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

                                     TENTH CIRCUIT                         August 15, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 BRYAN K. BROWN,

           Petitioner - Appellant,

 v.                                                           No. 14-7018
                                                 (D.C. No. 6:11-CV-00079-RAW-KEW)
 JANET DOWLING, Warden,                                       (E.D. Okla.)

           Respondent - Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


       Bryan Brown seeks a certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the

appeal.

                                             I

       In 2008, Brown pled no contest in Oklahoma state court to three counts of child

sexual abuse. The state agreed that it would not pursue additional charges for lewd

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
molestation and possession of child pornography, and would recommend concurrent

sentences of thirty years with ten years suspended. At a plea hearing, Brown stated under

oath that he understood he was waving his right to a trial and would not be permitted to

call witnesses except at sentencing, that he discussed the issues with his attorney, that

counsel properly assisted him, and that he entered his plea voluntarily and without

coercion. The prosecution stated it was prepared to present evidence demonstrating that

Brown had improper sexual contact with two of his step-grandchildren and a foster child

while they were entrusted to his care. Brown also acknowledged that the state

communicated its intent to file further charges related to other improper sexual contact

with a child and “more than one count” of child pornography. The court accepted

Brown’s plea, and imposed three concurrent sentences of thirty years’ imprisonment with

five years suspended.

       Following sentencing, Brown moved to withdraw his plea based on ineffective

assistance of counsel. His prior counsel withdrew from the case, and another attorney

was appointed. At a hearing on the motion, Brown testified that he understood the

charges against him and the potential penalties, but claimed that he believed a plea of no

contest would result in a bench trial. The court denied Brown’s motion. He appealed

that denial to the Oklahoma Court of Criminal Appeals (“OCCA”), arguing that his plea

had an inadequate factual basis. The OCCA issued a summary order denying review.

       Following direct appeal, Brown sought state post-conviction relief on several

grounds. Each of his claims was eventually denied by the Oklahoma state courts. Brown
                                            -2-
then filed a § 2254 petition in federal court. The district court denied habeas relief, and

declined to grant a COA. It did, however, grant Brown’s motion to proceed in forma

pauperis on appeal. Brown now requests a COA from this court.

                                              II

       Brown may not appeal the denial of § 2254 relief without a COA. § 2253(c)(1).

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

of a constitutional right.” § 2253(c)(2). To satisfy this standard, Brown must

demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quotations omitted).

       Although Brown raised additional issues before the district court, he advances

only two arguments in his filings in this court.1 First, he claims that his plea of no contest

was not made voluntarily. “[T]o determine whether a plea was voluntary, the court must

assess whether the defendant fully understood the consequences of the plea.” United

States v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990). Brown does not suggest in his

federal filings that he misunderstood the consequences of his plea, and the record would

belie any such suggestion. Instead, Brown argued below that he entered a plea only

       1
         Brown also appears to challenge the OCCA’s factual findings, but he does not
identify which findings were errant or any evidence that allegedly supports his claims.
Although we construe Brown’s pro se filings liberally, we will not assume the role of his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                             -3-
because his attorney falsely informed him that the prosecutor would file a child

pornography charge for each image seized by police and that he would “die of old age in

prison.” Brown asserted that he could have been convicted of only one count per disk

regardless of the number of images on each disk and that each count would carry only a

five-year sentence, citing Brown v. State, 177 P.3d 577 (Okla. Crim. App. 2008), and

Okla. Stat. tit. 21, § 1024.2.

         Even assuming that Brown’s legal assertions are correct and that counsel was

misinformed as to the proper charging unit, we conclude that Brown’s involuntary plea

claim lacks merit. “An erroneous sentence estimate does not necessarily render a plea

involuntary. In order for the plea to be held invalid, the defendant must show the plea

was a product of material misrepresentations.” Williams, 919 F.2d at 1456 (citations

omitted). Police claimed to have discovered child pornography on sixteen recordable

compact disks in Brown’s home. Sixteen counts, each carrying a five-year term, in

addition to the existing charges (to say nothing of other potential charges), clearly support

counsel’s bottom-line warning that Brown faced life in prison. “Merely because

appellant . . . chose to rely on his own attorney’s advice and plead guilty to the reduced

charges rather than trust his fate to a jury on additional and more serious charges does not

establish that the plea was involuntary.” Lattin v. Cox, 355 F.2d 397, 400 (10th Cir.

1966).

         Brown also claims that he received ineffective assistance of counsel with respect

to his motion to withdraw his plea. A petitioner claiming ineffective assistance of
                                             -4-
counsel must establish “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that

“the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.

668, 687 (1984). To establish prejudice, a “defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

       Brown states in conclusory fashion that his attorneys failed to properly investigate

and present the motion to withdraw his plea. But he does not advance any argument

explaining how these alleged failures prejudiced him; that is, Brown does not identify

how counsel might have prevailed on the motion to withdraw the plea. Given the

complete absence of argument on this prong, we must treat Brown’s ineffective

assistance argument as waived. See LaFevers v. Gibson, 182 F.3d 705, 725 (10th Cir.

1999) (“[I]ssues adverted to in a perfunctory manner and without developed

argumentation are deemed waived on appeal.”).

                                             III

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



                                                   Entered for the Court




                                                   Carlos F. Lucero
                                                   Circuit Judge
                                            -5-
