                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 5 1998
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


LANDREE E. WAUFORD, also
known as Landree Earl Wauford,

             Plaintiff-Appellant,
                                                        No. 98-2134
v.
                                                   (Dist. of New Mexico)
                                                  (D.C. No. CIV 97-1335)
STATE OF NEW MEXICO;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

             Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined 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. 34.1.9. 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       This order and judgment is not binding precedent, except under the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.
      This case is before the court on petitioner Landree Wauford’s application

for a certificate of appealability. Wauford seeks a certificate of appealability so

that he can appeal the district court’s dismissal of Wauford’s 28 U.S.C. § 2254

habeas corpus petition.   See 28 U.S.C. § 2253(c)(1) (providing that no appeal can

be taken from the denial of a § 2254 habeas petition unless the petitioner first

obtains a certificate of appealability).

      Under New Mexico law, “[a]ny person convicted of a noncapital felony . . .

who has incurred one prior felony conviction . . . is a habitual offender and his

basic sentence shall be increased by one year, and the sentence imposed . . . shall

not be suspended or deferred.” N.M. Stat. Ann. § 31-18-17. In 1992, Wauford

was convicted of attempted armed robbery, aggravated burglary, and escape.

Pursuant to New Mexico’s habitual offender statute, the state trial court enhanced

Wauford’s sentence based on a 1983 New Mexico conviction for armed robbery.

In the instant § 2254 petition, Wauford asserts that the habitual criminal

enhancement violates his rights under the Sixth and Fourteenth Amendments

because the 1983 conviction was the result of an unknowing and involuntary

guilty plea. Wauford further alleges that his trial counsel was ineffective for

failing to investigate the 1983 conviction and challenge the habitual offender

enhancement.




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       The district court succinctly summarized the procedural history of this case

as follows:

             [Wauford] previously filed an application attacking the same
       1992 state sentence at issue in this proceeding. Wauford v. State ,
       No. CIV-95-0647 NV/RLP. See Duhart v. Carlson , 469 F.2d 471,
       473 (10th Cir. 1972) (a court may take judicial notice of its own
       record). As grounds for the previous application, [Wauford] claimed
       he was denied a speedy trial, his plea was coerced, and he was
       denied effective assistance of counsel. He also claimed his sentence
       was wrongfully enhanced for a 1983 felony conviction under New
       Mexico’s habitual offender statute.
             Before counsel was appointed in the previous proceeding,
       [Wauford] moved to dismiss the habitual offender claim without
       prejudice in order to exhaust the claim in state court. That motion
       was granted by the Court. Later, while represented by counsel,
       [Wauford] filed a pro se motion to amend the application in order to
       reassert the habitual offender claim, alleging that the claim had been
       exhausted. The Court dismissed with prejudice [Wauford’s] claims
       based on speedy trial, coerced plea, and assistance of counsel,
       though no ruling was made on the motion to amend. [Wauford] now
       reasserts the habitual offender claim in this proceeding.

Dist. Ct. Order at 1-2. In light of this procedural history, the district court

assumed the petition was not barred as successive or abusive and proceeded to

decide the petition on the merits.

       As to the merits of Wauford’s petition, the district court first concluded

that Wauford’s claim about the “misapplication” of the habitual criminal

enhancement was purely a question of state law not congnizable under § 2254.

Dist. Ct. Order at 2 (citing   Shafer v. Stratton , 906 F.2d 506, 510 (10th   Cir.

1990)). But see Higgins v. Smith , 991 F.2d 440, 442-43 (8th       Cir. 1993) (Gibson,


                                            -3-
J., dissenting) (noting conflict among courts as to whether sentence imposed in

excess of that allowed under state law is amenable in habeas petition);

Richardson v. Evans , No. 95-6464, 1996 WL 603278, at *4 (10th      Cir. Oct. 22,

1996) (unpublished disposition) (holding in context similar to case at hand that

“[t]he Due Process Clause of the Fourteenth Amendment prohibits courts from

depriving persons of liberty or property as punishment for criminal conduct

except to the extent authorized by state law”). In resolving Wauford’s

ineffectiveness claim, the district court assumed that Wauford’s attorney had not

investigated Wauford’s criminal history or informed Wauford about the

possibility of challenging his 1983 felony conviction. It concluded as a matter of

law, however, that Wauford’s ineffective assistance of counsel claim failed

because the habitual offender enhancement was collateral to his underlying

conviction and Wauford’s counsel had no obligation to inform Wauford about the

possibility of challenging the prior felony conviction. Dist. Ct. Order at 3 (citing

Wiedemer v. Marr , Nos. 96-1161, -1162, 1997 WL 44934 at *2 (10th         Cir. Feb. 5,

1997) (unpublished disposition)).   But see Richardson v. Tansy   , No. 91-2127,

1992 WL 314126, at *3 (10th     Cir. Oct. 22, 1992) (unpublished disposition)

(implicitly recognizing that failure to investigate criminal background may

constitute ineffective assistance if counsel’s performance was deficient and that

deficient conduct prejudiced the defendant).


                                         -4-
       To be entitled to a certificate of appealability, Wauford must make a

substantial showing of the denial of his constitutional rights. 28 U.S.C. §

2253(c)(2). Wauford can make such a showing by demonstrating the issues

raised are debatable among jurists of reason, an appellate court could resolve the

issues differently, or the issues raised deserve further proceedings.   Barefoot v.

Estelle , 463 U.S. 880, 893 & n.4. (1983). Because each of the legal grounds

identified by the district court in dismissing Wauford’s petition is reasonably

debatable and because the district court’s dismissal of the § 2254 petition can be

easily affirmed on the merits, this court grants Wauford a certificate of

appealability and proceeds to the merits.

       Our review of the record leads us to conclude that the district court did not

err in dismissing Wauford’s petition. The record on appeal contains copies of

Wauford’s Plea and Disposition Agreement to the 1983 felony as well as a copy

of the Guilty Plea Proceeding. In each of these documents, Wauford specifically

acknowledges that he is entering the plea knowingly and voluntarily.

Furthermore, in the Plea and Disposition Agreement, Wauford’s attorney attests

that he has discussed the case in detail with Wauford and advised Wauford of all

his constitutional rights. Finally, in the Guilty Plea Proceeding, the trial judge

specifically found that Wauford had “knowingly, voluntarily, and intelligently

plead[ed] guilty” to the charged crimes. These documents clearly demonstrate on


                                             -5-
their face that Wauford’s 1983 guilty plea was knowing and voluntary.      See

United States v. Davis , 929 F.2d 554, 557-58 (10th   Cir. 1991) (finding trial

court’s journal entry sufficient to prove voluntary and intelligent plea where

journal entry recited that “the plea was freely and voluntarily made with an

understanding of the nature of the charge and consequences of the plea”).

Accordingly, Wauford’s claim that his 1983 conviction was involuntary and,

therefore, cannot be counted under New Mexico’s habitual offender statute is

without merit.

       Wauford’s ineffective assistance claim is similarly without merit. In light

of the documents referenced above, there is no real probability that Wauford

would have refused the 1992 plea and insisted on going to trial had his counsel

further investigated his prior conviction. More to the point, this court cannot say

it is likely that any further investigation of Wauford’s prior conviction would

have changed the outcome of the 1992 plea negotiations. Thus, Wauford has

failed to demonstrate any constitutional violation.   See Richardson v. Tansy , No.

91-2127, 1992 WL 314126, at *3 (10th        Cir. Oct. 22, 1992) (unpublished

disposition) (rejecting claim of ineffective assistance arising from facts almost

identical to those in the instant case on the ground the petitioner had suffered no

prejudice).




                                            -6-
     The judgment of the district court dismissing Wauford’s § 2254 petition is

hereby AFFIRMED .

                                    ENTERED FOR THE COURT



                                    Michael R. Murphy
                                    Circuit Judge




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