                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JAN 10 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-6107
 v.                                              D.C. No. CIV-98-1607-M
                                                      & CR-97-85-M
 RICKY WALLGREN,                                    (W.D. Oklahoma)

          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.

      Ricky Wallgren files for a certificate of appealability complaining of the

district court’s denial of his motion for sentencing relief under 28 U.S.C. § 2255.


      *
        This order and judgment is not binding precedent except under the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.
He asserts ineffective assistance of counsel and improper sentencing. As to the

latter, he claims the court incorrectly relied on materially false information and

his immunized testimony which, under the terms of his plea agreement, could not

be used against him. He also asserts the district court erred by failing to conduct

a hearing on his motion.

      Mr. Wallgren pled guilty on June 12, 1997, to a violation of 21 U.S.C. §

841(a)(1), manufacturing methamphetamine with intent to distribute. He was

sentenced to 235 months imprisonment, five years supervised release, and a $100

special assessment. He filed no direct appeal. Instead, he petitioned the district

court for post-conviction relief, which the court considered without a hearing and

denied in a comprehensive order on March 1, 2002. He then applied to the

district court for a certificate of appealability, which was deemed denied when not

acted upon within thirty days of filing his notice of appeal, U.S. v. Kennedy, 225

F.3d 1187, 1193 n.3 (10th Cir. 2000), cert. denied, 532 U.S. 943 (2001). His

notice of appeal to this Court constitutes a renewed request for a certificate of

appealability. Fed. R. App. P. 22(b)(2). Exercising jurisdiction under 28 U.S.C.

§ 2253, we see no basis for an appeal and deny his request.

      Mr. Wallgren must make a substantial showing of the denial of a

constitutional right entitling him to a certificate of appealability. 28 U.S.C. §




                                         -2-
2253(c)(2). He must demonstrate that “reasonable jurists could debate whether . .

. the issues presented [are] adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and

citation omitted). We review the denial of an evidentiary hearing on a 28 U.S.C.

§ 2255 petition for abuse of discretion. U.S. v. Whalen, 976 F.2d 1346, 1348

(10th Cir. 1992).

      Exercising its discretion and relying on 28 U.S.C. § 2255, 1 the district court

denied the petition without conducting an evidentiary hearing. See also Kennedy,

225 F.3d at 1193. The district court followed the “preferred practice” we

described in United States v. Marr, 856 F.2d 1471, 1472-73 (10th Cir. 1988), to

thoroughly set out its reasoning in aid of appellate review. Because all of Mr.

Wallgren’s allegations were capable of review from the record of the proceedings

alone, the district court did not abuse its discretion in denying an evidentiary

hearing. Cf. Machibroda v. United States, 368 U.S. 487, 494-95 (1962)

(upholding the right to an evidentiary hearing in a 28 U.S.C. § 2255 case where

the allegations related to matters outside the record).

      In reviewing this application for a certificate of appealability, we treat all

issues raised by Mr. Wallgren as constituent parts of his general allegation of


      1
        28 U.S.C. § 2255 reads in pertinent part: “Unless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief,
the court shall . . . grant a prompt hearing . . . .”

                                          -3-
ineffective assistance of counsel even though not always so framed. Effectiveness

of counsel is determined by applying a two part test: (1) counsel must have

committed errors so serious as to fall outside the kind of functioning required by

the Sixth Amendment, and (2) the defendant must show the deficient performance

prejudiced the defense in such a fashion as to call into question the reliability of

the proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984). We will not

indulge hindsight in evaluating counsel’s effectiveness, but will apply “a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance” and sound trial strategy. Strickland, 466 U.S. at 689.

      Mr. Wallgren complains his trial attorney failed to review with him the

contents and importance of the Presentence Investigation Report. As a

consequence, Mr. Wallgren believes he was unable to inform his attorney of

underlying facts and circumstances that would have enabled his attorney to

effectively challenge the calculation of his sentence. According to his attorney,

however, he and Mr. Wallgren did review the report and adopted a strategy

calculated to obtain the greatest benefit from an expected government motion for

downward departure from the sentencing guidelines based upon his cooperation

with authorities. According to the attorney’s sworn affidavit, the plan was for Mr.

Wallgren to accept responsibility and not contest immaterial inaccuracies in the

report.


                                          -4-
      The Presentence Investigation Report is replete with prima facie evidence to

support the debit and credit points attributed to Mr. Wallgren and requires no

further discussion. If there were material inaccuracies in the report leading to an

inappropriate profile under the sentencing guidelines, including Mr. Wallgren’s

allegation of misuse of immunized testimony, or if the strategic decision to not

address these issues was misplaced, it was incumbent upon Mr. Wallgren to bring

this to the attention of his attorney and the court. These were matters within his

singular knowledge. Instead, he told the court under oath he had reviewed the

report with his attorney and had no objection to it. “The truth and accuracy of

[defendant’s] statements are regarded as conclusive in the absence of a believable

reason justifying departure from their apparent truth.” United States v. Bambulas,

571 F.2d 525, 526 (10th Cir. 1978).

      Finding no deficient performance under Strickland, we need not address the

prejudice component of the test for effectiveness of counsel. There being no

demonstration of the denial of a constitutional right, reasonable jurists could not

debate whether Mr. Wallgren ought to proceed further. Accordingly, we deny the

request for a certificate of appealability and DISMISS the case.



                                       Entered by the Court:

                                       TERRENCE L. O’BRIEN
                                       United States Circuit Judge

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