                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  June 28, 2012
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 SHAWN ATKINSON,

             Petitioner-Appellant,
                                                       No. 12-3039
 v.                                            (D.C. No. 5:10-CV-0317-SAC)
                                                        (D. of Kan.)
 DEREK SCHMIDT, Attorney General
 of State of Kansas,

             Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Shawn Atkinson, a Kansas state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district court’s dismissal of his

28 U.S.C. § 2254 petition. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), and we construe Atkinson’s filing liberally because he is proceeding pro

se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).


      *
         This order is not binding precedent except under the doctrines of law of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 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Nonetheless, no reasonable jurist could conclude the district court’s

dismissal was incorrect. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Accordingly, we DENY the application for a COA and DISMISS the appeal.

                                      I. Facts

      Atkinson was convicted of one count of rape in Kansas state court and

sentenced to 155 months’ imprisonment. The Kansas Court of Appeals affirmed

the conviction and sentence. State v. Atkinson, 92 P.3d 1147 (Kan. Ct. App.

2004) (unpublished table decision) (Atkinson I). The state district court denied

Atkinson’s motion for post-conviction relief pursuant to K.S.A. § 60-1507, and

the Kansas Court of Appeals affirmed the denial. Atkinson v. State, 195 P.3d 291

(Kan. Ct. App. 2008) (unpublished table decision) (Atkinson II). Atkinson then

sought federal habeas relief on the basis of ineffective assistance of counsel in his

state criminal case.

      Atkinson argued that his counsel was ineffective for two reasons, (1)

failing to advise him of the potential sentence for a rape conviction, causing him

to reject a plea offer; and (2) failing to object to the admission of a rape kit as

evidence in his criminal trial. The Kansas Court of Appeals previously reviewed

both claims on the merits, and the district court below denied Atkinson’s motion

for relief. Atkinson’s petition for a COA raises only the first issue, whether

counsel provided ineffective assistance during a plea negotiation.



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                                 II. Discussion

      The Antiterrorism and Effective Death Penalty Act (AEDPA) 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). To receive a COA, the applicant must

demonstrate a “substantial showing of the denial of a constitutional right.” Id. at

§ 2253(c)(2). When the district court denies a habeas petition on procedural

grounds, a COA should issue only when the prisoner shows 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, 529 U.S. at 484.

      When a state court has adjudicated a claim on the merits, as here, a federal

court may grant habeas relief only if the state court’s adjudication “(1) resulted in

a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,” or (2)

“resulted in a decision that was based on an unreasonable determination of facts

in light of the evidence presented in the state court proceeding.” 28 U.S.C.

§ 2254(d); Williams v. Taylor, 529 U.S. 362, 404–05 (2000). A state court’s

factual findings are presumed to be correct, absent clear and convincing evidence

to the contrary. 28 U.S.C. § 2254(e)(1).

      Atkinson claims that his retained defense counsel was ineffective for failing

to advise him of the potential sentence for a rape conviction, and encouraging him

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to reject the state’s offer, which would have reduced the charge to a Class B

misdemeanor for battery and a one-year term of unsupervised probation, in

exchange for a guilty plea.

      The Sixth Amendment guarantees the right of a state criminal defendant to

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86

(1984). To demonstrate a constitutional violation, the petitioner must show that

counsel’s performance was deficient, and that the defendant was prejudiced by the

deficient performance. Id. at 687. This two-pronged approach also applies to the

plea bargaining process. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Williams v.

Jones, 571 F.3d 1086, 1091 (10th Cir. 2009). But “[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed,” and counsel’s performance does not need to be

assessed. Strickland, 466 U.S. at 697.

      The record confirms that Atkinson was made aware of the state’s offer

immediately prior to trial, and had time to discuss it with counsel and with his

family. Atkinson claims trial counsel suggested he reject the offer—he testified

at an evidentiary hearing that he asked counsel: “Man, take a plea for something I

didn’t do, what would you do? . . . and he [said] . . . stand for what you believe

in. If you’re innocent, stand for your innocence.” R., Vol. III, Case No. 04-CV-

3478, Tr. of Hearing, 108. At the hearing, Atkinson’s counsel recalled that he

advised him to “not plea[d] to something that he didn’t do.” Id. at 70. When

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questioned, Atkinson admitted that he understood rape to be a “serious matter,”

despite not knowing the exact sentencing guidelines, and that even if he had

known that he was facing 155 months’ imprisonment, he was unable to say, with

any certainty, whether he would have accepted any plea, much less the particular

one offered. Id. at 130-31.

      Notably, as detailed by the state court, Atkinson maintained his innocence

before, during, and after the trial, steadfastly maintaining that the events in this

case were consensual rather than rape. Atkinson II, at *4-5. 1 On these grounds,

the state court held: “Atkinson repeatedly and firmly claimed his innocence in

this matter and desired a jury trial to obtain an acquittal . . . . Under these

circumstances, Atkinson has not shown a reasonable probability that, but for his

attorney’s failure to inform him of the potential sentence for rape, he would have

accepted the State’s plea offer . . . . [therefore, the] conclusion of law that

Atkinson failed to establish prejudice in this regard was supported by substantial

evidence.” Id. at *7. Since there was no prejudice, the state court stated it was

unnecessary to consider counsel’s performance. The district court below denied

relief on the same grounds, finding that the state court adequately identified the

correct legal standard and applied it reasonably, and we agree.




      1
        In his brief to this court, Atkinson continues to describe his conviction as
obtained “despite his steadfast assertions of innocence.” Aplt. Br. at 1.

                                          -5-
      To satisfy the Strickland prejudice prong, “there must be a reasonable

probability that but for incompetent counsel a defendant would have accepted the

plea offer and pleaded guilty.” United States v. Carter, 130 F.3d 1432, 1442

(10th Cir. 1997) (citing Hill, 474 U.S. at 59). The Supreme Court recently

reexamined the scope of effective assistance of counsel in a pair of cases, Frye v.

Missouri, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).

In Frye, the Court held that defense counsel has an affirmative duty to

communicate favorable plea offers to a defendant. 132 S. Ct. at 1408. There is

no question that Atkinson’s counsel communicated the plea offer prior to trial and

that Atkinson had a chance to consider it prior to rejecting the offer. More

relevant here, in Lafler, the Court held that to satisfy the Strickland prejudice

prong, a defendant needs to show that “but for the ineffective advice of counsel

there is a reasonable probability that the plea offer would have been presented to

the court (i.e., that the defendant would have accepted the plea and the

prosecution would not have withdrawn it in light of intervening circumstances),

that the court would have accepted its terms, and that the conviction or sentence,

or both, under the offer’s terms would have been less severe than under the

judgment and sentence that in fact were imposed.” 132 S. Ct. at 1385.

      As the district court found, Atkinson’s petition fails at the first step. In

Lafler, in a communication to the court, the defendant “admitted guilt and

expressed a willingness to accept the [plea] offer.” Id. at 1383. Here, Atkinson

                                          -6-
acknowledged his sexual encounter with the victim, but contended before, during,

and after trial that it was consensual. In essence, the case turned on the

credibility of the victim against Atkinson, and the jury found the victim to be

more credible. As a result, this case is easily distinguishable from Lafler on the

grounds that Atkinson was unable to meet the “but for” requirement that he would

have accepted the plea, and so the state court’s determination that he is unable to

demonstrate prejudice under Strickland is not objectively unreasonable. See also

Carter, 130 F.3d at 1437-38 (denying relief when counsel advises defendant to

accept a plea offer and defendant declines to do so); Reynolds v. Hannigan, No.

95-3559-DES, 1999 WL 33177300, at *4 (D. Kan. Mar. 22, 1999) (denying

habeas relief when record is clear that defendant would have proceeded to trial

after maintaining his innocence, despite a very favorable plea offer).

      AEDPA requires that we defer to the state court’s application of Strickland

unless no reasonable jurist could agree with that result. We cannot do so based

on our own evaluation of the record and applicable law. Accordingly, Atkinson is

not entitled to federal habeas relief.




                                         -7-
                            III. Conclusion

     Based on the foregoing analysis, we DENY Atkinson’s request for a COA

and DISMISS his appeal.

                                              Entered for the Court,

                                              Timothy M. Tymkovich
                                              Circuit Judge




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