                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                     March 28, 2011
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 CHARLES STAUFFER, JR.,

              Petitioner - Appellant,
                                                        No. 10-5106
 v.                                        (D.C. No. 4:07-CV-00206-TCK-TLW)
                                                     (N.D. Oklahoma)
 HASKALL HIGGINS, Warden,

              Respondent - Appellee.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Charles Stauffer Jr. (Defendant), an Oklahoma state prisoner, seeks a

certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254

application for habeas relief. See 28 U.S.C. § 2253(c)(2) (requiring COA to

appeal denial of application). Because Mr. Stauffer has failed to make a

substantial showing of the denial of a constitutional right, we deny his request for

a COA and dismiss the appeal.

I.    BACKGROUND

      Defendant pleaded guilty to two counts of lewd molestation in Oklahoma

state court. The victim was his daughter while she was under the age of 16.

Attorney Mark D. Matheson represented Defendant through three days of jury
trial, during which the jury heard the testimony of the victim, her brother, and her

mother. After consultation with Defendant, Matheson negotiated a plea

agreement during the trial, and Defendant pleaded guilty on October 28, 2005.

On December 14 the trial court sentenced him in accordance with the agreement

to 20 years’ imprisonment with 10 years’ suspended.

      On December 22 Defendant moved to withdraw his plea on the ground that

it was not knowing or voluntary because Matheson had provided ineffective

assistance of counsel. He contended that Matheson had failed to prepare

adequately for trial in that Matheson (1) did not review records of a previous

investigation by the Department of Human Services (DHS) of molestation

allegations; (2) did not sufficiently discuss trial strategy with Defendant; and (3)

failed to advise him of an Oklahoma requirement that he serve 85% of his

sentence before being eligible for parole. The trial court held a hearing at which

both Matheson and Defendant testified. It denied Defendant’s motion, holding

that his plea was freely and knowingly given and that Defendant failed to show

that Matheson had provided ineffective assistance.

      Defendant filed with the Oklahoma Court of Criminal Appeals (OCCA) a

petition for certiorari, which the OCCA denied. The court held that Matheson had

not performed ineffectively and that Defendant had not shown prejudice from any

alleged defect in Matheson’s performance. It said that no prejudice had arisen



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from Matheson’s failure to request the DHS records, because there was no

guarantee that the DHS would have released the records to Matheson and because

the record did not suggest that the witnesses’ DHS interviews were inconsistent

with their trial testimony. It also noted that Matheson had testified that he had

informed Defendant of the 85% requirement and that Defendant himself had

testified that he understood that he could “continue with trial or take ‘the ten and

walk away with just eight and a half.’” Supp. R., Vol. 1 pt. 1 at 18 n.3.

      Defendant then filed an application under 28 U.S.C. § 2254 in the United

States District Court for the Western District of Oklahoma, raising the single

claim that his guilty plea was not entered knowingly or voluntarily because he

received ineffective assistance of counsel. The court denied the application.

II.   DISCUSSION

      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. McDaniel, 529 U.S. 473,

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




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

“debatable or wrong.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

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

federal court can grant habeas relief only if 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). As we have explained:

      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 Court has on a set of materially indistinguishable facts.


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

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “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.” Id. (brackets and internal quotation

marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

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that application must have been unreasonable. Because Defendant’s claim was

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).

       On appeal Defendant argues that Matheson’s representation was

constitutionally ineffective because (1) he did not adequately prepare the case and

(2) he did not advise Defendant of Oklahoma’s requirement that he serve 85% of

his sentence before being eligible for parole. To establish that his counsel was

ineffective, Defendant must show both “that counsel’s representation fell below

an objective standard of reasonableness” and that he was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

“[A] court need not determine whether counsel’s performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, . . . that course should be followed.” Id. at

697.

       With regard to Defendant’s first ineffectiveness argument, he contends that

Matheson (1) failed to obtain the records of the DHS investigation and any

videotaped police interviews with trial witnesses and (2) failed to contact

potential defense witnesses, including other children living in Defendant’s home



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and character witnesses. We need not determine whether Matheson’s

performance was defective, however, because it was reasonable for the OCCA to

determine that Defendant had not shown prejudice. Nothing in the record

indicates that the witnesses’ statements to the DHS or to the police were

inconsistent with trial testimony; nor has Defendant presented any other

unpursued evidence that would have called the testimony of these trial witnesses

into question.

       Defendant’s second argument is that Matheson failed to inform him that he

would be required to serve 85% of his sentence before becoming eligible for

parole. But he was not prejudiced by any failure to be so-informed unless he

would have refused to plead guilty had he been informed, see Hill v. Lockhart,

474 U.S. 52, 60 (1985); and Defendant has not asserted that he would have

insisted on continuing with the trial had Matheson informed him of his parole

eligibility date. Nor does the record show “special circumstances that might

support the conclusion that [Defendant] placed particular emphasis on his parole

eligibility in deciding whether or not to plead guilty.” Id.




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III.   CONCLUSION

       We DENY the application for a COA and dismiss the appeal.

                                    ENTERED FOR THE COURT



                                    Harris L Hartz
                                    Circuit Judge




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