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

 ROBERT ROSS,

                 Plaintiff-Appellant,                     No. 01-2267
          v.                                            (D. New Mexico)
 RON LYTLE, Warden, Central New                 (D.C. No. CIV-00-1726-JP/LCS)
 Mexico Correctional Facility, and the
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

                 Defendants-Appellees.


                               ORDER AND JUDGMENT         *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the appellant’s request for a decision on the briefs without

oral argument.     See Fed. R. App. P. 34(f). The case is therefore submitted

without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
                                 I. BACKGROUND



      Robert Ross, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) so that he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition.   See 28 U.S.C. § 2253(c)(1)(A) (providing

that no appeal may be taken from the denial of a § 2254 habeas petition unless the

petitioner first obtains a COA). Because Mr. Ross has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. 28 U.S.C.         § 2253(c)(2).

      In New Mexico district court, Mr. Ross pleaded nolo contendere to

solicitation to distribute cocaine and trafficking of cocaine. Under the terms of

the plea agreement, the State agreed to:

      order the defendant’s incarceration to be transferred to the State of
      North Carolina, provided that New Mexico and North Carolina have
      an agreement regarding the reciprocal exchange of prisoners. The
      parties understand that the defendant shall then be subject to the laws
      and regulations governing the North Carolina Department of
      Corrections. In the event that such a reciprocal prisoner exchange
      agreement does not exist, the defendant’s incarceration shall be
      transferred to a state facility where the in-custody population
      contains a significant portion of African-Americans.

Rec. vol. I, doc. 9, Ex. C ¶ 5 (Repeat Offender Plea and Disposition Agreement,

dated Mar. 23, 1999). Mr. Ross also waived his right to appeal by entering the

plea agreement.


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      Mr. Ross was subsequently sentenced to eighteen years’ imprisonment to

run concurrently with his sentence for another offense. The judgment also

included the North Carolina “transfer” language as provided in the plea

agreement.

      In his § 2254 petition before the district court, Mr. Ross contended that (1)

he involuntarily entered the plea agreement, (2) his counsel provided him

ineffective assistance, and (3) he suffered cruel and unusual punishment because

he was “sentence[d] . . . to a Negro prison because [he is] Negro.” Rec. doc. 1, at

XI (application for a writ of habeas corpus, filed Dec. 7, 2000). Each of these

claims was addressed by the state court during post-conviction proceedings. The

district court adopted the findings of a magistrate judge and dismissed Mr. Ross’

claims. We agree, and hold that none of Mr. Ross’ claims demonstrate a

“substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2); thus we deny Mr. Ross’ request for a COA.

                                  II. DISCUSSION

      To obtain a COA, Mr. Ross must establish 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).


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      As to his involuntary plea contention, the magistrate judge noted that Mr.

Ross signed the plea agreement, asserting that he had read and understood that

agreement. Mr. Ross’ attorney also signed the agreement, attesting that he had

discussed the terms of the agreement with his client. Furthermore, at sentencing,

the sentencing judge questioned Mr. Ross about his understanding of the terms of

the agreement and Mr. Ross stated that he voluntarily entered the agreement.     See

United States v. Cockerham , 237 F.3d 1179, 1188-89 (10th Cir. 2001) (upholding

voluntariness of plea after colloquy with defendant as to defendant’s

understanding of the terms of the plea and his voluntary entry into the agreement).

      Our review of the plea agreement and the transcripts of the sentencing

hearings reveals nothing to suggest that Mr. Ross’ entrance into the agreement

was either unknowing or involuntary or that defendant was unaware of the

consequences of his plea.    See United States v. Fortier , 180 F.3d 1217, 1223 (10th

Cir. 1999). In light of these statements by the court and Mr. Ross, we hold that

Mr. Ross entered his plea knowingly and voluntarily. We therefore affirm the

district court’s decision dismissing the § 2254 motion as it relates to the

voluntariness of the plea.

      With respect to the remaining claims, all of which the district court found

were addressed in Mr. Ross’ direct state appeal, we deny a COA for substantially

the reasons set forth in the district court’s order and in the magistrate’s report and


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recommendation. More specifically, as to Mr. Ross’ contention that his counsel

was ineffective because counsel (1) failed to make timely motions, (2) was

intoxicated, and (3) misled Mr. Ross with respect to the plea agreement, we agree

with the district court that Mr. Ross makes no assertions regarding the prejudice

he suffered. We agree with the district court’s dismissal of this claim. Similarly,

we also agree with the district court’s rejection of Mr. Ross’ cruel and unusual

punishment claim.   See Prows v. Federal Bureau of Prisons   , 981 F.2d 466, 468

n.3 (10th Cir. 1992).

      Accordingly, for the reasons set forth above, we DENY Mr. Ross’ request

for a COA and DISMISS his appeal.

                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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