                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 18, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 DARRYL PORTER,

                 Petitioner - A ppellant,               No. 06-3133
          v.                                              D. Kansas
 DA VID R . M CK UN E; ATTO RN EY               (D.C. No. 05-CV -3297-JW L)
 GEN ERAL O F KANSAS,

                 Respondents - Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Darryl Porter pleaded guilty in June 1993 in Kansas state court to several

offenses and was sentenced to a term of imprisonment of 40 to 60 years. He filed

an application under 28 U.S.C. § 2254 in the United State District Court for the

District of Kansas, arguing that (1) he received ineffective assistance of counsel

and (2) his guilty plea was not knowing and voluntary. The district court denied


      *
       After examining the briefs and 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 § 2254 application and denied a certificate of appealability (COA), see

28 U.S.C. § 2253(c)(1) (requiring COA). M r. Porter now seeks a COA from this

court, which we deny.

I.    B ACKGR OU N D

      In October 1992 M r. Porter robbed a grocery store in Overland Park,

Kansas. During the robbery he held the store manager at gunpoint, forced him to

the office where the store’s safe was located, compelled him to open the safe, and

then shot him. The store manager was severely wounded. M r. Porter was

captured by police soon thereafter.

      M r. Porter was charged with aggravated robbery, aggravated kidnapping,

and attempted first-degree murder. He pleaded guilty to the charges, except that

the charge of aggravated kidnapping (which carried a possible life sentence) was

reduced to kidnapping. In 1999 he commenced a state habeas corpus proceeding

under Kan. Stat. Ann. § 60-1507, arguing that he was denied effective assistance

of counsel at his plea hearing. The trial court denied the motion, and the Kansas

Court of Appeals affirmed. M r. Porter then filed a motion to correct an illegal

sentence, challenging the factual basis for the kidnapping and attempted-murder

charges. This, too, was denied by the trial court, and the Kansas Court of

Appeals affirmed.

      On July 1, 2005, M r. Porter filed his § 2254 application, which the district

court denied. In seeking to appeal that denial, he makes tw o claims: (1) his

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counsel was ineffective for failing to inform him that there was no factual basis

for his plea of guilty to the kidnapping charge; and (2) his guilty pleas were not

knowing and voluntary because there was no factual basis for either kidnapping or

attempted first-degree murder.

II.   D ISC USSIO N

      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. M cDaniel, 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.

      M r. Porter’s ineffectiveness claim and the challenge to his guilty plea turn

on his assertion that there was an insufficient factual basis for his pleas to

kidnapping and attempted murder. He does not dispute the historical facts

presented by the state at his plea hearing; his argument is that those facts are

insufficient to support charges of kidnapping and attempted first-degree murder




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under state law. 1 He relies on the following statement in State v. Buggs, 547 P.2d

720, 731 (Kan. 1976): “The forced direction of a store clerk to cross the store to

open a cash register is not a kidnapping.”

      But the Kansas Court of Appeals has already rejected this argument. That

court, in affirming the district court’s denial of M r. Porter’s motion to correct

illegal sentence (w hich it construed as a motion to w ithdraw his guilty plea),

recited the facts of M r. Porter’s crimes and concluded: “Clearly [these facts]

constituted a sufficient factual basis for Porter’s guilty plea of kidnapping and

attempted first-degree murder.” State v. Porter, No. 91,386, slip op. at 5 (Kan.

Ct. App. Dec. 10, 2004). (According to M r. Porter’s memorandum in district

court in support of his § 2254 application, the Kansas Supreme Court denied

review.) “W e will not second guess a state court’s application or interpretation of

state law on a petition for habeas unless such application or interpretation violates

federal law.” Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir. 1994). Given the

Kansas Court of Appeals’ ruling that the facts presented by the state constituted a

sufficient factual basis for the charged crimes, M r. Porter’s ineffectiveness claim

must be rejected. Counsel is not ineffective for failing to raise meritless claims.

United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995). Similarly, no



      1
       Thus, M r. Porter’s claim is distinct from a sufficiency-of-the-evidence
challenge in which the defendant contends that no reasonable trier of fact could
find that the facts necessary to constitute the crime charged had been proved
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 315 (1979).

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reasonable jurist could accept M r. Porter’s argument that his plea was not

knowing and voluntary.

III.   C ON CLU SIO N

       W e DENY a COA and DISM ISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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