F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 19 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
BRODGERICK KYLE SIMMONS,
Petitioner-Appellant,
v. No. 99-5205
TWYLA SNIDER, (D.C. No. 97-CV-837-B)
(N.D. Okla)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**
In January 1993, Petitioner Brodgerick Kyle Simmons pled guilty in Oklahoma
state court to robbery with a firearm and pled nolo contendere to assault and battery with
a dangerous weapon. The trial court sentenced Petitioner to consecutive sentences of 30
years and 10 years imprisonment respectively. Petitioner did not move to withdraw his
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
guilty and nolo contendere pleas and did not perfect a direct criminal appeal. Instead,
Petitioner unsuccessfully sought post-conviction relief in state court. Thereafter,
Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal
district court raising two claims: (1) he was denied due process because he never entered
a guilty plea and was not found guilty by a jury and (2) he received ineffective assistance
of counsel because counsel failed to timely file a notice of or an application to withdraw
Petitioner’s pleas of guilty and nolo contendere. The district court denied the petition as
well as Petitioner’s motion for a certificate of appealability. See 28 U.S.C. § 2253(c).
Now before us is Petitioner’s renewed motion.1
The district court concluded that both Petitioner’s due process claim and his
ineffective assistance of counsel claim were procedurally barred and that Petitioner failed
to demonstrate cause and prejudice or a fundamental miscarriage of justice. See Coleman
v. Thompson, 501 U.S. 722, 750 (1991) (“In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.”).
Pursuant to Fed. R. App. P. 22(b), we construe Petitioner’s notice of appeal as a
1
renewed application for a certificate of appealability.
2
A petitioner may appeal the denial of a § 2254 petition only “if a circuit justice or
judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of
appealability “may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. at 2253(c)(2). We conclude that Petitioner has failed
to make the required showing.
We have thoroughly reviewed Petitioner’s application for a certificate of
appealability, his brief, the district court’s order, and the entire record before us. We
conclude that Petitioner’s claims are procedurally barred substantially for the reasons set
forth in the district court’s order. Accordingly, we deny his request for a certificate of
appealability and dismiss the appeal.2
CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
2
We construe Petitioner’s counsel’s notice of withdrawal of counsel as a motion
to withdraw, see 10th Cir. R. 46.3(A), and grant the motion.
3