Barron v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
THOMAS RICHARD BARRON,
Petitioner-Appellant, No. 04-6144
v. (W.D. Oklahoma)
RON WARD, (D.C. No. CIV-03-1051-R)
Respondent-Appellee.
ORDER
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
Thomas Richard Barron, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254petition for habeas corpus. Mr. Barron also seeks to proceed in forma pauperis.
We deny his request for a COA and dismiss this matter.
I. BACKGROUND
In August 2001, Mr. Barron pleaded guilty in Oklahoma state court to one
count of possession of a controlled dangerous substance within 1,000 feet of a
school and one count of manufacturing a controlled dangerous substance. Mr.
Barron was sentenced to consecutive terms of twenty years’ imprisonment for
each count and fined $50,000. The trial court denied his motion to withdraw his
plea in October 2001, and the Oklahoma Court of Criminal Appeals (“OCCA”)
later denied certiorari. In April 2002, Mr. Barron filed his § 2254 petition in
federal district court. He alleged (1) involuntariness of his guilty plea in violation
of the right to a fair trial under the Fifth, Sixth, Eighth and Fourteenth
Amendments, (2) ineffective assistance of counsel in violation of the Sixth
Amendment, and (3) erroneous denial of his motion to withdraw his guilty plea in
violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Following the
magistrate judge’s recommendations, the district court denied Mr. Barron’s §
2254 petition in April 2004. He now seeks a COA so he may appeal the district
court’s ruling on the same three grounds rejected by the district court.
II. DISCUSSION
We may issue a COA and entertain Mr. Barron’s appeal only if he “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make a substantial showing, Mr. Barron “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 deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).
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In addition, an Oklahoma state court has already adjudicated Mr. Barron’s
habeas claims on the merits. In cases like this, we may grant habeas relief only
where the state court decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court” or was “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). We have
also recently held that this “deferential treatment of state court decisions must be
incorporated into our consideration of a habeas petitioner’s request for COA.”
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
Applying this deferential standard, we have reviewed the magistrate judge’s
report and recommendation, the district court’s order and the entire record and
brief on appeal. For substantially the same reasons set out in the magistrate
judge’s thorough report and recommendation, and the district court’s order
addressing objections to the report and recommendation, we conclude that Mr.
Barron has not made a “substantial showing of the denial of a constitutional
right” under 28 U.S.C. § 2253(c)(2). First, the OCCA did not unreasonably apply
federal law when it ruled that the trial court sufficiently informed the petitioner of
his sentencing range and that he adequately understood the consequences of his
plea. Second, we conclude that the OCCA did not err when it found no “actual
conflict,” at the plea hearing or the hearing to withdraw Mr. Barron’s plea of
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guilty, that adversely affected his counsel’s performance. Finally, the trial court
did not abuse its discretion when it did not allow the petitioner to withdraw his
guilty plea.
We therefore DENY Mr. Barron’s application for a COA. We GRANT his
motion to proceed in forma pauperis and DISMISS the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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