                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        November 2, 2005
                                 TENTH CIRCUIT
                                                                           Clerk of Court

 RAYMOND POTTS,

       Petitioner - Appellant,
                                                         No. 05-6075
 v.                                                (D.C. No. 04-CV-685-R)
                                                         (W.D. Okla.)
 RON WARD; ATTORNEY
 GENERAL OF THE STATE OF
 OKLAHOMA,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Defendant-Appellant Raymond Potts, a state inmate appearing pro se, seeks

a certificate of appealability (“COA”) so as to appeal from the district court’s

denial of his habeas corpus petition. 28 U.S.C. § 2254. In order to merit a COA,

Mr. Potts must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253 (c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

To make such a showing, he must demonstrate that reasonable jurists would find

the district court’s resolution of the constitutional issue contained in his motion

debatable or wrong. Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because
we find that Mr. Potts has not made such a showing, we deny a COA and dismiss

the appeal.

      On June 20, 2002, Mr. Potts pled guilty to one count of first degree

burglary and no contest to one count of assault and battery with a dangerous

weapon. After a sentencing hearing on October 23, 2002, the court sentenced Mr.

Potts to twenty years imprisonment on each count to be served consecutively.

The plea arose from an incident where Mr. Potts broke into the home of a former

employer with the intent to steal $100. Mr. Potts broke a window in a door

separating the kitchen from the den, and in the process confronted a twelve-year

old child. Though Mr. Potts denies any intent to harm or frighten the child, the

child testified at a sentencing hearing that a few seconds prior to hitting the glass

with his arm, Mr. Potts stared at him, yelled out and frightened him. R. Doc. 12,

Ex. 4 at 7-8. The flying glass cut the child, who bled profusely. Id. at 9.

      On November 4, 2002, Mr. Potts, through counsel, sought to withdraw his

guilty plea. He testified that after his arrest, he accepted a plea agreement

stipulating he would be sentenced to two twenty-year terms of imprisonment to be

served concurrently. Mr. Potts testified that after he accepted the agreement but

before the hearing, he traveled to California and was unable to appear as

scheduled in Oklahoma due to the events of September 11, 2001. Mr. Potts

testified he voluntarily surrendered to California authorities but upon his return to


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Oklahoma, the state withdrew its plea offer. In his application to withdraw his

plea, Mr. Potts argued he should have been sentenced in accord with the original

agreement. The trial court denied the motion to withdraw the guilty plea on

November 22, 2002.

      Mr. Potts, represented by new counsel, appealed to the Oklahoma Court of

Criminal Appeals (OCCA) and argued (1) his convictions violate the prohibitions

against double jeopardy and double punishment, (2) that the trial court erred in

denying his application to withdraw his guilty pleas, (3) that the trial court

committed reversible error in failing to inform him of the elements of each

offense charged when it accepted the guilty pleas, and (4) there was an inadequate

factual basis for his guilty pleas. A majority of the OCCA denied certiorari under

Rule 4.2(B), Rules of the OCCA, 22 Okla. Stat. Ch. 18, because Mr. Potts

presented issues not raised in his application to withdraw his guilty plea.

      In his federal habeas petition, Mr. Potts asserted (1) that his convictions

violate prohibitions on double jeopardy and double punishment and (2) the trial

court committed reversible error in accepting the pleas without informing Mr.

Potts of the elements of the offense charged. In its response, the state argued that

Mr. Potts is procedurally barred from raising his claims based on Rule 4.2(B).

      On April 18, 2005, the district court adopted the report and

recommendation of the magistrate judge. The district court determined that Rule


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4.2(B) was inadequate to bar review of Mr. Potts’ claims, and denied relief on the

merits. On appeal, Mr. Potts contends that his convictions violate the prohibition

against double jeopardy and double punishment, and that the state trial court erred

by accepting his no contest plea, not establishing a factual basis for the charge,

and refusing to grant his motion to withdraw the plea.

      We do not think that the following conclusions of the magistrate judge and

the district court are reasonably debatable: (1) Mr. Potts’ plea was voluntary and

intelligent, and (2) as a result, his double jeopardy challenge (which is meritless

given the different elements of the offenses and the facts of this case) is

foreclosed. United States v. Broce, 488 U.S. 563, 569-71 (1989). There is no

requirement as a matter of federal constitutional law that the state trial court

review the elements of each offense before accepting a voluntary and intelligent

guilty plea. United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991).

      We also agree with the district court that there was a sufficient factual basis

to support the pleas. See R. Doc. 18, Ex. C at ¶ 24 (“I admit I broke a window”);

R. Doc. 18 Ex. D (warrant affidavit describing Mr. Potts’ interaction with the

injured child as a “confrontation” and incorporated by reference into Mr. Potts’

signed plea summary of facts at R. Doc. 18, Ex. C at ¶ 31). That Mr. Potts

contends now, as he did at his sentencing hearing, that he did not intend to

commit assault and battery (but merely intended to break a window) is beside the


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point. The state had evidence that Mr. Potts confronted the victim with a yell and

then broke the window, frightening the victim, as well as injuring him.

      Accordingly we DENY the application for COA, DENY the motion to

proceed in forma pauperis and DISMISS the appeal.



                                      Entered for the Court



                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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