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

                                                                     December 8, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                     TENTH CIRCUIT                      Clerk of Court



 CU RTIS R. FOOTE,

          Petitioner - A ppellant,
                                                         No. 06-6228
 v.
                                                   (D.C. No. CIV-05-511-L)
                                                         (W .D. Okla.)
 R ON W A R D ,

          Respondent - Appellee.



                        OR DER DENY ING A CERTIFICATE
                              OF APPEALABILITY *


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




      Curtis Randall Foote, 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 the appeal.

      Foote pled no contest to first degree burglary, intimidation of a w itness,

two counts of domestic abuse assault and battery, and threatening an act of




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
violence in Oklahoma state district court. At the sentencing hearing, Valerie

Easley and her two daughters testified that Foote entered their home on July 8,

2002, and demanded that one of the daughters write a letter recanting her

allegation that Foote molested her. They further testified that when the daughter

refused, Foote pushed Easley against a wall, punched her, and threatened all of

them.

        Seeking to withdraw his plea, Foote appealed his convictions to the

Oklahoma Court of Criminal Appeals (“OCCA”). The OCCA denied his motion

to withdraw, reversed his conviction for threatening an act of violence, and

affirmed his other convictions. Additionally, the OCCA remanded to the state

district court with instructions to enter an Order Nunc Pro Tunc to correct an

erroneous notation in Foote’s Judgment and Sentence indicating he was convicted

of a prior felony. Foote filed a § 2254 petition in federal district court, which was

denied. He now seeks a COA from this court to appeal that decision. 1




        1
         Because the district court denied Foote a CO A, he may not appeal the
district court’s decision absent a grant of COA by this court. 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 Foote 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).

                                        -2-
      Foote advances five claims on appeal: (1) He did not orally plead no

contest; (2) He was incorrectly sentenced as an habitual offender; 2 (3) H is

convictions for intimidation of a witness and domestic abuse assault and battery

constitute double jeopardy; (4) The record was insufficient to support his

conviction for intimidation of a witness; and (5) He was denied effective

assistance of trial counsel. Because these issues have already been adjudicated in

state court, Foote must show that the OCCA decision denying him relief was

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or “based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding” in order to prevail. 28 U.S.C. §§ 2254(d)(1)-(2).

      A valid plea must be knowing and voluntary. See Parke v. Raley, 506 U.S.

20, 28 (1992) (citation omitted). Although Foote did not state “I plead no

contest,” the sentencing hearing transcript leaves no doubt that his plea met this

standard. The court asked whether the information contained in his plea of no

contest was true and correct. Foote responded affirmatively. M oreover, the




      2
         Although Foote clearly asserted this claim in the district court, it is
unclear whether he pursues it on appeal. Because we construe pro se pleadings
liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we will consider
it here.

                                         -3-
written Summary of Facts form signed by Foote clearly advised him of his rights.

The OCCA’s determination that Foote’s plea was valid was not unreasonable. 3

      On Foote’s original Judgment and Sentence form, the box adjacent to the

follow ing statement w as checked: “The Court finds that the defendant has ONE

(1) prior felony conviction(s) Cleveland County Case, CF-2002-128 and this

sentence has been enhanced . . . .” The OCCA noted that this description was in

error and remanded with instructions to correct it. However, as the OCCA

pointed out, Foote was not in fact sentenced as a repeat offender. At sentencing,

the trial court stated so explicitly, rendering this claim moot. See Spencer v.

Kemm a, 523 U.S. 1, 7 (1998) (“[T]he plaintiff must have suffered, or be

threatened with, an actual injury traceable to the defendant and likely to be

redressed by a favorable judicial decision.”) (quotation omitted).

      In a habeas petition alleging multiple punishment double jeopardy, we

review only to determine whether the trial court imposed a sentence greater than

the legislature intended. M issouri v. Hunter, 459 U.S. 359, 368 (1983). W e infer

that the legislature intended to punish conduct as distinct offenses when “a

difference exists in the proof of facts required to prove” each offense. Dennis v.



      3
        Foote claims that his failure to orally plead deprived the trial court of
jurisdiction, but cites no authority for this proposition. Accordingly, we do not
consider this a ground for relief. See American Airlines v. Christensen, 967 F.2d
410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to state in one’s brief that
one is appealing an adverse ruling below without advancing reasoned argument as
to the grounds for the appeal.”).

                                         -4-
Poppel, 222 F.3d 1245, 1252 (10th Cir. 2000). The elements of intimidating a

witness are: “First, willfully; Second, causing/threatening/procuring/harassing;

Third, physical/mental harm; Fourth, through force/fear; Fifth, to a person; Sixth,

[w ith the intent to make the person alter his testimony].” O kla. Uniform Jury

Instructions, Crim. 2d, § 3-39. The elements of domestic abuse assault and

battery are: “First, willful; Second, unlawful; Third, attempting or offering to use

force or violence; and Fourth, the use of force or violence; Fifth, against the

person of [Specify Applicable Relationship].” Okla. Uniform Jury Instructions,

Crim. 2d, § 4-26A. Because each offense requires at least one distinct element to

be proved, the OCCA’s rejection of Foote’s double jeopardy claim was not

unreasonable.

      Foote claims that his conviction for intimidating a witness should be

vacated because the record lacked a factual basis to support his plea of no contest.

Generally, the U.S. Constitution does not require a factual basis to support a plea,

making such claims non-cognizable in a habeas petition. Freeman v. Page, 443

F.2d 493, 497 (10th Cir. 1971). However, “pleas coupled with claims of

innocence should not be accepted unless there is a factual basis for the plea.”

North Carolina v. Alford, 400 U.S. 25, 38 n.10 (1970). Foote correctly notes that

his plea did not contain an admission of any facts, but rather his understanding of

the evidence the state would introduce at trial. Nevertheless, Foote does not




                                         -5-
claim innocence anywhere in the plea and accordingly does not receive the added

protection of Alford. The OCCA’s denial of this claim was not unreasonable.

      To succeed on an ineffective assistance of counsel claim, a petitioner must

satisfy two elements:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

Strickland v. W ashington, 466 U.S. 668, 687 (1984). Foote alleges that his

counsel failed to investigate his claim that he and Easley were married. Even if

true, this fact would have no relevance to the charges on which he was convicted.

He also claims that counsel’s failure to raise the issues he presently pursues

constituted ineffective assistance. As noted above, each of these claims is

without merit, therefore counsel’s failure to raise them did not prejudice Foote.

The OCCA’s denial of this claim was also not unreasonable.

      Finally, Foote moves to proceed in forma pauperis. Although his claims

were ultimately without merit, they were not so frivolous or unreasoned as to

imply bad faith. See 28 U.S.C. §§ 1915(a)(1) & (a)(3). Accordingly we GRANT

his motion to proceed in forma pauperis.

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




                                         -6-
his appeal is DISM ISSED.

                            ENTERED FOR THE COURT



                            Carlos F. Lucero
                            Circuit Judge




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