Castro v. State of Oklahoma , 431 F. App'x 707 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 25, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TONY ALLEN CASTRO,
Petitioner-Appellant,
v. No. 08-6226
(D.C. No. 5:07-CV-00315-HE)
STATE OF OKLAHOMA; (W.D. Okla.)
ERIC FRANKLIN, Warden,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.
Tony Allen Castro, an Oklahoma state prisoner proceeding pro se, requests
a certificate of appealability (COA) to appeal the district court’s order denying
his habeas petition filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (requiring COA to appeal order denying habeas petition). The
district court did not issue a COA. Mr. Castro’s notice of appeal is construed as a
request for a COA from this court. See Fed. R. App. P. 22(b)(2). We deny
issuance of a COA and dismiss the appeal.
Background
Mr. Castro entered guilty pleas to the charges of second degree burglary of
an automobile and escape from arrest or detention. Pursuant to the plea
agreement, he was sentenced to two concurrent 20-year sentences. He did not
seek to withdraw his guilty pleas. He filed two applications for post-conviction
relief with the state district court, which were denied. The Oklahoma Court of
Criminal Appeals (OCCA) also denied relief on the basis of waiver, holding that
claims that could have and should have been brought in a direct criminal appeal
would not be considered in post-conviction proceedings. R. at 19, 40.
Mr. Castro then filed the underlying habeas petition, which was referred to
a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). In a thorough and
comprehensive report and recommendation, the magistrate judge recommended
that the habeas petition be denied without an evidentiary hearing. The district
court considered Mr. Castro’s objections, adopted the magistrate judge’s
recommendation, and denied the petition.
Mr. Castro argues that his guilty pleas were involuntary because his
attorney coerced him to plead guilty and the trial court failed to develop a factual
basis for his pleas. He further asserts that he was denied the effective assistance
of counsel when entering his guilty pleas. He also claims that the evidence was
insufficient to support his guilt on either felony charge and therefore he should
have been charged with misdemeanors instead of felonies. In addition, he
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complains that he was denied the effective assistance of counsel in this appeal.
He has waived on appeal the remaining arguments he made in the district court,
including his request for an evidentiary hearing in federal court, his claims of
sentencing errors, and his challenges to the state post-conviction proceedings,
because he did not present them in his appellate brief. See Ward v. Williams,
240 F.3d 1238, 1241 n.6 (10th Cir. 2001) (issue not presented in habeas
appellant’s opening brief deemed waived).
Analysis
Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).
Where a district court has rejected the constitutional claims on
the merits, . . . [t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional
claims debatable or wrong. . . . When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The magistrate judge carefully addressed and analyzed each of Mr. Castro’s
claims in a 23-page report and recommendation, which the district court adopted
in its entirety. We find nothing debatable or questionable in the magistrate
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judge’s determinations. No jurist of reason would question the correctness of the
district court’s ruling adopting the magistrate judge’s recommendation.
Accordingly, we deny a COA.
Mr. Castro also claims that he was denied the effective assistance of
counsel in this appeal. Although his attorney filed the notice of appeal and
preliminary documents, the appeal was dismissed on March 31, 2009, based on
the attorney’s failure to prosecute. In November 2010, the appeal was reinstated
on Mr. Castro’s request and he filed a pro se brief, which this court has
considered. He contends that he has been prejudiced by his attorney’s
nonfeasance. To the extent he argues that his attorney’s withdrawal from the
appeal denied him a constitutional right, “[t]here is no constitutional right to
counsel beyond the direct appeal of a criminal conviction.” Coronado v. Ward,
517 F.3d 1212, 1218 (10th Cir. 2008). Accordingly, Mr. Castro has not stated a
claim for denial of the effective assistance of counsel in this appeal.
Conclusion
We DENY the application for a certificate of appealability and DISMISS
the appeal.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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