                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 10, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 RYAN MARTIN WONDERLY,

               Petitioner - Appellant,                   No. 10-6282
          v.                                           (W.D. Oklahoma)
 ERIC FRANKLIN, Warden,                          (D.C. No. 5:09-CV-01138-D)

               Respondent - Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Petitioner and appellant, Ryan Martin Wonderly, seeks a certificate of

appealability (“COA”) to enable him to appeal the denial of his 28 U.S.C. § 2254

petition for habeas relief. For the following reasons, we conclude that he does


      *
       This order is not binding precedent except under the doctrines of law of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.
not satisfy the requirements for issuance of a COA, and we therefore decline to

grant one and dismiss this matter.



                                 BACKGROUND

      Mr. Wonderly pled guilty, pursuant to Alford pleas, to four counts of rape

in the first degree by instrumentation and ten counts of indecent or lewd acts with

a child under sixteen years of age. 1 He was sentenced to thirty-five years’

imprisonment on each of the rape charges, to be served concurrently, and twenty

years’ imprisonment on each indecent or lewd acts charges, all of which were

suspended and ordered to run consecutively to the rape sentences.

      Mr. Wonderly subsequently moved to withdraw his pleas, which the court

denied, and the Oklahoma Court of Criminal Appeals (“OCCA”) denied his

petition for a writ of certiorari. State v. Wonderly, No. CF-2004-595 (Aug. 31,

2005); No. C-2005-834 (June 8, 2007). Mr. Wonderly then applied to the trial

court for post-conviction relief, which was denied. Mr. Wonderly appealed the

denial to the OCCA, which affirmed the trial court’s decision.



      1
        An Alford plea, or a plea of nolo contendere, is “a plea by which a
defendant does not expressly admit his guilt, but nonetheless waives his right to a
trial and authorizes the court for purposes of the case to treat him as if he were
guilty.” North Carolina v. Alford, 400 U.S. 25, 35 (1970); see also United States
v. Buonocore, 416 F.3d 1124, 1128 n.2 (10 th Cir. 2005) (“An ‘Alford’ plea, named
after the Supreme Court’s decision in North Carolina v. Alford, is a plea
denominated as a guilty plea but accompanied by protestations of innocence.”).

                                        -2-
      Mr. Wonderly then filed the instant petition. He argued: (1) the trial judge

“unconstitutionally coerced him into entering his pleas” in violation of his due

process rights; (2) trial counsel was ineffective in failing to seek the trial judge’s

recusal and in failing to argue in his motion to withdraw his guilty pleas that his

counsel had advised him incorrectly with respect to the 85% rule; (3) appellate

counsel was ineffective for failing to “develop and present the full evidence

showing the coercive statements of [the trial judge]” and for failing “to raise the

issue that [counsel’s] bad advice regarding the applicability of the 85% rule

rendered his guilty pleas involuntary;” and (4) he is actually innocent of the

crimes of conviction. See Petition at 14, 16-20, 29-30, R. Vol. 1 at 22, 24-28, 37-

38. 2 Additionally, relying on dissenting opinions from four other circuits, Mr.

Wonderly argued that the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), which provides a deferential review by federal courts of state court

decisions, is unconstitutional as a violation of the doctrine of separation of

powers between the legislative and judicial branches of government.

      The district court referred the matter to a magistrate judge who, in a thirty-

page Report and Recommendation, recommended that the petition be denied.

Mr. Wonderly objected to the Report and Recommendation. The district court

accordingly reviewed the case de novo. The district court noted that the

      2
         The 85% rule provides that, for certain crimes in Oklahoma, a prisoner
must serve 85% of his sentence before he is eligible for parole. See Okla. Stat.
tit. 21, § 12.1; 13.1. This rule became effective on March 1, 2000.

                                           -3-
magistrate judge carefully and thoroughly examined each of Mr. Wonderly’s

claims, and the court examined Mr. Wonderly’s objections as well. The court

adopted the Report and Recommendation in whole, and denied Mr. Wonderly’s

request for habeas relief. The district court also denied a COA. This request for a

COA followed.



                                   DISCUSSION

      To obtain a COA, Mr. Wonderly must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). A prisoner may make a “substantial showing of the

denial of a constitutional right” by “showing that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.”

Id. at 484 (further quotation omitted). Thus, when the district court has ruled on

the merits of the petitioner’s claims, he must show that “reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Id. Where the district court ruled on procedural grounds, a COA may be

granted when the petitioner shows that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

. . . whether the district court was correct in its procedural ruling.” Id.




                                          -4-
      The district court began its analysis by setting out the appropriate standard

for review of state court decisions under AEDPA. 3 Thus, under AEDPA, when a

petitioner has had a claim adjudicated in state court he may obtain federal review

of the claim only if he can show the state decision was “contrary to, or involved

an unreasonable application of clearly established Federal law, as determined by

the Supreme Court” or was “based on an unreasonable determination of the facts

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

§ 2254(d); Williams v. Taylor, 529 U.S. 362, 402; Bunton v. Atherton, 613 F.3d

973, 977-78 (10th Cir. 2010), cert. denied, 131 S. Ct. 1783 (2011). When the

state court applies the correct law to deny relief, a federal habeas court may only

consider whether the state court applied the federal law in an objectively

reasonable manner. Bunton, 613 F.3d at 978-79. Finally, a “determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

      The district court began by rejecting Mr. Wonderly’s argument that

AEDPA is unconstitutional. As the district court observed, our court routinely

applies AEDPA, and we have never held it to be unconstitutional. The vast

majority of other federal courts are in agreement with us. Mr. Wonderly has not

      3
        We refer to the “district court” rather than the “magistrate judge” because
the district court adopted the Report and Recommendation in toto, making it, in
effect, its own ruling.

                                         -5-
made a substantial showing of the denial of any constitutional right with respect

to that issue.

       We find the same with respect to all the other issues raised. The district

court carefully examined each claim in light of the AEDPA requirements,

rendering a thorough and thoughtful thirty-page decision. No jurist of reason

would question the correctness of the district court’s decision. 4 Accordingly, we

deny a COA and dismiss this matter.



                                  CONCLUSION

       For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




       4
        With respect to the ineffective assistance of counsel claims, we accord the
state court’s decision double deference. See Knowles v. Mirzayance, 129 S. Ct.
1411, 1420 (2009); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).

                                          -6-
