Galloway v. Howard , 352 F. App'x 265 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 4, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ROBERT WILLIAM GALLOWAY,
Petitioner-Appellant,
No. 08-6270
v. (D.C. No. 5:08-CV-00285-C)
(W.D. Okla.)
BRUCE HOWARD,
Respondents-Appellees.
ORDER
Before HARTZ, and McKAY, and SEYMOUR, Circuit Judges.
Petitioner Robert Galloway (“petitioner”) asks us to grant a Certificate of
Appealability (COA), authorizing him to appeal the district court’s denial of his
petitions for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set
forth below, we decline to do so.
Petitioner attempted to plead guilty in Oklahoma state court and to accept
concurrent ten-year sentences for the charges of unauthorized use of a motor
vehicle and driving under the influence, as well as a concurrent one-year sentence
for driving under a revocation. The county judge did not accept the ten-year
sentence for unauthorized use of a motor vehicle. Petitioner subsequently entered
a new guilty plea and received concurrent sentences of twenty-five years for
unauthorized use of a motor vehicle, ten years for driving under the influence, and
one year for driving under revocation. Later, appearing pro se, he filed a motion
to withdraw his guilty plea. After a hearing, the state court denied his motion.
Petitioner appealed through counsel to the Oklahoma Court of Criminal Appeals
(OCCA). The OCCA affirmed. Petitioner sought post-conviction relief. Once
again, the state district court denied his motion and the OCCA affirmed the
district court’s denial.
Proceeding pro se, petitioner filed a 28 U.S.C. § 2254 petition for a writ of
habeas corpus, on substantially similar grounds as those raised before the OCCA.
The district court for the Western District of Oklahoma denied habeas relief and
his request for a Certificate of Appealability (COA), adopting the Magistrate
Judge’s Report and Recommendation, to which petitioner had timely objected.
Galloway v. Howard, 624 F. Supp. 2d 1305, 1307-08 (W.D. Okla. 2008).
Petitioner now appears pro se seeking a COA from this court.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), we may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this requirement, “a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
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deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (citations and internal alteration and quotation marks omitted).
Where the state court proceedings included adjudication of the merits of
petitioner’s federal habeas claims, we may grant a writ of habeas corpus only if
the state court decision was: “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court . . .” or
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d). Where AEDPA is
applicable, the question on a COA application is “whether the District Court’s
application of AEDPA deference, as stated in §§ 2254(d)(2) and (e)(1), to
petitioner’s . . . claim was debatable amongst jurists of reason.” Miller-El, 537
U.S. at 341; see Dockins v. Hines, 374 F.3d 935, 937-39 (10th Cir. 2004)
(interpreting Miller-El).
Petitioner’s request for a COA is substantially based on the same claims
and arguments presented to the district court, i.e., violation of the Due Process
Clauses of the Fifth and Fourteenth Amendments due to reinstatement of the
charge of unauthorized use of a motor vehicle against him in violation of state
rules and the district court’s abuse of discretion in refusing to allow him to
withdraw his guilty plea; involuntariness of his guilty plea due to coercion; and
ineffective assistance of trial and appellate counsel in violation of the Sixth
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Amendment. 1 We have carefully reviewed petitioner’s brief, the district court’s
disposition, the magistrate judge’s Report and Recommendation, and the record
on appeal. Based on that review, we cannot say that petitioner has met the
standards for obtaining a COA. Id. Accordingly, we DENY petitioner’s
applications for a COA substantially for the reasons set forth by the district
court’s order adopting the magistrate judge’s report and recommendation. 2
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
1
Petitioner has abandoned his “excessive sentence for unauthorized use of
a motor vehicle” claim on appeal.
2
We grant petitioner’s in forma pauperis application.
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