grant Mr. Torres an evidentiary hearing on

his ineffective assistance of counsel claims. Id. at 5.

      As for the two new ineffective assistance of counsel claims that Mr. Torres

raises for the first time in this appeal, we decline to address them because he

failed to raise them in the district court as part of his original § 2255 motion. See


                                          -4-
In re Walker (Walker v. Mather), 959 F.2d 894, 896 (10th Cir. 1992). Turning to

the claims that the district court denied on the merits, we review the district

court’s legal rulings on a § 2255 motion de novo and its factual findings for clear

error. United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000), cert.

denied, 121 S. Ct. 1406 (2001). Ineffective assistance of counsel claims are

mixed questions of law and fact which we review de novo. United States v.

Prows, 118 F.3d 686, 691 (10th Cir. 1997). Keeping the relevant standards of

review in mind, we have conducted a thorough review of the record on appeal and

the submissions by the parties. We are convinced that the district court’s analysis

of Mr. Torres’ claims was both comprehensive and correct.

      Finally, we review the denial of an evidentiary hearing in a § 2255

proceeding for an abuse of discretion. United States v. Nichols, 169 F.3d 1255,

1263 (10th Cir. 1999). In a § 2255 proceeding, the district court is not required to

grant an evidentiary hearing on a prisoner’s claims where “the motion and the

files and records of the case conclusively show that the prisoner is entitled to no

relief . . . .” 28 U.S.C. § 2255; see also Kennedy, 225 F.3d at 1193. Although the

record does not show that Mr. Torres requested that the district court hold such a

hearing, the records of this case conclusively show that Mr. Torres was not

entitled to any relief and, therefore, we hold that Mr. Torres was not entitled to an

evidentiary hearing.


                                         -5-
      Therefore, because Mr. Torres has failed to show “that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), we DENY Mr. Torres’

request for a COA and DISMISS this appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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