                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                              December 12, 2006

                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court



 JO SEPH M cC RA Y ,

          Petitioner-A ppellant,
                                                        No. 06-3229
 v.
                                                 (D.C. No. 05-CV -3323-JW L)
                                                           (Kansas)
 DA VID R . M cKU NE; and PHILL
 KLIN E, Kansas A ttorney General,

          Respondents-Appellees.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.


      Joseph M cCray, a state prisoner appearing pro se 1 , seeks a certificate of

appealability (COA) to challenge the district court’s denial of his petition for w rit

of habeas corpus under 28 U.S.C. § 2254. 2 Exercising jurisdiction under

28U.S.C. § 2253(c)(1), w e see no basis for appeal and deny a COA.


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
       W e liberally construe M r. M cCray’s pro se application. See Cum mings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).
      2
      The district court denied M r. M cCray’s request for a COA but granted his
motion to proceed in form a pauperis on appeal.
      M r. M cCray entered an Alford plea to two counts of aggravated kidnapping

and two counts of aggravated robbery in Kansas state court. A stipulated

agreement embodying M r. M cCray’s expected testimony established the factual

basis for his plea. M r. M cCray was subsequently sentenced to 214 months

imprisonment. Ten days after entering his Alford plea, M r. M cCray filed a

motion to vacate his plea agreement and withdraw his guilty plea. The state

district court denied this motion, M r. M cCray appealed, and the Kansas Court of

Appeals affirmed his conviction. State v. M cCray, 87 P.3d 369 (Kan. Ct. App.

2004). M r. M cCray then filed a habeas petition pursuant to 28 U.S.C. § 2254,

asserting his due process rights were violated when (1) he did not knowingly and

voluntarily enter into the Alford plea, and (2) the trial court accepted a written

statement of the factual basis for the plea without reading those stated facts in

open court.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).

Before he may appeal, he first must obtain a COA. Otherwise the court of

appeals is without jurisdiction. See id. at 336. A COA will issue only if

petitioner makes “a substantial showing of the denial of a constitutional right.”

Slack v. M cDaniel, 529 U.S. 473, 483 (2000) To do so, petitioner must show

“that reasonable jurists could debate whether . . . the petition should have been

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resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Id. (citations and internal quotation

marks omitted).

      In determining w hether the petitioner has made the required showing, we

review the claims presented in his § 2254 petition and generally assess their

merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of A EDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists of reason.” Id. W here, as

here, petitioner’s federal habeas claims w ere adjudicated on the merits, we will

grant an application for a COA “only where the state court decision was ‘contrary

to, or involved an unreasonable application of , clearly established Federal law, as

determined by the Supreme Court . . .’ or 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).” Dockins v. Hines, 374 F.3d 935, 936-37

(10th Cir. 2004).

      The district court reviewed M r. M cCray’s claims on the merits and rejected

them. Specifically, the district court, applying AEDPA deference to the state

court’s decisions, concluded M r. M cCray’s right to due process was not violated

by the trial court’s refusal of his request to withdraw his guilty plea.

      In reviewing a state court guilty plea, we are only looking to evidence of

constitutional due process infirmities, indications that M r. M cCray did not

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understand “the nature and the consequences of the charges against him and” did

not “voluntarily cho[o]se to plead guilty.” M iles v. Dorsey, 61 F.3d 1459, 1466

(10th Cir. 1995). M r. M cCray asserts that a pre-plea discussion with a state court

judge, at the suggestion of his attorneys when he balked at going forward with the

Alford plea, undermined the voluntariness of his plea by coercing him to accept it.

How ever, as M iles notes, federal rules that prevent judicial involvement in plea

discussions do not establish a per se constitutional bar that similarly limits state

judges. Id. at 1467. The determinative issue is whether such a discussion

“coerced [M r. M cCray] to enter into a plea bargain involuntarily.” Id. Both the

Kansas Court Appeals and the federal district court provided well-reasoned and

factually compelling rebuttals to M r. M cCray’s assertion that his discussion with

the judge and interactions with his own counsel produced an involuntary plea.

See McCray, 87 P.3d at 372; Dist. Ct. Rec. at doc. 22. Our review of the record

bears out this conclusion. W e are not persuaded that reasonable jurists w ould

disagree that M r. M cCray’s plea was voluntary.

      M r. M cCray also contends his due process rights were violated when the

trial court accepted a written statement of the factual basis for the plea without

reading the facts in open court. At the plea hearing, the factual basis for the

Alford plea consisted of a written stipulation that attested to relevant facts and

was signed by defendant and the attorneys involved. During the hearing, the state

court offered defendant an opportunity to “comment” and state whether the

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stipulation was “satisfactory.” Tr., Plea Hr’g at 12-13. M r. M cCray

acknowledged his “statements” were of his own “free will” and were “free and

voluntary,” and his counsel stated that M r. M cCray was entering into the plea to

“take the benefit of this bargain.” Id. at 12-14. The state court subsequently

found the “facts contained in the statements . . . would support the entry of those

pleas of guilty,” and accepted M r. M cCray’s Alford plea as representing his “ow n

free will.” Id. at 15.

      Like the district court, we find no published opinions suggesting that a

freely drafted and agreed upon stipulation to facts not read into the record in

support of an Alford plea constitutes a constitutional due process violation. Thus,

we conclude reasonable jurists would concur that the failure to read into the

record the factual basis for M r. M cCray’s plea did not infringe upon his

constitutional rights.

      Accordingly, we D EN Y M r. M cCray’s request for a COA.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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