Miguel Delgado v. United States, 162 F.3d 981 (8th Cir. 1999). · Go Syfert
Miguel Delgado v. United States, 162 F.3d 981 (8th Cir. 1999). Cases Citing This Book View Copy Cite
113 citation events (103 in the last 25 years) across 7 distinct courts.
Strongest positive: Casey Lynn Crow Ghost v. United States of America (sdd, 2026-04-29)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Casey Lynn Crow Ghost v. United States of America (2×)
D.S.D. · 2026 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Trent Brewer v. United States of America
D.S.D. · 2026 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Ronnie White Mountain v. United States of America
D.S.D. · 2026 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) James Clinton Ashburn v. United States of America
D.S.D. · 2026 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Tyler Makes Him First v. United States of America
D.S.D. · 2025 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir, 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Adan James Corona v. United States
D.S.D. · 2025 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Perez v. United States
D.S.D. · 2025 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Fontenot v. United States
D.S.D. · 2025 · confidence medium
Second, petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Story v. United States
D.S.D. · 2025 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Adams v. United States
D.S.D. · 2024 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Oxford v. United States
D.S.D. · 2024 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Jones v. United States
D.S.D. · 2024 · confidence medium
However, a § 2255 “petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
discussed Cited as authority (rule) Vostad v. United States (2×) also: Cited "see"
D.S.D. · 2024 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Paw v. United States (2×)
D.S.D. · 2024 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Huemoeller v. United States
D.S.D. · 2024 · confidence medium
The petitioner must “overcomfe] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Edger v. United States (2×) also: Cited "see, e.g."
E.D. Mo. · 2023 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (movant made no showing why additional evidence would likely have affected the result).
discussed Cited as authority (rule) Quevedo v. Sullivan
D.S.D. · 2022 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Erickson v. United States
D.S.D. · 2022 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Left Hand v. United States
D.S.D. · 2022 · confidence medium
However, a § 2255 “petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
discussed Cited as authority (rule) Mann v. Clark (2×)
D.S.D. · 2022 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Bradshaw v. United States
D.S.D. · 2022 · confidence medium
The petitioner must “overcom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 689 ).
discussed Cited as authority (rule) Waller v. United States
E.D. Mo. · 2021 · confidence medium
Mo. Dec. 31, 2009) (citing Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998)); Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (no hearing required where claim is inadequate on its face or the record affirmatively refutes the factual assertions upon which it is based).
discussed Cited as authority (rule) Rodlund v. United States
D.S.D. · 2020 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) St. Pierre v. United States
D.S.D. · 2020 · confidence medium
However, a § 2255 “petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
discussed Cited as authority (rule) Keys v. United States (2×)
D.S.D. · 2020 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 8.
discussed Cited as authority (rule) St. Pierre v. United States
D.S.D. · 2020 · confidence medium
“To succeed on this claim, [petitioner] must show ineffective assistance--that counsel’s representation fell below an objective standard of reasonableness.” Wilcox v. Hopkins, 249 F.3d 720, 722 (8th Cir. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985)), Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 …
cited Cited as authority (rule) Jewell v. Dunn
N.D. Ala. · 2019 · confidence medium
Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citation omitted); Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998).
cited Cited as authority (rule) Kills In Water v. United States
D.S.D. · 2019 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
examined Cited as authority (rule) Fire Cloud v. United States (3×)
D.S.D. · 2018 · confidence medium
United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 8S.
discussed Cited as authority (rule) Perko v. United States
D.S.D. · 2018 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Craig v. Young
D.S.D. · 2018 · confidence medium
Petitioner ‘must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable □ probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 US. 668, 694, 104 S. Ct. 2052, 2068 , 80 L.
discussed Cited as authority (rule) Perko v. United States
D.S.D. · 2018 · confidence medium
Petitioner “must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different.” Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), (citing Strickland v. Washington, 466 U.S. 668, 694 , 104 S. Ct. 2052, 2068 , 80 L.
cited Cited as authority (rule) United States v. Spight
D. Minnesota · 2017 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998).
discussed Cited as authority (rule) Nelson v. United States
W.D. Mo. · 2015 · confidence medium
“A claim of ineffective assistance based on the failure to consult and call an expert requires ‘evidence of what a scientific expert would have stated’ at trial in order to- establish Strickland preju dice.” Rodela-Aguilar v. United States, 596 F.3d 457, 462 (8th Cir.2010) (quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.2009) and also citing Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998)).
discussed Cited as authority (rule) Honken v. United States
N.D. Iowa · 2013 · confidence medium
“A claim of ineffective assistance based on the failure to consult and call an expert requires ‘evidence of what [an] ... expert would have stated’ at trial in order to establish Strickland prejudice.” Rodela-Aguilar v. United States, 596 F.3d 457, 462 (8th Cir.2010) (quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.2009)) (citing Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998)).
discussed Cited as authority (rule) Young v. United States
D.S.D. · 2013 · confidence medium
The petitioner must “overeom[e] the strong presumption that defense counsel’s representation fell ‘within the wide range of reasonable professional assistance.’ ” Delgado v. United States, 162 F.3d 981, 982 (8th Cir.1998) (quoting Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 ); see also DeRoo v. United States, 223 F.3d 919, 925 (8th Cir.2000) (noting that a petitioner “faces a heavy burden to establish ineffective assistance of counsel pursuant to section 2255”) (internal quotation marks omitted). “[Strategic choices made after thorough investigation of law and facts relevant t…
discussed Cited as authority (rule) Johnson v. United States
N.D. Iowa · 2012 · confidence medium
The court has also explained, “A claim of ineffective assistance based on the failure to consult and call an expert requires ‘evidence of what a scientific expert would have stated’ at trial in order to establish Strickland prejudice.” Rodela-Aguilar v. United States, 596 F.3d 457, 462 (8th Cir.2010) (quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009), and also citing Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998)).
discussed Cited as authority (rule) Nona Champion v. United States (2×)
8th Cir. · 2009 · confidence medium
But no such hearing is required when "the allegations ... are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (internal quotation marks omitted).
discussed Cited as authority (rule) Medearis v. United States
D.S.D. · 2006 · confidence medium
Before doing so, the Court must determine, in accordance with Rules 4(b) and 8(a) of the § 2255 Rules, whether such a hearing is required in this instance. [¶ 13] An evidentiary hearing need not be held “if (1) the [defendant’s] allegations, accepted as true, would not entitle [him] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Buster v. United States, 447 F.3d 1130, 1132 (8th Cir.2006) (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir.2003), cer…
cited Cited as authority (rule) Petersen v. United States
D.S.D. · 2005 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)).
cited Cited as authority (rule) United States v. Antonio Johnson
8th Cir. · 2004 · confidence medium
See U.S.S.G. § 1B1.10(a); Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998).
cited Cited as authority (rule) Hawk v. United States
D.S.D. · 2004 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)).
discussed Cited as authority (rule) Bear Stops v. United States (2×)
D.S.D. · 2002 · confidence medium
However, a § 2255 “petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)).
cited Cited as authority (rule) United States v. Hill
D.S.D. · 2001 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)).
cited Cited as authority (rule) United States v. Henry Taylor, Jr.
8th Cir. · 2001 · confidence medium
Delgado v. United States, 162 F.3d 981, 982 (8th Cir.1998) (citing Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)).
cited Cited as authority (rule) Henry Taylor, Jr. v. United States
8th Cir. · 2001 · confidence medium
Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
discussed Cited as authority (rule) Jermaine Saunders v. United States
8th Cir. · 2001 · confidence medium
"Because [Saunders] made no showing of what other witnesses were available, how they would have testified, and why such additional evidence would likely have affected the result, he has failed to prove either that counsel's assistance was ineffective or prejudice." Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (citations omitted).
discussed Cited as authority (rule) Jermaine Dana Saunders, Also Known as \Chatter
unknown court · 2001 · confidence medium
“Because [Saunders] made no showing of what other witnesses were available, how they would have testified, and why such additional evidence would likely have affected the result, he has failed to prove either that counsel’s assistance was ineffective or prejudice.” Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (citations omitted).
discussed Cited as authority (rule) United States v. Shawn E. Davis (2×) also: Cited "see"
8th Cir. · 2000 · confidence medium
A § 2255 motion "'can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.'" Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
cited Cited as authority (rule) Gomez v. United States
D.S.D. · 2000 · confidence medium
Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)).
Retrieving the full opinion text from the archive…
Miguel DELGADO, Petitioner-Appellant,
v.
UNITED STATES of America, Defendant-Appellee
97-4309.
Court of Appeals for the Eighth Circuit.
Mar 18, 1999.
162 F.3d 981
Cheryl Ann Pilate, Kansas City, Missouri, argued, for Appellant., Mark Andrew Miller, Assistant United States Attorney, Kansas City, Missouri, argued (Stephen L. Hill, Jr., on the brief), for Appellee.
Beam, Loken, Murphy.
Cited by 62 opinions  |  Published
LOKEN, Circuit Judge.

In April 1993, a jury convicted Miguel Delgado of possession with intent to distribute cocaine and aiding and abetting in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 2. Delgado did not appeal. In 1996, he filed motions for post-conviction relief under 28 U.S.C. § 2255, claiming ineffective assistance of trial counsel and a right to be resen-tenced under the new “safety valve” provision in U.S.S.G. § 5C1.2. The district court [1][*982] denied both motions. Delgado appeals, arguing the court erred in denying his claims of ineffective assistance without an evidentiary hearing, and that he is entitled to a reduced sentence under the safety valve. We deny as untimely the government’s motion to dismiss the appeal and affirm.

I.

In November 1992, local drug dealer Daniel Bebemeyer was arrested attempting to sell two kilograms of cocaine to an undercover agent in a Kansas City hotel room while Delgado waited outside in the hotel parking lot with the remaining three kilograms of the five kilogram transaction. Steve Deleon, a California friend of Bebemeyer and Delgado who had brokered the transaction, was arrested later that day. Delgado fled on foot, making his way back to his home in California where he was arrested two months later. Bebemeyer and Deleon pleaded guilty and testified that Delgado was the supplier for this and earlier cocaine transactions. Numerous FBI agents corroborated various aspects of this testimony with evidence such as fingerprints from the car in which the cocaine was found; records of phone calls between Delgado, Deleon, and Bebemeyer; and Delgado’s Kansas City hotel receipts from the time of the transaction. Delgado testified in his own behalf, providing an innocent explanation of why he was in Kansas City with Deleon, and denying any knowledge of cocaine sales or the cocaine that was in the car from which he fled.

In this § 2255 proceeding, Delgado argues his lead trial counsel, retained attorney Manuel Lopez of Los Angeles, provided constitutionally ineffective assistance. To establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Delgado must prove that attorney Lopez’s performance was deficient, overcoming the strong presumption that defense counsel’s representation fell “within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Delgado must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonable probability that the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. [2] We review these ultimate issues de novo. See Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir.1994), cert. denied, 513 U.S. 1161, 115 S.Ct. 1124, 130 L.Ed.2d 1087 (1995).

Delgado first contends that Lopez failed to develop a “viable theory of defense at trial.” We are unable to review this contention because the record on appeal contains only a partial trial transcript that does not include closing arguments of counsel, the point in the trial when defense counsel’s theory of the case would usually be best articulated. We deduce from attorney Lopez’s cross examination of Deleon and direct examination of Delgado that there was in fact a “viable theory” of innocence — Deleon was a wealthy California entrepreneur, Delgado was a struggling businessman who became acquainted with Deleon while repairing his fancy cars, and Deleon lured the unsuspecting Delgado to Kansas City to seek out a new business venture, not to consummate a large drug deal. This claim of ineffective assistance is without merit.

Delgado next argues that attorney Lopez “failed to develop certain exculpatory evidence.” This contention is based upon an affidavit from Delgado’s local trial counsel, Willard Bunch. In conclusory fashion, Bunch avers that co-counsel Lopez should have developed evidence supporting Delgado’s testimony on various peripheral issues- — - how Delgado traveled to and from Kansas City, whether Delgado was interested in possible business opportunities in Kansas City, whether money wired to California was intended for someone else, whether Delgado lacked financial resources, that Deleon “was heavily involved in the drug trade,” and that Bebemeyer’s phone notes might have referred to other employees at Delgado’s place of business. A review of the partial trial transcript demonstrates that most of what[*983] attorney Bunch now says Lopez should have developed would have been cumulative to what Lopez in fact presented. Moreover, Bunch’s affidavit does not specify what additional evidence was available and notably fails to aver that he urged Lopez to do more at the time of trial. Because Delgado made no showing of what other witnesses were available, how they would have testified, and why such additional evidence would likely have affected the result, he has failed to prove either that counsel’s assistance was ineffective, see Wing v. Sargent, 940 F.2d 1189, 1191 (8th Cir.1991), or prejudice, see Sanders v. Trickey, 875 F.2d 205, 210-11 (8th Cir.), cert. denied, 493 U.S. 898, 110 S.Ct. 252, 107 L.Ed.2d 201 (1989); Stokes v. Armontrout, 851 F.2d 1085, 1095 (8th Cir. 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989).

Delgado next argues that attorney Lopez failed to adequately prepare Delgado for his trial testimony. The partial trial transcript refutes this claim. Lopez led Delgado through a direct examination in which Delgado told about his business plans- with Deleon, Deleon’s expensive house and cars, the reason for Delgado’s trip to Kansas City, and how Delgado came innocently to be in a car with three kilograms of cocaine. Delgado emphatically denied any involvement in illegal drag trafficking. Unfortunately for him, his story was improbable and full of inconsistencies, and the jury chose to believe Bebemeyer and Deleon. The adverse verdict was not, however, attributable to ineffective assistance by attorney Lopez.

Finally, Delgado argues the district court erred in denying an evidentiary hearing on these ineffective assistance claims. A § 2255 “petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995). We review the denial of an evidentiary hearing for abuse of discretion. See Widgery v. United States, 796 F.2d 223, 224 (8th Cir.1986). Here, Delgado’s assertions of ineffective assistance were stated in conclusory fashion. These assertions were contradicted by attorney Lopez’s performance as revealed by the trial transcript. The supporting affidavit from attorney Bunch lacked inherent credibility and failed to specify what additional evidence could be developed at an evidentiary hearing. In these circumstances, the same district judge who tried the case clearly did not abuse his discretion in concluding that Delgado’s ineffective assistance claims are all inadequate on their face. See Payne v. United States, 78 F.3d 343, 347 (8th Cir.1996); Porcaro v. United States, 832 F.2d 208, 212-13 (1st Cir. 1987).

II.

Delgado argues he should be resentenced under U.S.S.G. § 5C1.2, which provides that drag offenders should be sentenced in accordance with the applicable guidelines, without regard to any statutory minimum sentence, if they meet stringent criteria found in 18 U.S.C. § 3553(f)(1 )-(5). Delgado was sentenced on July 26, 1993. The statutory “safety valve,” 18 U.S.C. § 3553®, applies only to “sentences imposed on or after the 10th day beginning after the date of enactment,” or September 23, 1994. Violent Crime Control and Enforcement Act, Pub.L. 103-322, § 80001(c), 108 Stat. 1796. Likewise, the companion Guidelines safety valve, U.S.S.G. § 5C1.2, became effective September 23, 1994. Favorable guidelines amendments may be used to reduce an earlier sentence only if such a reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The Commission lists Guidelines amendments that may be retroactively applied to lower a previous sentence in U.S.S.G. § 1B1.10(c). Consistent with Congress’s decision not to make § 3553® retroactive, amendment 509 which enacted § 5C1.2 is not listed in § 1B1.10(c). Therefore, § 5C1.2 may not be applied to reduce Delgado’s sentence. Moreover, even if § 5C1.2 had been in effect at the time of Delgado’s sentencing, we see no indication he satisfied his “burden to show, through affirmative conduct, that he has given the govern[*984] ment truthful information and evidence about the relevant crimes before sentencing.” United States v. Weekly, 118 F.3d 576, 581 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 611, 139 L.Ed.2d 497 (1997).

The judgments of the district court dated March 26, 1997, and June 16, 1997, are affirmed.

1

. The HONORABLE SCOTT O. WRIGHT, United Slates District Judge for the Western District of Missouri.

2

. We reject as fundamentally inconsistent with Strickland and Hill v. Lockhart, 28 F.3d 832, 837-39 (8th Cir.1994), cert. denied, 513 U.S. 1102, 115 S.Ct. 778, 130 L.Ed.2d 673 (1995), Delgado's unsupported assertion that the failure of defense counsel "to put forth any semblance of a defense" is a structural error for which prejudice is assumed.