                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                   TENTH CIRCUIT                                July 23, 2012

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
LENNIE D. MATHIS,

              Petitioner - Appellant,
v.                                                           No. 12-6082
                                                      (D.C. No. 5:11-CV-00694-C)
JUSTIN JONES, Director,                                      (W.D. Okla.)

              Respondent - Appellee.




            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Lennie D. Mathis seeks to appeal from the district court’s denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. We deny his request for a Certificate of

Appealability (COA) and dismiss.




       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
                  BACKGROUND AND PROCEDURAL HISTORY

       After a jury trial in Oklahoma state court, Mathis was convicted of first-degree

murder, assault with a dangerous weapon, and being a felon in possession of a firearm.

       Prior to trial, the prosecution decided to seek the death penalty on the murder

charge and filed a bill of particulars to enable it to do so. Following his conviction,

however, Mathis reached an agreement with the prosecution under which he would

receive a life sentence without the possibility of parole in exchange for an appeal waiver.

In accord with this agreement, Mathis was sentenced to consecutive terms of life

imprisonment without parole on the murder count, twenty years of imprisonment on the

assault charge, and seven years on the felon-in-possession charge.

       Mathis later filed a pro se motion in the state district court requesting to withdraw

the “plea/sentence agreement.” (Appellant’s App’x 44.) His motion cited the “stress”

and “duress” of the threat of the death penalty in claiming the agreement was coerced and

involuntary. (Appellant’s App’x 44.) The court held an evidentiary hearing on the

motion. One of Mathis’s defense counsel testified to having discussed the appeal waiver

with Mathis, who seemed to understand what was involved and agreed to the waiver.

The court denied the motion.

       Nevertheless, the court appointed counsel to aid Mathis in pursuing an appeal. In

his appeal briefs, he argued his “guilty plea” was not knowing and voluntary. In an

unpublished order, the Oklahoma Court of Criminal Appeals rejected the argument and

dismissed the appeal. It concluded the agreement was not a plea agreement; Mathis had

pled not guilty and was tried by a jury on the issue of guilt. Rather, the court reasoned,

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“[w]hat we have here is simply a negotiated agreement as to sentencing following a jury

trial.” (Appellant’s App’x 46.)

       The state district court later denied Mathis’s pro se application for post-conviction

relief, and the Oklahoma Court of Criminal Appeals affirmed.

       Mathis then brought this federal habeas petition. Calling his agreement with the

prosecution a “guilty plea” to the bill of particulars, he claims the plea was

constitutionally invalid because it was not made (1) voluntarily and intelligently and (2)

in a manner consistent with state-law procedures for accepting guilty pleas. He also

claims he was denied effective assistance of counsel in connection with the proceedings

to withdraw his “guilty plea.” The district court referred the case to a magistrate judge,

see 28 U.S.C. § 636(b)(1)(B), who recommended denying the petition. Although the

magistrate refused to characterize the sentencing agreement as a plea, he concluded the

agreement was constitutionally valid only if Mathis knowingly and voluntarily agreed to

it. Following a detailed recitation of the record evidence, the magistrate concluded

“[n]othing in the record . . . rebuts the Petitioner’s express acknowledgements that he had

read the sentencing agreement and appeal waiver, discussed it, understood it, and

voluntarily agreed to it.” (Appellant’s App’x 53.) With respect to the effectiveness of

Mathis’s counsel, the magistrate concluded Mathis had failed to exhaust the claim in the

Oklahoma courts.

       Although Mathis objected to the magistrate’s report and recommendation, the

objection focused entirely on the magistrate’s resistance to characterizing the agreement




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as a plea agreement. It did not explain why either of the magistrate’s conclusions was

incorrect. The district court adopted the magistrate’s report and recommendations in full.

                                       DISCUSSION

       A certificate of appealability (COA) is a jurisdictional prerequisite to our review

of a petition for a writ of habeas corpus. 28 U.S.C. § 2253(a), (c)(2); Miller–El v.

Cockrell, 537 U.S. 322, 336 (2003). Although Mathis did not request a COA in either the

district court or this court, we construe his notice of appeal and opening brief as a request

for a COA. Fed. R. App. P. 22(b)(2).

       We issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This means the applicant must

demonstrate that an issue is debatable among reasonable jurists or “deserve[s]

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation omitted). In evaluating whether Mathis has satisfied this burden, we undertake

“a preliminary, though not definitive, consideration of the [legal] framework” applicable

to each of his claims. Miller–El, 537 U.S. at 338.

A.     Validity of Agreement

       Because, in Mathis’s view, his agreement with the prosecutor was a plea

agreement, he believes it was valid only if his agreement was voluntary and intelligent.

Since, as the Oklahoma Court of Criminal Appeals pointed out, the agreement followed

Mathis’s not-guilty plea and a jury trial culminating in a verdict of guilt, we are not




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confident the plea agreement cases Mathis cites are fully applicable here.1 Nevertheless,

we are confident the Constitution requires an appeal waiver to be made voluntarily and

intelligently. See United States v. Ruiz, 536 U.S. 622, 629 (2002) (“[T]he Constitution

insists, among other things, that the defendant enter a guilty plea that is ‘voluntary’ and

that the defendant must make related waivers ‘knowingly, intelligently, and with

sufficient awareness of the relevant circumstances and likely consequence’”) (citation

and quotation marks omitted); cf. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (en banc) (requiring an appellate waiver in the federal criminal system to be made

knowingly and voluntarily).

       Yet Mathis’s waiver was voluntary and knowing. Strong evidence in the record

shows he knew the circumstances and likely consequences of the agreement and

voluntarily entered into it. The magistrate thoroughly discussed this evidence in his

report. Based on this record, the magistrate concluded the OCCA’s finding that the

waiver was valid was not an “‘unreasonable application of’ clearly established Supreme

[C]ourt precedent.” (Appellant’s App’x 53.) See 28 U.S.C. § 2254(d). Mathis makes no

effort, as is his burden, to demonstrate why the magistrate’s analysis of the record

evidence was incorrect. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995)

(noting appellant “bears the burden of demonstrating the alleged error”). On this record

there could be no debate among reasonable jurists that the magistrate correctly concluded

the sentencing agreement met constitutional standards. See Slack, 529 U.S. at 484.

       1
       Mathis supports his view by explaining that the trial judge characterized the
agreement as a plea of guilty to the bill of particulars.


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          Moreover, even if Oklahoma failed to follow its own procedures for ensuring

appellate waivers are voluntary and intelligent,2 the magistrate correctly concluded the

federal courts cannot remedy these defects on habeas review. See Wilson v. Corcoran,

131 S. Ct. 13, 16 (2010) (“[F]ederal habeas corpus relief does not lie for errors of state

law.”).

B.        Ineffective Assistance of Counsel

          Mathis also argues he was denied the effective assistance of counsel because

counsel (1) “fail[ed] to follow statutory law for pleading a defendant guilty”; (Appellant

Br. 15) and (2) should have prepared a motion to withdraw his plea. However, because

Mathis failed to raise any of these arguments in his objection to the magistrate’s report

and recommendation, he has waived them. Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991) (adopting waiver rule); see Hall v. Jordan, 143 F. App’x 74, 75-76 (10th

Cir. 2005) (noting waiver rule forecloses consideration of arguments not presented in the

objection to a magistrate’s report and recommendation).3

          No jurist could reasonably debate the correctness of the district court’s decision

with respect to the issue presented—the voluntariness of his appeal waiver. We DENY




          2
         Oklahoma’s procedures seek to ensure a defendant’s guilty plea is “voluntarily
and intelligently entered” as required under King v. State, 553 P.2d 529 (Okla. Crim.
App. 1976).
          3
        Unpublished opinions are not binding precedent. 10th Cir. R.App. P. 32.1(A).
We cite unpublished opinions as we would an opinion from another circuit, persuasive
because of its reasoned analysis.


                                               -6-
his request for a COA and DISMISS this matter.




                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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