                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    September 13, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 B RIA N J. M cG O LD RIC K,

              Petitioner - A ppellant,

 v.                                                     No. 06-3221
                                                         (D. Kansas)
 DAVID R. M cKUNE, W arden,                      (D.C. No. 05-CV-3288-JTM )
 Lansing Correctional Facility,

              Respondent - Appellee.



         OR DER DENY ING A CERTIFICATE O F APPEALABILITY


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.




      Brian J. M cGoldrick is a Kansas state prisoner currently serving 412

months’ imprisonment on state convictions for one count of aggravated robbery,

nine counts of robbery, and one count of possession of cocaine. On June 27,

2005, M r. M cGoldrick filed an application for a writ of habeas corpus under 28

U.S.C. § 2254 in the United States D istrict Court for the D istrict of Kansas. In

his application M r. M cGoldrick alleged that (1) the sentencing court violated his

constitutional rights by imposing a sentence greater than the 194 months

recommended in the plea agreement; (2) the state violated his due-process rights

by failing to recommend a sentence of 194 months’ imprisonment as it agreed to
do in his plea agreement; (3) there was insufficient evidence to support his

robbery convictions; (4) his conviction on two of the robbery counts was

unconstitutional because the wrong victims were alleged; and (5) he received

ineffective assistance of counsel at trial and on appeal. These arguments were

previously raised before the Kansas state courts in M r. M cG oldrick’s

postconviction motion attacking his sentence. On M ay 10, 2006, the district court

denied M r. M cGoldrick’s application; and on July 5, it denied him a certificate of

appealability (COA), see 28 U .S.C. § 2253(c)(1) (requiring a COA to appeal the

denial of a motion under § 2254). M r. M cGoldrick now seeks a COA from this

court to appeal the district court’s denial of his § 2254 application. W e deny a

COA and dismiss the appeal.

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.




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      The A ntiterrorism and Effective D eath Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes 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.” 28 U.S.C.

§ 2254(d)(1), (2).

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court’s decisions but unreasonably applies that
      principle to the facts of the prisoner’s case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks

and citations omitted). “AEDPA ’s deferential treatment of state court decisions

must be incorporated into our consideration of a habeas petitioner’s request for

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

      W e have carefully considered M r. M cG oldrick’s pleadings and the record

before us. No reasonable jurist could disagree with the district court’s thorough



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and well-reasoned resolution of the issues. Therefore, we DENY a COA and

DISM ISS M r. M cGoldrick’s appeal.


                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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