                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 7, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 RO NA LD G . PIERCE,

          Petitioner-A ppellant,

          v.                                           No. 05-1458
                                                      (D. Colorado)
 RICK A. SO ARES, Ordway                    (D.C. No. 02-CV -1487-EW N-OES)
 C orrectional Facility, and JO H N
 W . SU THERS, the Attorney
 General of the State of Colorado, *

          Respondents-Appellees.




                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      Ronald G . Pierce, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s decision

dismissing his 28 U.S.C. § 2254 petition for a writ of habeas corpus, based on

various alleged failures to investigate his mental capacity, allegations of

ineffective assistance of counsel, prosecutorial misconduct and purported

violations of his plea agreement. M r. Pierce also seeks to proceed in forma




      *
        Pursuant to Fed. R. App. P. 43(c)(2), John W . Suthers, Ken Salazar’s
successor, has been automatically substituted as a party to this appeal.
pauperis (“IFP”). Because we determine that he has not made “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny

his request for a COA and dismiss the matter. W e grant his motion to proceed

IFP.

                                 I. BACKGROUND

       In June 1988, M r. Pierce pleaded guilty to two counts of felony murder

with stipulated consecutive life sentences, in exchange for the government to

withdraw its request for the death penalty. The plea agreement included an

agreement that if M r. Pierce cooperated w ith the district attorney’s office’s

investigation regarding other involved parties, and testified to that regard, that the

district attorney would not object to M r. Pierce’s request that the sentences run

concurrently. During the course of the plea negotiations, M r. Pierce was

represented by three separate attorneys. M r. Pierce did not file a direct appeal.

       In M arch 1989, M r. Pierce filed a postconviction motion to withdraw his

guilty pleas pursuant to Colo. R. Crim. P. 35(c), alleging ineffective assistance of

counsel and challenging the validity of his guilty plea. Over the next decade, tw o

separate attorneys were appointed to assist M r. Pierce. The first attorney was

allowed to withdraw in 1996, and the second in 1999. Thereafter, M r. Pierce

proceeded pro se, and filed another postconviction motion that alleged he was

legally incompetent to proceed. After two hearings and a mental health

examination, M r. Pierce w as determined to be legally competent to proceed. In

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2000, the trial court conducted an evidentiary hearing on the original Rule 35(c)

motion and denied it on the merits. In 2001, the Colorado Court of Appeals

affirmed the trial court, and on April 29, 2002, the C olorado Supreme Court

denied M r. Pierce’s petition for a writ of certiorari.

      On August 12, 2002, M r. Pierce filed a timely petition under 28 U.S.C. §

2254, alleging five errors related to his plea bargain:

      1. violations of his Fifth, Sixth and Fourteenth Amendment rights when the

trial judge, prosecuting attorney and defense counsel failed to properly investigate

his mental state of mind before he entered the plea bargain,

      2. denial of the right to effective assistance of counsel when counsel failed

to (a) investigate the case, (b) secure expert testimony, (c) request evaluation of

his mental state, and (d) when trial counsel functioned as a “third arm” for the

prosecution,

      3. denial of his constitutional rights when the trial court failed to determine

that his guilty pleas were knowingly, voluntarily, and intelligently made,

      4. violation of his right to due process when the prosecution (a) failed to

follow the provisions of the plea agreement, (b) failed to inquire into his mental

functioning, and (c) when the prosecution coerced him into pleading guilty, and

      5. denial of constitutional rights when the trial court denied him (a) counsel

in his postconviction hearings, and (b) the right to testify due to the refusal to

appoint advisory counsel.

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      The state argued that M r. Pierce did not exhaust his final claim. The

magistrate judge recommended dismissal of each of the above claims, and

recommended the denial of habeas relief. He found the fifth claim meritless and

dismissed it w ithout reference to exhaustion. See Moore v. Schoeman, 288 F.3d

1231, 1232 (10th Cir. 2002).

      The district court adopted the magistrate judge’s report and

recommendation, and denied M r. Pierce’s application for a certificate of

appealability. M r. Pierce can only prevail on those claims in this federal habeas

proceeding if he can demonstrate that the state court’s ruling, rejecting each of his

claims, 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). For substantially the same reasons provided in the magistrate judge’s

thorough and well-reasoned report and recommendation, we reject M r. Pierce’s

arguments.



                                  II. DISCUSSION

      “[U]ntil a COA has been issued, federal courts of appeals lack jurisdiction

to rule on the merits of appeals for habeas petitioners.” M iller-El v. Cockrell, 537

U.S. 322, 336 (2003). A COA can issue only “if the applicant has made a

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

2253(c)(2). To do so, he must demonstrate “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 and citation omitted).

      M r. Pierce raises the same five issues before us. First, as to the failure to

investigate M r. Pierce’s competency when he pleaded guilty, the state courts

reviewed evaluations from two psychiatrists and a neurologist, who found no

concerns about M r. Pierce’s mental condition. Second, M r. Pierce cannot

establish ineffective assistance of counsel. “[T]he two-part Strickland v.

Washington, [466 U.S. 668, 687 (1984)] test applies to challenges to guilty pleas

based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985). “[T]o satisfy the ‘prejudice’ requirement, the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Id. at 59. W e agree

with the magistrate judge’s recommendation that, “[g]iven the strength of the

government’s case against [M r. Pierce], to include the unsuppressed confession

and testimony of witnesses, the seriousness of the crimes with which [M r. Pierce]

was charged, and the success at negotiating a plea agreement that significantly

limited [his] exposure under the charges, there is no reasonable probability that

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[M r. Pierce] would have insisted on going to trial.” Rec. vol. I, doc. 27, at 14

(R ecommendation for D ismissal, filed July 2, 2003).

      Third, the trial court did inquire as to whether M r. Pierce’s plea bargain

was knowing, intelligent, and voluntary, as evidenced in the plea colloquy. As to

M r. Pierce’s fourth contention, alleging prosecutorial misconduct, the plea

agreement does not specify that the government was obliged to approach M r.

Pierce with respect to the prosecution of other involved parties. Similarly, the

record does not support M r. Pierce’s allegations regarding coercion and failure to

inquire into his mental state. Finally, we agree that there is no constitutional

requirement for the appointment of counsel in postconviction collateral

proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). As such, M r.

Pierce has failed to raise a constitutional question.

      W e have carefully reviewed M r. Pierce’s brief, the magistrate judge’s

report and recommendation, district court’s disposition, and the record on appeal.

Nothing in the record on appeal or M r. Pierce’s filings raises an issue which

meets our standards for the grant of a CO A. For substantially the same reasons as

set forth by the district court and magistrate judge, we cannot say that M r. Pierce

“has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2).

                                 III. CONCLUSION

      W e D EN Y Mr. Pierce’s request for a certificate of appealability, GRAN T

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his motion to proceed IFP, and DISM ISS the matter.


                                            Entered for the Court,

                                            Robert H. Henry
                                            Circuit Judge




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