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JUN 17 1998
PATRICK FISHER
Clerk
v.
STEVEN A. FORSYTHE,
Defendant-Appellant.
After examining defendants brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal.
see 28 U.S.C.
2253(c)(1)(B), that would enable him to appeal the district courts denial of his
This order and judgment is not binding precedent, except under the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.
28 U.S.C. 2255 motion for relief from his drug trafficking conviction.
See United States v. Forsythe , 985 F. Supp. 1047 (D.Kan 1997). Because
defendant failed to make a substantial showing of the denial of a constitutional
right, we deny his application and dismiss this appeal.
See 28 U.S.C.
2253(c)(2).
Defendant asserts two arguments. First, he argues that his attorney was
ineffective for failing to file a direct appeal.
1499 (10th Cir. 1991) (constitutionally effective counsel must file direct criminal
appeal if defendant requests). The district court, however, following an
evidentiary hearing, found that defendant had in fact not requested that his
attorney pursue a direct appeal. There is no indication that this factual finding
is clearly erroneous.
(10th Cir. 1998) (reviewing district courts factual findings, made in 2255
proceeding, for clear error);
1438 (10th Cir. 1988) (factual findings based upon credibility of witnesses are
special province of district court).
Secondly, defendant argues that the government breached the plea
agreement by failing to make a motion for a reduction in his sentence, pursuant
to U.S.S.G. 5K1.1, in light of his cooperation.
that, at the sole discretion of the United States Attorneys Office, the
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government would file such a motion in the event that defendant provides
substantial assistance. Appellants Br., App. 1 at 2-3.
to file a 5K1.1 motion because state authorities arrested defendant for drug
trafficking activities, following his guilty plea but before sentencing on the
federal conviction.
See United States v. Lee , 989 F.2d 377, 380 (10th Cir. 1993)
See United
See, e.g. , United States v. Lopez , 100 F.3d 113, 117 (10th Cir.
1996). Nonetheless, counsel was not ineffective in this case for failing to advise
defendant to pursue this claim on direct appeal.
Robert H. Henry
Circuit Judge
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