                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 22 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


KENNETH G. LEVY,

       Petitioner-Appellant,
                                                       No. 04-3343
v.
                                                    (District of Kansas)
                                                (D.C. No. 02-CV-3232-SAC)
CHARLES SIMMONS; ATTORNEY
GENERAL OF KANSAS,

       Respondents-Appellees.




                                     ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      This matter is before the court on Kenneth G. Levy’s pro se request for a

certificate of appealability (“COA”). Levy seeks a COA so that he can appeal the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court,” unless the petitioner first obtains a COA).

Because Levy has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.

      In 1998, the state of Kansas charged Levy with a single count of first-

degree murder in the 1976 beating death of Frankie Tiller. After the case had

proceeded to trial, and several prosecution witnesses had testified, the parties

entered into a plea agreement. Under the plea agreement, Levy agreed to plead

guilty to a reduced charge of voluntary manslaughter. After entering a guilty

plea, but before being sentenced, Levy filed a motion to withdraw his guilty plea.

In his motion, Levy asserted that he had only agreed to plead guilty because his

attorney had informed him that if the case proceeded to trial, the jury would be

limited to considering a first degree murder charge. In other words, according to

Levy, the jury would be precluded from considering lesser included offenses and

would, instead, be required to limit its deliberations to the first degree murder

charge. The state court appointed alternate counsel for Levy and held an

evidentiary hearing. At the conclusion of the hearing, the state court found that

Levy had never been so advised and that Levy’s contrary allegations were not

credible. The state court denied Levy’s motion to withdraw his guilty plea and

sentenced him to a term of imprisonment of five to ten years. Levy’s state motion

for post-conviction relief was summarily denied by the state trial court, the




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Kansas Court of Appeals affirmed the denial of post-conviction relief, and the

Kansas Supreme Court denied review.

      In the instant § 2254 habeas petition, Levy raised the following three

grounds for relief: (1) the state trial court erred in refusing to suppress Levy’s

statements to an agent of the Kansas Bureau of Investigations; (2) the state court

judge, prosecutor, and defense counsel conspired to allow Levy’s former

girlfriend to testify and to force Levy to accept a plea agreement; and (3) defense

counsel was generally ineffective in protecting Levy’s constitutional rights. In a

thorough and well-reasoned order, the district court concluded that Levy was not

entitled to habeas relief.

      As to Levy’s claims relating to constitutional errors occurring prior to the

entry of his guilty plea—admission of his confession, admission of the testimony

of the Kansas Bureau of Investigation agent, and admission of the testimony of

his former girlfriend—the district court concluded those claims were barred to the

extent the guilty plea was knowingly and voluntarily entered. Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a break in the

chain of events which has preceded it in the criminal process. When a criminal

defendant has solemnly admitted in open court that he is in fact guilty . . . , he

may not thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the guilty plea.”); id.


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(holding that once a defendant has pleaded guilty, the defendant can only attack

the voluntary and intelligent nature of the plea). A review of the record, with

particular note of the state trial court’s findings of historical fact, 28 U.S.C. §

2253(e)(1), demonstrated that Levy knowingly and voluntarily accepted the guilty

plea in response to very damaging testimony presented by the prosecution during

its case-in-chief. In particular, the transcript of the hearing on Levy’s request to

withdraw his guilty plea demonstrates that both Levy’s trial counsel and Levy’s

family members felt that the best possible result after the prosecution presented

its evidence was a second degree murder conviction. Accordingly, the record

revealed that Levy’s decision to plead guilty to voluntary manslaughter, thereby

waiving any potential statute of limitations defense, was a voluntary and

intelligent choice. Thus, not only did the record belie Levy’s claim of ineffective

assistance of counsel, it demonstrated that his other claims of constitutional error

were foreclosed by his guilty plea.

      To be entitled to a COA, Levy must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he 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 v. Cockrell, 537 U.S. 322, 336 (2003) (quotations


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omitted). In evaluating whether Levy has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Levy need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Levy’s application for a COA and appellate

filings, the district court’s order, and the entire record before this court pursuant

to the framework set out by the Supreme Court in Miller-El, this court concludes

that Levy is not entitled to a COA. The district court’s resolution of Levy’s

§ 2254 petition is not reasonably subject to debate and the issues he seeks to raise

on appeal are not adequate to deserve further proceedings. Accordingly, this

court DENIES Levy’s request for a COA and DISMISSES this appeal.

                                                ENTERED FOR THE COURT



                                                Michael R. Murphy
                                                Circuit Judge




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