                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 25, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


 TONY ALLEN CASTRO,

              Petitioner-Appellant,

 v.                                                    No. 08-6226
                                               (D.C. No. 5:07-CV-00315-HE)
 STATE OF OKLAHOMA;                                    (W.D. Okla.)
 ERIC FRANKLIN, Warden,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.



      Tony Allen Castro, an Oklahoma state prisoner proceeding pro se, requests

a certificate of appealability (COA) to appeal the district court’s order denying

his habeas petition filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring COA to appeal order denying habeas petition). The

district court did not issue a COA. Mr. Castro’s notice of appeal is construed as a

request for a COA from this court. See Fed. R. App. P. 22(b)(2). We deny

issuance of a COA and dismiss the appeal.
                                   Background

      Mr. Castro entered guilty pleas to the charges of second degree burglary of

an automobile and escape from arrest or detention. Pursuant to the plea

agreement, he was sentenced to two concurrent 20-year sentences. He did not

seek to withdraw his guilty pleas. He filed two applications for post-conviction

relief with the state district court, which were denied. The Oklahoma Court of

Criminal Appeals (OCCA) also denied relief on the basis of waiver, holding that

claims that could have and should have been brought in a direct criminal appeal

would not be considered in post-conviction proceedings. R. at 19, 40.

      Mr. Castro then filed the underlying habeas petition, which was referred to

a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). In a thorough and

comprehensive report and recommendation, the magistrate judge recommended

that the habeas petition be denied without an evidentiary hearing. The district

court considered Mr. Castro’s objections, adopted the magistrate judge’s

recommendation, and denied the petition.

      Mr. Castro argues that his guilty pleas were involuntary because his

attorney coerced him to plead guilty and the trial court failed to develop a factual

basis for his pleas. He further asserts that he was denied the effective assistance

of counsel when entering his guilty pleas. He also claims that the evidence was

insufficient to support his guilt on either felony charge and therefore he should

have been charged with misdemeanors instead of felonies. In addition, he

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complains that he was denied the effective assistance of counsel in this appeal.

He has waived on appeal the remaining arguments he made in the district court,

including his request for an evidentiary hearing in federal court, his claims of

sentencing errors, and his challenges to the state post-conviction proceedings,

because he did not present them in his appellate brief. See Ward v. Williams,

240 F.3d 1238, 1241 n.6 (10th Cir. 2001) (issue not presented in habeas

appellant’s opening brief deemed waived).

                                      Analysis

      Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make

“a substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).

             Where a district court has rejected the constitutional claims on
      the merits, . . . [t]he petitioner must demonstrate that reasonable
      jurists would find the district court’s assessment of the constitutional
      claims debatable or wrong. . . . When the district court denies a
      habeas petition on procedural grounds without reaching the
      prisoner’s underlying constitutional claim, a COA should issue when
      the prisoner shows, at least, that jurists of reason would find it
      debatable whether the petition states a valid claim of the denial of a
      constitutional right and that jurists of reason would find it debatable
      whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      The magistrate judge carefully addressed and analyzed each of Mr. Castro’s

claims in a 23-page report and recommendation, which the district court adopted

in its entirety. We find nothing debatable or questionable in the magistrate


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judge’s determinations. No jurist of reason would question the correctness of the

district court’s ruling adopting the magistrate judge’s recommendation.

Accordingly, we deny a COA.

      Mr. Castro also claims that he was denied the effective assistance of

counsel in this appeal. Although his attorney filed the notice of appeal and

preliminary documents, the appeal was dismissed on March 31, 2009, based on

the attorney’s failure to prosecute. In November 2010, the appeal was reinstated

on Mr. Castro’s request and he filed a pro se brief, which this court has

considered. He contends that he has been prejudiced by his attorney’s

nonfeasance. To the extent he argues that his attorney’s withdrawal from the

appeal denied him a constitutional right, “[t]here is no constitutional right to

counsel beyond the direct appeal of a criminal conviction.” Coronado v. Ward,

517 F.3d 1212, 1218 (10th Cir. 2008). Accordingly, Mr. Castro has not stated a

claim for denial of the effective assistance of counsel in this appeal.

                                     Conclusion

      We DENY the application for a certificate of appealability and DISMISS

the appeal.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge

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