                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 7 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


ROGER LYNN RAY,

          Petitioner - Appellant,
                                                       No. 02-5019
                                                (D.C. No. 00-CV-565-H(M))
v.
                                              (Northern District of Oklahoma)
SAM CALBONE,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This case is before the court on a request by Roger Lynn Ray for a

certificate of appealability (“COA”). Ray seeks a COA so he can appeal the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court’s dismissal of his 28 U.S.C. § 2254 petition.   See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254

petition unless the petitioner first obtains a COA). Because Ray has not made a

substantial showing of the denial of a constitutional right, he is not entitled to a

COA and his appeal is dismissed.       See id. § 2253(c)(2). Ray’s request to proceed

in forma pauperis on appeal is granted.

       Ray pleaded guilty to a charge of first degree manslaughter and forty-five

days later was sentenced to twenty-five years’ imprisonment. Ray did not move

to withdraw his guilty plea and did not file a direct appeal. Five months after

sentencing, Ray filed an application for post-conviction relief, seeking to file an

appeal out of time. Ray claimed he was denied the right to appeal his conviction

because of the ineffective assistance of his counsel. The state district court

denied post-conviction relief and Ray appealed to the Oklahoma Court of

Criminal Appeals (“OCCA”). On April 12, 2000, The OCCA affirmed the

district court’s denial of the application for post-conviction relief.

       Ray filed his § 2254 habeas petition on July 7, 2000 raising one claim: that

he was denied his Sixth and Fourteenth Amendment rights to counsel, due

process, and equal protection and his First Amendment right to access the courts

because of the ineffective assistance of his counsel. The bases of Ray’s claim

were his assertions that his attorneys failed to inform him of his right to withdraw


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his guilty plea and that he was unable to contact his attorneys during the ten-day

period after sentencing. The district court rejected respondent’s argument that

Ray’s claim was procedurally barred and addressed the claim on the merits. The

district court concluded that Ray’s ineffective assistance claim lacked merit

because he failed to show that his counsel’s performance was deficient.      See

Strickland v. Washington , 466 U.S. 668, 687 (1984).

      “[C]ounsel has a constitutionally imposed duty to consult with the

defendant about an appeal when there is reason to think either (1) that a rational

defendant would want to appeal . . . or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.”      Roe v.

Flores-Ortega , 528 U.S. 470, 480 (2000). Ray contends that both he and his

mother attempted to contact his attorneys after he was sentenced to inform them

that he wanted to withdraw his guilty plea but that all attempts were

unsuccessful. Ray also made this assertion before the OCCA but failed to attach

any documentation or other evidence to support it. Accordingly, the OCCA

concluded that Ray failed to demonstrate that he was denied an appeal through no

fault of his own. The district court concluded that the OCCA’s determination

was not unreasonable and that Ray, therefore, has not shown that his attorney




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either knew or should have known that he wanted to withdraw his guilty plea.      1



We agree.

       The district court also considered whether counsel had a duty to inform

Ray of his right to appeal based on Ray’s assertions that his counsel knew or

should have known that he had a claim of constitutional error that could result in

the setting aside of his guilty plea.   See Marrow v. United States   , 772 U.S. 525,

529 (10th Cir. 1985) ( [I]f there is a claim of error in connection with the plea

proceeding that would constitute grounds for setting aside the plea, and if

counsel either knows or should have learned of his client’s claim or of the

relevant facts giving rise to that claim, counsel has a duty to advise his client of

the right to appeal the conviction.”). The district court concluded that the record

provided no support for Ray’s assertions that his plea was not made knowingly

and voluntarily. The court noted that Ray signed a written guilty plea in which

he stated, inter alia , that he had discussed the charge against him and any




       The district court went on to construe the OCCA’s determination as a
       1

factual finding and then concluded that Ray had failed to rebut that finding with
clear and convincing evidence. In arriving at that conclusion, the district court
considered affidavits submitted by Ray, Ray’s mother, and Ray’s counsel. These
affidavits were not before the OCCA. Ray argues that the district court erred by
not holding an evidentiary hearing on the affidavits. Without expressing any
opinion on the propriety of the district court’s alternative analysis, we note that
Ray was not entitled to an evidentiary hearing because he failed to develop the
factual basis for his claim in his state court proceedings. See 28 U.S.C. §
2254(e)(2).

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defenses with his lawyer, that he believed his lawyer had effectively assisted him,

that his plea of guilty was made without any coercion or compulsion, and that he

had read the written plea and understood its contents.

      Based on its determination that Ray failed to show either that he

reasonably demonstrated to his counsel that he was interested in appealing or that

his counsel had a reason to believe that he would want to appeal, the district

court concluded that Ray failed to demonstrate that his counsel had a duty to

inform him of his right to appeal. Consequently, the district court concluded that

Ray failed to show that his counsels’ performance was constitutionally deficient

and it denied habeas relief.

      This court has reviewed Ray’s application for a COA, his appellate brief,

the district court’s order dated February 7, 2002, and the entire record on appeal.

That review clearly demonstrates the district court’s dismissal of Ray’s § 2254

petition is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, we   deny Ray’s request for a COA and

dismiss his appeal.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge



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