FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 8, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
ROBERT LEE GREEN,
Petitioner-Appellant,
No. 10-6152
v. (D.C. No. 5:10-CV-00133-C)
(W.D. Oklahoma)
JAMES RUDEK,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Robert Lee Green, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254
application for habeas relief. See 28 U.S.C. § 2253(c)(2) (requiring COA to
appeal denial of application). Because Mr. Green has failed to make a substantial
showing of the denial of a constitutional right, we deny his request for a COA and
dismiss the appeal.
I. BACKGROUND
Mr. Green pleaded no contest to a charge of shooting with intent to kill,
and on October 2, 2007, he was sentenced to a prison term of 13 years. He
moved to withdraw his plea, but the state district court denied the motion after a
hearing, finding that his plea was freely and knowingly given. He sought review
in the Oklahoma Court of Criminal Appeals (OCCA), requesting reduction of his
sentence or permission to withdraw his plea. On July 22, 2008, the OCCA
affirmed Mr. Green’s sentence and conviction and denied relief because the
record supported the state district court’s finding that Mr. Green entered his plea
knowingly and voluntarily.
Mr. Green next filed in state district court an application for postconviction
relief contending that his appellate counsel had provided ineffective assistance by
failing to raise the argument that his arrest at his home without a warrant violated
the Fourth Amendment. The court denied relief on July 20, 2009, because (1)
Mr. Green had failed to plead facts showing that he was incapable of raising his
Fourth Amendment claim before the trial court or on direct appeal and (2) his plea
waived his right to challenge his arrest. Mr. Green tried to appeal that decision to
the OCCA, but it dismissed the appeal for his failure to attach a copy of the
district-court order from which he was appealing.
For his final venture in state court, Mr. Green then filed with the trial court
an “Application to Vacate Judgment and Sentence,” R., Vol. 1 at 85, which
alleged that his trial counsel had provided ineffective assistance by advising him
to enter a plea instead of raising a Fourth Amendment claim. The court denied
that application on November 23, 2009, on the same ground as its July 20 denial.
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Mr. Green then filed with the OCCA a document entitled “Enter of Appearance,”
id. at 95, which the OCCA construed as a request for a writ of mandamus. It
denied the request on January 13, 2010.
On February 10, 2010, Mr. Green filed his application under § 2254 in the
United States District Court for the Western District of Oklahoma. The
magistrate judge construed the application to raise three claims: (1) his plea was
involuntary because it was the product of coercion by his trial counsel, (2) his
trial counsel was ineffective in failing to contest his arrest and search on Fourth
Amendment grounds, and (3) his appellate counsel provided ineffective assistance
by not raising his trial counsel’s failure to argue the illegality of his arrest and
search. The magistrate judge recommended that the district court deny the § 2254
application. In the judge’s view the state court’s determination that Mr. Green’s
plea was knowing and voluntary should be upheld. And the magistrate judge
concluded that even if Mr. Green’s counsel had failed to inform him of his right
to move to suppress evidence, the plea was still valid, noting that the spent
shotgun shell used in the offense had been seized under a warrant, the shotgun
was obtained from a third person, and the victim identified Mr. Green as the
shooter. The district court adopted the report and recommendation and denied
Mr. Green’s application, ruling that the magistrate judge had correctly concluded
that even if the Fourth Amendment issue was not procedurally barred, the issue
was waived by the plea and was factually without merit.
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In his pleadings in this court, Mr. Green argues that the district court erred
in ruling that his Fourth Amendment issue was waived when he entered his plea,
because the plea was the result of the ineffective assistance of his trial counsel.
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing 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,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
provides that when a claim has been adjudicated on the merits in a state court, a
federal court can grant habeas relief only if the applicant establishes that the
state-court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of the facts in
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light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(1), (2). As we have explained:
Under the “contrary to” clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal
quotation marks omitted). Relief is provided under the “unreasonable
application” clause “only if the state court identifies the correct governing legal
principle from the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation
marks omitted). Thus, a federal court may not issue a habeas writ simply because
it concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. See id. Rather,
that application must have been unreasonable. For those of Mr. Green’s claims
that were adjudicated on the merits, “AEDPA’s deferential treatment of state
court decisions must be incorporated into our consideration of [his] request for [a]
COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
No reasonable jurist could debate whether Mr. Green’s application under
§ 2254 should have been resolved in a different manner or that the issues he
presented were adequate to deserve encouragement to proceed further. See Slack,
529 U.S. at 484. In particular, the district court was clearly correct in ruling that
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Mr. Green has not established grounds for relief even if his claims are not barred
by his plea.
III. CONCLUSION
We DENY the application for a COA and dismiss the appeal. We GRANT
Mr. Green’s motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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