UNITED STATES COURT OF APPEALS
Filed 7/30/96
TENTH CIRCUIT
DAVID ROBIN WHITMORE,
Petitioner-Appellant,
No. 96-6051
v. (W.D. Oklahoma)
(D.C. No. CIV-95-134-R)
RON CHAMPION,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines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.
Petitioner David Robin Whitmore proceeding pro se and in forma pauperis
appeals from an order of the district court dismissing his 28 U.S.C. § 2254
petition for a writ of habeas corpus. According to Whitmore, the district court
erred in reaching the following conclusions: (1) Whitmore’s guilty plea was
voluntary; and (2) Whitmore’s guilty plea was not the result of ineffective
assistance of counsel. Finding that Whitmore is not entitled to a certificate of
appealability, we dismiss the appeal.
This court is required to examine the appeal of a denial of a writ of habeas
corpus to determine whether the petitioner has made a “substantial showing of the
denial of a constitutional right.” Antiterrorism and Effective Death Penalty Act
of 1996 (the “Act’), Pub. L. No. 104-132, 28 U.S.C. § 2253(c). This court has
held that the standard for granting a certificate of appealability under the Act is
the standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880,
893 (1983). Under this standard, a certificate of appealability will issue only
where the petitioner has demonstrated the issues raised by the petition are
debatable among jurists of reason, a court could resolve the issues differently, or
the questions presented are deserving of further proceedings. Id.
We have reviewed the magistrate’s report and recommendation, the district
court’s order, Whitmore’s brief and application for a certificate of appealability,
and the entire record before us on appeal. We conclude that Whitmore has failed
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to make a “substantial showing of the denial of a constitutional right” for the
reasons set forth in the magistrate’s report and recommendation and the district
court’s order. Accordingly, we DENY Whitmore’s application for a certificate of
appealability and DISMISS the appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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