                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 30, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 MICHAEL D. MOEHRING,

              Petitioner - Appellant,                   No. 11-1388
       v.                                               (D. Colorado)
 KEVIN MILYARD, Warden, Sterling              (D.C. No. 1:10-CV-02023-MSK)
 Correctional Facility; JOHN
 SUTHERS, Attorney General of the
 State of Colorado,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.



      Applicant Michael Moehring, a prisoner of the State of Colorado, applied

for relief under 28 U.S.C. § 2254 in the United States District Court for the

District of Colorado. The district court dismissed two of Applicant’s claims as

procedurally barred and denied his third claim on the merits. Applicant seeks a

certificate of appealability (COA) from this court on all three claims. See

28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under

§ 2254). We deny his request for a COA and dismiss the appeal.
I.    BACKGROUND

      The Colorado Court of Appeals described the basis of the criminal charges

as follows:

      [Applicant], his girlfriend, and another person entered a large
      discount store to return stolen merchandise. While there,
      [Applicant]’s girlfriend stole an unattended purse from a shopping
      cart. Store security became involved and apprehended the third
      person. When the store manager went outside to stop [Applicant]
      and his girlfriend, [Applicant] pulled out a gun and shot him twice in
      the abdomen causing serious bodily injury. The crime occurred
      while [Applicant] was on probation for two felonies and a deferred
      sentence for a third felony.

Order Affirmed, People v. Moehring, No. 06CA2058, at 1 (Colo. App. Dec. 27,

2007) (unpublished) (R., Vol. 1 pt. 1 at 135). Applicant pleaded guilty to

attempted first-degree murder and a crime-of-violence sentencing enhancement.

Shortly before the scheduled date for his sentencing, however, he filed a pro se

motion to withdraw his guilty plea and for appointment of new defense counsel.

The motion alleged that his guilty plea was coerced and that he needed new

counsel because his counsel, Cynthia McKedy, was ineffective and had

incorrectly advised him of the risks of going to trial. The court appointed Philip

Dubois to represent Applicant, and Mr. Dubois filed a second motion to withdraw

the plea. The motion argued that Applicant did not knowingly, voluntarily, and

intelligently enter into the plea agreement because he had not been given an

opportunity before his plea to review surveillance video, which, contrary to what

he had been told, did not clearly show his face.

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      After hearing testimony from Applicant, Ms. McKedy, and Rosalie Roy

(Applicant’s counsel before Ms. McKedy), the trial court denied Applicant’s

motion to withdraw his plea. It then sentenced him to 38 years in prison. The

court later ordered that Applicant pay nearly $800,000 in restitution. The

Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied

Applicant’s petition for a writ of certiorari.

      Almost a year later, Applicant filed a postconviction motion in state court.

The court denied the motion on the ground that all issues raised had been fully

and finally resolved on direct appeal. The state court of appeals affirmed.

      Applicant then filed his § 2254 application in federal district court. His

amended application raised three claims: (1) that his counsel rendered ineffective

assistance by telling him that his identity was not in question and refusing to

show him the surveillance video of the crime scene; (2) that the trial court abused

its discretion in denying his motion to withdraw his guilty plea; and (3) that the

trial court abused its discretion and violated the Double Jeopardy Clause by

allegedly increasing the award of restitution from $372.50 to almost $800,000.

The district court dismissed the second and third claims as procedurally barred for

failure to exhaust state remedies, and later denied the first claim on the merits.

II.   DISCUSSION

      “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.

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§ 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). And “[w]here a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id.

      In addition, the Antiterrorism and Effective Death Penalty Act (AEDPA)

establishes deferential standards of review for state-court factual findings and

legal conclusions. “AEDPA . . . mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing

evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting

28 U.S.C. § 2254(e)(1)). If the federal claim was adjudicated on the merits in the

state court,

      we may only grant federal habeas relief if the habeas petitioner can
      establish that 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.”

Id. (quoting 28 U.S.C. § 2254(d)(1) and (2)). Further, our concern is only

whether the state court’s result, not its rationale, is clearly contrary to or


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unreasonable under federal law. Id. at 1176. For those parts of Applicant’s

claims that were adjudicated on the merits, “AEDPA’s deferential treatment of

state court decisions must be incorporated into our consideration of [his] request

for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      A.     Ineffective Assistance of Counsel

      Applicant argues that his trial counsel was ineffective because (1) she

failed to show him the surveillance video of the crime scene and (2) she

incorrectly advised him about the punishment he could face if he did not plead

guilty. One challenging his conviction or sentence on the basis of ineffective

assistance must establish (1) that his “counsel’s representation fell below an

objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668,

688 (1984), and (2) 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. Review of counsel’s performance under the first part of this test is highly

deferential. “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 690. Counsel’s performance is deficient only if it falls “outside

the wide range of professionally competent assistance.” Id.

      The Colorado Court of Appeals held that Applicant had failed to meet

either prong of the Strickland test, and the federal district court concluded that the

state court’s decision was neither contrary to nor involved an unreasonable

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application of federal law. The district court noted that the state trial court had

believed Ms. McKedy’s testimony contradicting Applicant’s factual allegations

regarding what she had and had not told him. In a § 2254 proceeding the federal

courts must presume state-court fact findings to be correct unless the applicant

rebuts the presumption by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1). Because the district court could properly find that Applicant’s own

testimony was not clear and convincing evidence, no reasonable jurist could

debate the district court’s ruling on this claim. See Mitchell v. Gibson, 262 F.3d

1036, 1059 (10th Cir. 2001); Trice v. Ward, 196 F.3d 1151, 1169–70 (10th Cir.

1999).

         B.    Withdrawal of Guilty Plea

         Applicant next argues that the trial court abused its discretion in denying

his motion to withdraw his guilty plea. The district court dismissed this claim for

failure to exhaust. We need not address exhaustion, however, because Applicant

has not shown “that jurists of reason would find it debatable whether [his

application] states a valid claim of the denial of a constitutional right.” Slack,

529 U.S. at 484.

         Applicant argued in his § 2254 application that the trial court violated his

federal right to due process because it refused to allow him to withdraw an invalid

plea. He claims that his plea was invalid because of ineffective assistance of




                                           -6-
counsel. But we have already held that we must reject Applicant’s

ineffectiveness claim.

      Applicant also argued that the trial court’s denial of his motion to withdraw

was erroneous because it did not weigh the seven factors set forth in United States

v. Siedlik, 231 F.3d 744, 749 (10th Cir. 2000), and based its decision on an

unreasonable determination of the facts. But Applicant cites no Supreme Court

authority mandating the seven-factor test. See Cook v. McKune, 323 F.3d 825,

830 (10th Cir. 2003) (“Under the AEDPA, the only federal law we are to consider

is clearly established federal law as determined by decisions, not dicta, of the

Supreme Court, as opposed to decisions of lower federal courts.”). And

Applicant has not presented clear and convincing evidence that the factual basis

for the trial court’s decision was wrong. Hence, no reasonable jurist could debate

dismissal of this claim.

      C.     Double-Jeopardy Challenge

      Finally, Applicant argues that the trial court violated the Double Jeopardy

Clause because it ordered restitution of almost $800,000 after having already set

restitution at $372.50. But in district court Applicant explicitly conceded that he

had not exhausted this claim. Accordingly, he has waived this issue, and we will

not consider it. See Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127 (10th

Cir. 2011) (“If [a] theory was intentionally relinquished or abandoned in the

district court, we usually deem it waived and refuse to consider it.”).

                                         -7-
III.   CONCLUSION

       We GRANT Applicant’s motion to proceed in forma pauperis, DENY his

application for a COA, and DISMISS this appeal.

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




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