F I L E D
United States Court of Appeals
Tenth Circuit
AUG 7 2001
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
CHARLES R. MCMILLAN,
Petitioner-Appellant, No. 00-3375
v. (D.C. No. 99-CV-3155-DES)
DAVID R. MCKUNE; ATTORNEY (D. Kan.)
GENERAL FOR THE STATE OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
State prisoner Charles R. McMillan seeks to appeal from the dismissal of
*
This order and judgment is not binding precedent, except under the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.
his 28 U.S.C. § 2254 habeas petition. Petitioner pleaded guilty to felony murder
for which he was sentenced to life imprisonment. Petitioner sought a writ of
habeas corpus in the United States District Court for the District of Kansas,
alleging that the state trial court erred in: (1) denying a motion to withdraw plea
without an evidentiary hearing; (2) not appointing counsel to withdraw plea; (3)
not producing proof of the factual basis for felony murder and the underlying
felony charge; and (4) not fully informing Petitioner that his constitutional rights
were waived upon acceptance of a guilty plea. The district court denied the
petition, holding that Petitioner’s first and second assignments of error did not
implicate federal law and that Petitioner’s third and fourth claims were
unsupported by the evidence in the state court record. Finding no merit to any of
Petitioner’s arguments, the court declined to grant Petitioner a certificate of
appealability as required by 18 U.S.C. § 2253(c) to appeal his § 2254 petition.
Petitioner then applied to this court for a certificate of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate 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.” Slack v. McDaniel, 529 U.S. 473,
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484 (2000) (quotations omitted).
We have carefully reviewed Petitioner’s brief, the disposition of the district
court, and the record on appeal. We now conclude that for substantially the same
reasons as set forth by the district court in its Memorandum and Order of October
13, 2000, we cannot say that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner.”
Slack, 529 U.S. 473 at 484 (quotations omitted). We thus deny Petitioner’s
request for a certificate of appealability.
Petitioner further moved both the district court and this court to proceed in
forma pauperis on appeal. After Petitioner had filed his application to this court,
the district court granted his motion. We therefore dismiss Petitioner’s motion in
this court to proceed in forma pauperis as moot.
Accordingly, we DENY Petitioner's request to proceed in forma pauperis
on appeal as moot, DENY him a certificate of appealability, and DISMISS the
appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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