                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 19, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                    TENTH CIRCUIT


 CHARLES COBURN,

          Petitioner - Appellant,
                                                        No. 07-5127
 v.                                          (D.C. No. 05-CV-0647-CVE-FHM)
                                                        (N.D. Okla.)
 BRUCE HOWARD, Warden,

          Respondent - Appellee.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.


      Petitioner-Appellant Charles Coburn, appearing pro se, seeks a certificate

of appealability (COA) allowing him to appeal from the district court’s denial of

his habeas petition, 28 U.S.C. § 2254. Because Mr. Coburn has failed to make a

“substantial showing of the denial of a constitutional right,” see id. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 483–84 (2000), we deny a COA and dismiss the

appeal.

      Mr. Coburn pleaded guilty to one count of obtaining money by false

pretense after former conviction of two or more felonies. The state court

sentenced him to six years imprisonment. Mr. Coburn applied for post-conviction

relief alleging ineffective assistance of counsel and an excessive sentence, which
was denied by the state trial court and affirmed by the Oklahoma Court of

Criminal Appeals (OCCA). R. Doc. 13, Ex. 2–3. Mr. Coburn then filed his

federal petition raising the same two issues. R. Doc. 1 at 5–6. The district court

determined that both issues had been exhausted, and denied the petition holding

that the state courts’ resolution of the ineffective assistance of counsel claim was

not unreasonable, and that Mr. Coburn could not overcome the state procedural

bar on his excessive sentence claim. Coburn v. Howard, No. 05-0647, 2007 WL

2111216, *4–*5 (N.D. Okla. July 19, 2007). Seeking a COA, Mr. Coburn raises

three issues: (1) ineffective assistance of counsel; (2) due process violations; and

(3) denial of a fair trial because no counsel was present. We only address the first

issue, because the other issues were not raised in his petition. Tele-

Communications, Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997).

      A petitioner may obtain federal habeas relief only if the state court decision

was contrary to or “involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or “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). State court

factual findings are presumed correct; the presumption yields only based on clear

and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).

      The district court determined that the OCCA’s adjudication of the

ineffective assistance claim was not contrary to or an unreasonable application of

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Supreme Court precedent. Coburn, 2007 WL 2111216, *4. First, construing Mr.

Coburn’s argument as a factual argument, Mr. Coburn argues that he never met or

communicated with his attorney, Richard Clark, and his attorney did not attend

pre-trial hearings or sentencing. The record shows that Mr. Clark attended

sentencing, R. Doc. 13, Ex. 5 at 3, and that Mr. Coburn indicated on a form filed

with the state court, “Findings of Fact - Acceptance of Plea,” that he talked with

his lawyer Richard Clark, R. Doc. 13, Ex. 6 at 2. Mr. Coburn presents no

evidence to the contrary.

      Second, construing Mr. Coburn’s argument as a legal argument, a petitioner

must show that counsel’s performance was deficient and that the petitioner was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

show prejudice in the context of a guilty plea, a petitioner “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.” Hill v. Lockhart, 474

U.S. 52, 59 (1985). Applying these standards, the district court noted that Mr.

Coburn does not allege any prejudice from the claimed deficient performance,

only that being counseled by a legal intern was improper. The district court

concluded that this prejudice is insufficient to meet the second prong of the

Strickland test and was not an unreasonable application of Supreme Court

precedent by the OCCA. Coburn, 2007 WL 2111216, *4. We conclude that the

district court’s application of § 2254(d) to petitioner’s constitutional claims was

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not reasonably debatable among jurists. See Miller-El v. Cockrell, 537 U.S. 322,

336 (2003).

      We DENY the motion for a COA and DISMISS the appeal.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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