(D.C. No. 5:12-CV-00175-D) (W.D. Okla.).
Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY[*]
Mary Beck Briscoe, Chief Judge.
Rayshawn Crump, an Oklahoma state prisoner, requests a certificate of appealability (COA) to appeal the district court's dismissal of his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny a COA and dismiss this matter.
On May 18, 2009, Crump entered pleas of nolo contendere in the District Court of Oklahoma County to two counts of assault with a firearm, one count of using a vehicle to facilitate the discharge of a firearm, and one count of possession of a firearm. On September 23, 2009, he was sentenced to thirty years' imprisonment on each of the four counts, to be served concurrently. Crump moved to withdraw his plea, and following a hearing, the state trial court denied the motion. He appealed, and the Oklahoma Court of Criminal Appeals (OCCA) denied his petition for writ of certiorari and affirmed the judgment and sentence of the state trial court. Crump sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the District Court for the Western District of Oklahoma, arguing that his pleas were not knowingly and voluntarily entered in accordance with due process guaranteed by the Fourteenth Amendment. The district court denied Crump's petition for habeas relief and denied his application for a COA.
Crump seeks a COA on the claim that his no contest pleas were not entered knowingly or voluntarily and were made in violation of his Fourteenth Amendment right to due process, contending that he was unaware of and misadvised regarding the minimum mandatory length of incarceration to which his pleas subjected him. He argues that his attorney told him that if a jury was to find him guilty, he would face a minimum sentence of twenty years. But Crump claims his attorney also told him that with a plea, the judge could "do whatever he would like to do, " and that he could be sentenced to "10 out and 10 in or something like that." Aplt. App. at 45, 47.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), we may not grant relief for an application of writ of habeas corpus to a claim that was adjudicated on the merits in state court unless the adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A petitioner seeking habeas relief must obtain a COA before this court may consider the merits of his appeal. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) ("[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners."). To be entitled to a COA, Crump must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this showing, the 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." Miller-El, 537 U.S. at 336 (quotations omitted). Where, as here, the district court has rejected the constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Factual findings made by a state court are presumed to be correct and they may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2253(e)(1).
Whether a defendant knowingly and voluntarily entered into a plea is a question of law that this court reviews de novo, but "[t]o the extent that the question of whether the defendant knowingly and voluntarily made the plea depends on findings of fact made by the state court on habeas review, these findings, with specific exceptions, carry a presumption of correctness." Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996). "[I]f a defendant's guilty plea [or no contest plea] is not . . . voluntary and knowing, it has been obtained in violation of due process and is therefore void." Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). The test for a valid plea is "whether the plea represents a ...