Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
OCT 29 1997
PATRICK FISHER
Clerk
MICHAEL SMOUSE,
Petitioner-Appellant,
v.
DONALD A. DORSEY, Warden,
Southern N.M. Correctional Facility;
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
No. 96-2274
(D.C. No. CIV 95-0246 HB/JHG)
(D. N.M.)
Respondents,
and
RON LYTLE, Warden, Southern N.M.
Correctional Facility,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
This order and judgment is not binding precedent, except under the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.
The Honorable J. Thomas Marten, District Judge, United States District

Court for the District of Kansas, sitting by designation.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties 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 May 1993, petitioner was arrested on thirty counts of criminal sexual
penetration and one count of criminal sexual contact arising from his sexual
conduct with his young daughter. In December 1993, petitioner pleaded guilty in
state court to four counts of criminal sexual penetration, and the remaining counts
were dismissed. Each of the four counts carried with it a mandatory sentence of
eighteen years. Petitioner, therefore, faced a potential sentence of as little as
eighteen years (all sentences concurrent) or as great as seventy-two years (all
sentences consecutive). Petitioner received a sentence of thirty-six years.
Thereafter, petitioner filed a motion for post-conviction relief, challenging
the voluntariness of his plea and the length of his sentence, which the state courts
denied on the merits. Petitioner then filed the present federal habeas petition
challenging the voluntariness of his plea. The district court appointed counsel to
represent petitioner and held an evidentiary hearing on petitioners claims. Based
on the state court record and the evidence adduced at the evidentiary hearing,
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the district court determined petitioners plea was voluntary and denied habeas
relief.
On appeal, petitioner challenges the voluntariness of his plea on two
grounds. First, he argues his counsel was constitutionally ineffective because he
failed to investigate potential defenses based on petitioners mental state before
advising petitioner to plead guilty. Second, petitioner contends his counsel gave
him false assurances of leniency, which coerced him to plead guilty. Before
petitioner can proceed on appeal, he must obtain a certificate of probable cause
from this court. 1 We will not grant the certificate absent a substantial showing
of the denial of an important federal right. Gallagher v. Hannigan, 24 F.3d 68,
68 (10th Cir. 1994).
Performance by defense counsel that is constitutionally inadequate can
render a plea involuntary. Romero v. Tansy, 46 F.3d 1024, 1033 (10th Cir.
1995). To establish a claim of ineffective assistance of counsel, petitioner must
Because petitioner filed the present habeas petition in federal court before
enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, AEDPAs certificate of
appealability requirements do not apply to this appeal. See United States v.
Kunzman, ___ F.3d ___, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct.
1, 1997). Rather, we apply the pre-AEDPA certificate of probable cause
requirements, which are substantively the same, see Lennox v. Evans, 87 F.3d
431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part
by Kunzman, 1997 WL 602507 at *1 n.2. We, therefore, construe petitioners
application for a certificate of appealability as an application for a certificate of
probable cause.
1
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show both that his counsels performance fell below an objective standard of
reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984), and that
his counsels deficient performance was prejudicial, id. at 693. To satisfy the
prejudice prong, petitioner must show there is a reasonable probability that,
but for counsels errors, he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Turning to the first prong of the Strickland analysis, we note that whether
counsels failure to investigate a possible defense was reasonable may be
determined or substantially influenced by the defendants own statements or
actions. Romero, 46 F.3d at 1029 (quotation omitted). Petitioners trial counsel,
Scott Curtis, testified at the evidentiary hearing he did not investigate the
possibility of defenses based on petitioners mental state because he had no
indication such an investigation was warranted. Curtis said his conversations
with petitioner led him to believe petitioner understood the charges against him,
how the criminal process worked, and that petitioner understood what he had done
was wrong and felt great remorse for his actions. Curtis felt petitioner was able
to assist with his case, and was not concerned about petitioners competence.
Curtis also testified that nothing indicated that [petitioner] had any kind of a
mental problem that would provide an insanity or diminished-capacity defense.
R. Vol. II at 15.
-4-
While petitioner testified he was very depressed after his arrest and he had
a hard time completing tasks, his testimony did not undermine Curtis assessment.
Moreover, the magistrate judge who conducted the evidentiary hearing found
Curtis testimony completely credible, and, to the extent his testimony
conflicted with that of other witnesses, the magistrate judge found Curtis
testimony to be the more credible. R. Vol. I, Doc. 43 at 6. Absent clear error,
we must accept those factual findings of the district court based on live testimony
presented at an evidentiary hearing. See Romero, 46 F.3d at 1028. Given the
circumstances presented to Curtis, petitioner has not shown that Curtis failure to
investigate possible mental health defenses was unreasonable.
Nor has petitioner shown how Curtis failure to investigate prejudiced him.
Petitioner has not identified what evidence would likely have been uncovered had
Curtis obtained a mental evaluation of petitioner before the guilty plea, nor has
petitioner indicated how this evidence would have supported a defense to the
criminal charges or how it would have altered his decision to plead guilty. See id.
at 1033; see also Hill, 474 U.S. at 59 (discussing how to assess prejudice flowing
from counsels alleged failure to investigate).
Curtis did seek a mental evaluation of petitioner before the sentencing
phase, to see if there were mitigating circumstances that would support an
argument for concurrent sentencing. That evaluation revealed petitioner had an
-5-
average intelligence, he was significantly depressed and worried, he had

dependent and passive-aggressive tendencies, and he might have problems with
alcohol abuse and dependency. R. Vol. II, Pet. Ex. 2 at 6-7. Petitioner has not
suggested any of these findings would be a defense to his criminal acts. Though
the testimony at the evidentiary hearing indicated petitioner had engaged in bouts
of heavy drinking after the criminal charges were filed, there is no indication in
the record petitioner was drinking on any of the thirty-one occasions he allegedly
assaulted his daughter. As to the diagnosis of severe depression, Curtis testified
depression is not a defense to the crimes charged and it would not have been
reasonable to pursue a defense on that basis.
We turn, then to petitioners second argument on appeal: that his counsel
coerced him to plead guilty by giving him false assurances of leniency.
Specifically, petitioner contends Curtis led him to believe he would receive only
eighteen years of incarceration. A plea may not be voluntary when an attorney
materially misinforms the defendant of the consequences of the plea or the courts
probable disposition. Laycock v. New Mexico, 880 F.2d 1184, 1186 (10th Cir.
1989). [A]n attorneys unfair representation of probable leniency may be found
coercive. Id.
Based on the testimony at the evidentiary hearing, the magistrate judge
found Curtis did not make any misrepresentations about the length of the sentence
-6-
petitioner faced if he pled guilty. Our own review of the hearing transcript
verifies this finding. Further, even if Curtis had made inaccurate sentencing
predictions to petitioner, the audio tape of the plea hearing reflects the court
advised petitioner several times the total length of his sentence was entirely
within the courts discretion and if the court chose to make the sentences for all
four counts run consecutively, petitioner could receive a seventy-two-year
sentence. [N]o prejudice [arises] from counsels inaccurate sentence or parole
predictions where the court cure[s] the defect by providing the proper
information. Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir.), cert. denied, 117
S. Ct. 493 (1996).
Finally, the evidence of record belies petitioners present contention that he
would not have pleaded guilty to the four counts had he realized he would receive
a thirty-six-year sentence. Petitioner had admitted to Curtis the commission of
more than four instances of sexual penetration. Also, Curtis testified petitioner
was adamant from the outset that he did not want to go to trial because he did not
want to subject his daughter to the criminal process. Instead, petitioner wanted
to get this behind him and admit what he had done, and try to fix the wounds that
had been done prior to him being charged. R. Vol. II at 15. These facts make it
unlikely that petitioner would have chosen to go to trial on the thirty-one counts
-7-
charged, rather than enter a plea of guilty to four of the charges. See Harvey v.
McCaughtry, 11 F.3d 691, 694 (7th Cir. 1993).
Based upon our review, we conclude that petitioner has not made
a substantial showing of the denial of an important federal right by
demonstrating that the issues raised are debatable among jurists, that a court
could resolve the issues differently, or that the questions deserve further
proceedings, Gallagher, 24 F.3d at 68. Therefore, the certificate of probable
cause is DENIED and the appeal is DISMISSED. The mandate shall issue
forthwith.
Entered for the Court
J. Thomas Marten
District Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT *

The Honorable J. Thomas Marten, District Judge, United States District

average intelligence, he was significantly depressed and worried, he had

Entered for the Court

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