F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 19, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
CHARLEY J. STARR,
Petitioner - A ppellant,
v. No. 06-7066
(E.D. Oklahoma)
RANDALL W ORKM AN, W arden, (D.Ct. No. 02-CV-694-JHP-KEW )
Respondent - Appellee.
____________________________
OR DER DENY ING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Charley Joe Starr, a state prisoner proceeding pro se and in forma
pauperis, 1 filed a 28 U.S.C. § 2254 petition for writ of habeas corpus. The
district court dismissed the petition and denied his request for a certificate of
appealability (COA). Starr renews his request for COA here. See 28 U.S.C. §
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
2253(c)(1)(A ); F ED . R. A PP . P. 22(b)(1). We deny the request.
Background
On December 18, 2000, Starr pled guilty in Oklahoma state court, pursuant
to a plea agreement, to the manufacture of a controlled dangerous substance
(Count 1) and possession of a controlled dangerous substance with intent to
distribute w ithin 2,000 feet of a school (Count 2). He was sentenced to twenty
years imprisonment with all but the first ten years suspended. Four days after his
plea and sentencing, Starr sent a letter to the state court asking to withdraw his
guilty plea and consult with an attorney. He explained he made a hasty and
incorrect judgment and did not understand everything he signed. The state court
filed the letter as a motion to withdraw his plea. W hile this motion was pending,
Starr filed an “Application for Post-Conviction Relief/Appeal Out of Time,” a
request for an evidentiary hearing, a motion for speedy hearing and “Writ of
Habeas Corpus ad Testification,” a motion to withdraw his guilty plea, and a
motion for appointment of counsel. These motions were denied. 2 Starr appealed
the denial of his motion for post-conviction relief to the Oklahoma Court of
Criminal Appeals. His conviction was affirmed.
Starr then filed the § 2254 petition at issue here, claiming: (1) he was
2
The record does not reflect the court’s ruling on the motion to appoint counsel.
However, Starr proceeded pro se and in forma pauperis on appeal to the Oklahoma Court
of Criminal Appeals.
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denied a direct appeal through the ineffective assistance of counsel and the trial
court’s delay in ruling on his motion to withdraw; and (2) the signature of the
defendant of the line designated for counsel and counsel’s signature on the line
designated for defendant on the “summary of facts for the plea of guilty” form
was a technical error of such magnitude that he should be allowed to withdraw his
guilty plea.
The magistrate judge issued a report and recommendation to the district
court that the petition be dismissed. The magistrate concluded Starr failed to
establish ineffective assistance of counsel or the denial of a direct appeal. As to
alleged technical errors in the plea agreement, the magistrate correctly noted a
federal court may not issue a writ of habeas corpus on the basis of a perceived
error of state law unless the violation rendered the proceedings fundamentally
unfair. James v. Gibson, 211 F.3d 543, 555 (10th Cir. 2000). In the absence of
“a complete miscarriage of justice” or a proceeding “inconsistent with the
rudimentary demands of fair procedure,” technical violations that could have been
raised on direct appeal may not be raised collaterally. United States v. Timmreck,
441 U.S. 780, 783 (1979) (quotations omitted). The district court adopted the
report and recommendation. It also denied Starr’s request for a COA. Starr
renews his COA request w ith this Court.
Certificate of Appealability
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
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Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if Starr makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether ... the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Insofar as the district court dismissed his habeas petition on
procedural grounds, Starr must demonstrate both 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.” Id. “W here a plain procedural
bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further.” Id. W e review the district court’s factual findings for clear error and its
legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.
2001).
W e agree with the magistrate judge’s thorough discussion and resolution of
the issues as adopted by the district judge. The district court’s order of dismissal
is not reasonably debatable. Slack, 529 U.S. at 484. Starr has failed to make a
sufficient show ing that he is entitled to a COA. Accordingly, we DENY a COA
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and DISM ISS the application.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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