                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         May 18, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                     Elisabeth A. Shumaker
                                 TENTH CIRCUIT                           Clerk of Court



 W ILLIE C. HO LT,

       Petitioner-A ppellant,
 v.                                                      No. 05-5207
                                               (D.C. No. 03-CV-783-JOE-FHM )
 RON W ARD, Director, Oklahoma                           (N.D. Okla.)
 Department of Corrections,

       Respondent-Appellee.



                       OR DER DENYING CERTIFICATE
                            OF APPEALABILITY


Before KELLY, M cKA Y , and LUCERO, Circuit Judges.


      W illie Holt, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. For substantially the same reasons set forth by the district

court, we D EN Y a COA and DISM ISS.

      Holt was charged with trafficking in illegal drugs after former conviction of

a felony and failure to have a drug stamp after former conviction of a felony in an

information stating that he possessed 15 grams of crack cocaine. Possession of

more than five grams of crack cocaine constitutes trafficking under Oklahoma

law. Okla. stat. tit. 63, § 2-415(c)(7). Holt pled guilty and, as a part of that plea,
admitted before the court that he possessed 14.42 grams of crack cocaine. The

state trial court sentenced Holt to 30 years’ imprisonment and assessed a fine of

$25,000. W hen it imposed the sentence, the court advised Holt of his right to

appeal. Holt did not withdraw his guilty plea and did not otherwise perfect a

petition for certiorari to the Oklahoma Court of Criminal Appeals (“OCCA”)

within the ten day limitations period.

           After his time to appeal had expired, Holt filed a petition for post

conviction relief in Oklahoma state court. The state district court dismissed his

petition as meritless and the OCCA affirmed.

       Holt then filed for federal habeas relief. Both his habeas petition and his

subsequent application for a COA were denied by the district court. Holt now

seeks a COA from this court and presents the same arguments he presented to the

district court. 1



       1
         Holt’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A ). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires H olt to show “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) (quotations omitted). Because the district court denied Holt a COA,
he may not appeal the district court’s decision absent a grant of COA by this
court.

                                            -2-
      A habeas petitioner is not entitled to relief if his claim has been adjudicated

on the merits by a state court unless that state court’s 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 light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). W e review de novo the district

court’s denial of Logan’s habeas petition. Beem v. M cKune, 317 F.3d 1175, 1179

(10th Cir. 2003) (en banc).

      Holt’s habeas petition raises two ineffective assistance of counsel claims. 2

All ineffective assistance of counsel claims must meet the test announced in

Strickland v. W ashington, 466 U.S. 668, 687-91 (1984), which requires habeas

petitioners to show constitutionally deficient performance by demonstrating that

counsel’s conduct was objectively unreasonable and resulted in prejudice by

demonstrating a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” N either of H olt’s

claims meets this exacting standard. First, he argues that he was denied effective

assistance of counsel because his trial counsel failed to advise him of possible

grounds for appeal following his guilty plea. In Laycock v. New M exico, 880



      2
         The district court held that his petition was not procedurally barred
because O CCA did not explain whether it was affirming the state trial court’s
determination based on the merits or because of a procedural bar. W e agree with
this determination.

                                         -3-
F.2d 1184, 1187-88 (10th Cir. 1989), we held that attorneys have no absolute duty

to advise their clients of their limited right to appeal following a gulity plea.

“Failure to notify the defendant of this limited right is not itself ineffective

assistence.” Id. Counsel only has a duty to notify a defendant about the right to

appeal if (1) the defendant inquires about an appeal, or (2) there was a

constitutional error that might have resulted in a court setting aside his guilty

plea. Id. The duty to advise a defendant about a constitutional error only arises

when “counsel either knows or should have learned of his client's claim or of the

relevant facts giving rise to that claim.” Haridman v. Reynolds, 971 F.2d 500,

506 (10th Cir. 1992) (quotations and citations omitted). Holt does not claim that

he inquired about an appeal, nor does he point to a constitutional error, or any

facts relevant to such an error, that his counsel knew about or should have learned

about. As such, his claim fails.

      Holt also argues that his attorney provided ineffective assistance by

advising him that the minimum amount of crack cocaine necessary to sustain a

conviction for trafficking w as 15 grams rather the correct amount, five grams. H e

claims that he would have otherwise brought his claim to trial. This argument

makes no sense. Holt pled guilty to a crime which he allegedly thought consisted

of possession of 15 grams; it is illogical that he would have contested a charge

that he possessed less than 15 grams. Holt cannot establish prejudice and hence

there was no ineffective assistance of counsel.

                                          -4-
      Finally, Holt argues that his guilty plea w as invalid. He argues that there

was not an adequate factual basis for his plea, that his plea was not knowingly,

voluntarily, and intelligently entered because he was not advised that possession

of 5 grams of crack constituted trafficking, and that he was not advised of all of

the elem ents of trafficking. None of these arguments has any merit. The state

courts found that he knowingly, voluntarily, and intelligently pled guilty and that

there was an adequate basis for that plea. Factual findings by a state court are

entitled to a presumption of correctness that may be rebutted only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). H olt provides no such evidence.

His claim that his plea was not made knowingly because he did not know that 5

grams of crack constituted trafficking is, as we noted above, illogical and does

not establish a lack of knowledge for the plea.

      For the reasons set forth above, Holt’s request for a COA is DENIED and

the appeal is DISM ISSED.


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                         -5-
