                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                              FEB 28 2005
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 LUIS RAUL ARREOLA LOPEZ,

              Petitioner - Appellant,                    No. 04-1353
       v.                                        (D.C. No. 03-D-111 (CBS))
 JOE ORTIZ (Department of                               (D. Colorado)
 Corrections); JIM KEITH (Bent
 County Correctional Facility);
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


                                        ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Applicant Luis Raul Arreola Lopez pleaded guilty to one count of second-

degree kidnapping in Colorado state court. He then filed a postconviction motion

in Colorado state district court alleging an involuntary plea of guilty and

ineffective assistance of counsel. After an evidentiary hearing, the court denied

relief. The Colorado Court of Appeals affirmed. Applicant then filed an

application under 28 U.S.C. § 2254 in federal district court, contending that his

counsel was ineffective and that he did not enter his guilty plea knowingly and

voluntarily because he did not understand the sentence he would receive in
exchange for his plea, he did not understand his interpreter, and his counsel did

not adequately advise him as to the consequences of his plea. The district court

denied relief and denied a certificate of appealability (COA). See 28 U.S.C.

§ 2253(c)(1)(A) (providing that a § 2254 applicant may not appeal in the absence

of a COA). Applicant renewed his pro se COA application to this court, see id. at

§ 2253(c)(1), and filed a motion to proceed in forma pauperis (IFP). We deny the

application for a COA and the IFP motion.

I. BACKGROUND

      Applicant, a Mexican national, was originally charged with second-degree

kidnapping, menacing, and third-degree assault. On the day set for trial, the

parties indicated that they had reached an agreement. The Applicant would plead

guilty to the kidnapping charge in exchange for dismissal of the other charges.

Counsel, however, discovered that they disagreed about the minimum mandatory

sentence on the kidnapping charge. The prosecutor said that the minimum

sentence would be ten years, but defense counsel thought it would be six.

      Because defense counsel had previously advised Applicant of a six-year

minimum sentence, he asked for an opportunity to explain the matter to Applicant.

The court recommended that they promptly proceed to trial instead, but both

attorneys expressed the need for a delay of as much as a day to advise witnesses

and obtain clothing for Applicant. During the recess the parties supplemented the


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original plea agreement by agreeing to restrict the sentencing range to between

eight and twelve years. The court then conducted a hearing on the plea in open

court. Through an interpreter the court advised Applicant of his rights and

questioned him regarding whether he understood the plea agreement and the

sentencing range. Applicant responded affirmatively. Applicant also said that he

had spoken with his attorney about the agreement, and that his attorney was “a

good lawyer.” R. Vol. IV at 11. He expressed his desire to enter the plea. The

court accepted the plea and sentenced Applicant to ten years’ imprisonment and

five years’ parole.

II. DISCUSSION

      To comport with due process, a defendant must enter a guilty plea

knowingly, voluntarily, and with “a full understanding of what the plea connotes

and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).

Accord Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996). The

Colorado Court of Appeals rejected Applicant’s claim that his plea was not

knowing and voluntary. The court wrote:

      Although at one point in the providency hearing defense counsel
      expressed some confusion regarding the minimum sentence in the
      presumptive range, that confusion is irrelevant because the trial court
      clearly advised defendant of the parties’ stipulation for an eight- to
      twelve-year sentence, and defendant indicated that he understood. . . .

            The record also supports the trial court’s findings that
      defendant was fully advised and that he was able to understand all

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       aspects of the providency hearing. As the trial court noted when
       finding that defendant would have alerted the court if he had actually
       had difficulty understanding the interpreter, the transcript of the
       providency hearing shows that defendant knew how to ask the court a
       question. The transcript also indicates that the court provided
       additional explanation when defendant stated that he was not paying
       attention and again when defendant stated that he did not understand
       one of the court’s questions.

R. Vol. I at 107-08. The court added that Applicant had stated at a prior

proceeding that he had completed his G.E.D. in the United States.

       As to the ineffective-assistance-of-counsel claim, the appellate court further

noted that Applicant had “agreed in his testimony that it was his own suggestion

on the eve of trial that a plea agreement be sought” and that the trial court had

found that Applicant “was not prejudiced because he would have pleaded guilty

irrespective of any alleged shortcoming of counsel.” Id. at 108-09. See Hill v.

Lockhart, 474 U.S. 52, 59 (1985) (to establish a claim of ineffective assistance

“the defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial”).

       Under the Antiterrorism and Effective Death Penalty Act (AEDPA), we may

not grant Applicant relief with respect to a claim adjudicated on the merits by the

state court unless the 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 of the United States; or

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             (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

28 U.S.C. § 2254(d). Moreover, factual determinations by a state court are

presumed to be correct and the applicant has the burden of rebutting that

presumption by clear and convincing evidence. Id. at § 2254(e)(1).

      A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the prisoner “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). We recognize that in determining whether

to issue a COA, a “full consideration of the factual or legal bases adduced in

support of the claims” is not required. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). Instead, the decision must be based on “an overview of the claims in the

habeas petition and a general assessment of their merits.” Id.

      The federal district court, applying the appropriate AEDPA standard of

review, denied Applicant relief. That ruling was undoubtedly correct. We add

only that Applicant’s reliance on Boria v. Keane, 99 F.3d 492 (2d Cir. 1996),

clarified on reh’g, 90 F.3d 36 (2d Cir. 1996), is misplaced. Even if Boria were

controlling precedent in our own circuit, it would not support Applicant’s theory.


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In that case the defendant rejected a plea offer that would limit his sentence to

three years, went to trial, and was ultimately sentenced to a term of 20 years to

life. Defense counsel never provided advice on whether to accept the offer. Id. at

494-95. Boria held that counsel has a duty to advise his client when his “best

interests clearly require that a proffered plea bargain be accepted.” Id. at 496. In

contrast, Applicant approached his counsel about negotiating a plea and then

accepted the plea offer.

      We decline to address two matters not raised in district court: (1)

Applicant’s “Motion for Limited Remand to State District Court for Review of

New Exonerating Evidence And [to] Comply With Exhaustion of Administrative

Remedy Requirement Pursuant to [AEDPA]” and (2) his contention that the state

court erred by not accepting an Alford plea. See Walker v. Mather, (In re Walker),

959 F.2d 894, 896 (10th Cir. 1992). Because any reasonable jurist would agree

that the district court ruled properly, we DENY Applicant’s application for a COA

and DISMISS the appeal. We DENY Applicant’s motion to proceed in forma

pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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