                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          December 13, 2005
                                    TENTH CIRCUIT
                                                                             Clerk of Court

 GREGORY L. COLLINS,

          Petitioner - Appellant,

 v.
                                                          No. 05-3105
 STATE OF KANSAS; DAVID R.                                (D. Kansas)
 MCKUNE, Warden, Lansing                          (D.Ct. No. 02-CV-3429-SAC)
 Correctional Facility,

          Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and 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.

      Gregory L. Collins, a state prisoner appearing pro se, 1 seeks a certificate of

appealability (“COA”) allowing him to appeal the district court's order denying


      1
       We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 2 Because we

conclude Collins’ plea was entered voluntarily and intelligently, we deny a COA

and dismiss the appeal.

          The parties are familiar with the facts and we need not restate them here.

Collins argues his February 28, 2000 plea of no contest to charges of aggravated

battery, aggravated kidnaping, aggravated robbery, and aggravated assault, for

which he was subsequently sentenced to 267 months imprisonment by a Kansas

state court, should have been withdrawn because his trial counsel’s performance

was inadequate and consequently his plea was entered without an understanding

of his constitutional rights.

      After careful consideration of the materials submitted by Collins against a

backdrop of the state court record, we hold the district court’s conclusions are not

reasonably debatable. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The

circumstances surrounding Collins’ entry of plea demonstrates it was entered

voluntarily and intelligently. The plea agreement specified that Collins’ sentence

would be determined based on criminal history, which was not fully known at the

time of the plea agreement. Prior to accepting Collins’ plea, the Kansas trial



      2
        On January 4, 2005, Collins filed a pro se notice of appeal with this Court which
we construe as an application for a COA. FED. R. APP. P. 22(b)(2). The district court
granted Collins’ motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)
and FED. R. APP. P. 24(a)(2).

                                           -2-
court examined his understanding of the rights waived by pleading no contest to

the charges. The Court also advised Collins orally and in writing of the

sentencing range and that the sentence would be determined based on his criminal

history. Only after the sentence was imposed did Collins claim his counsel was

ineffective and his plea should be withdrawn. After appointing new counsel and

hearing argument on Collins’ claims, the trial court rejected his request to

withdraw his plea. The Kansas Court of Appeals considered and rejected Collins’

claim and affirmed the trial court’s determination that his plea was entered

knowingly and voluntarily. See Kansas v. Collins, No. 85,825 (Kan. Ct. App.

Oct. 1, 2001), rev. denied December 18, 2001. 3 The state appellate decision was

not contrary to “clearly established federal law.” 28 U.S.C. § 2254(d)(1). See

F ED . R. C RIM . P. 11(b). Discontent with the actual sentence imposed is not a basis

to withdraw a plea or claim ineffective assistance of counsel, especially where the

defendant has been advised prior to the entry of his plea, both by his counsel and

the court, of the possible sentencing range, warned of the role of criminal history

in sentencing, and given an opportunity to ask questions or object. See United


      3
         It does not appear from the record that Collins raised ineffective assistance of
counsel before the Kansas appellate court. The court only noted that Collins’ petition
before the trial court was supported by complaints of ineffective assistance of counsel.
Thus, Collins has not exhausted his state court remedies with respect to his ineffective
assistance claim. However, the district court addressed the unexhausted claim in order to
resolve the entire petition on the merits. See Moore v. Schoeman, 288 F.3d 1231, 1235
(10th Cir. 2002); 28 U.S.C. § 2254(b)(2).

                                           -3-
States v. Elias, 937 F.2d 1514, 1520 (10th Cir. 1991).

      For substantially the same reasons set forth by the district court, we DENY

Collins' request for a COA and DISMISS the appeal.



                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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