                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 4, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ROBERT LESTER HAMMONS,

               Petitioner - Appellant,                   No. 09-2284
          v.                                           (D. New Mexico)
 JERRY PASKIEWICZ,                           (D.C. No. 08-CV-00716-MV-WDS)

               Respondent - Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      Petitioner and appellant, Robert Lester Hammons, seeks a certificate of

appealability (“COA”), to enable him to appeal the district court’s order




      *
       This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
dismissing Mr. Hammons’ 28 U.S.C. § 2254 petition for a writ of habeas corpus.

For the following reasons, we deny Mr. Hammons a COA and dismiss this matter.



                                 BACKGROUND

      On October 9, 2001, Mr. Hammons pled no contest in New Mexico state

court to two counts of felony false imprisonment, one count of felony aggravated

assault, and one count of misdemeanor aggravated battery against a family

member. He was sentenced to probation, but his probation was later revoked and

he spent the remainder of his state sentence in state custody. Mr. Hammons did

not file a direct appeal of his state conviction or sentence. His sentence

terminated on August 21, 2005.

      In June of 2007, Mr. Hammons was charged in federal court with being a

felon in possession of a firearm and ammunition, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2), as well as possession of a stolen firearm, in violation

of 18 U.S.C. §§ 922(j) and 924(a)(2). Pursuant to the Armed Career Criminal Act

(“ACCA”), Mr. Hammons is subject to a mandatory fifteen-year sentence,

because of his underlying convictions for false imprisonment and aggravated

assault.

      On April 17, 2008, Mr. Hammons filed a pro se petition for a writ of

habeas corpus, in which he claimed that his guilty plea in his state court

proceeding had been involuntary, due to ineffective assistance of counsel. His

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petition was summarily denied. Mr. Hammons filed a petition for a writ of

certiorari with the New Mexico Supreme Court, which was denied in June 2008.

He filed the instant petition on July 31, 2008. In this most recent petition,

Mr. Hammons argued that he was innocent of the charges to which he pled guilty

in state court, and that his involuntary plea was the result of ineffective assistance

of his trial counsel. He further requested an evidentiary hearing so he could

establish the facts underlying his claims.

      The district court referred the matter to a Magistrate Judge, who

recommended dismissal for lack of jurisdiction because Mr. Hammons was not

“in custody” for the state convictions which were the subject of the federal habeas

petition, and because the petition was time-barred because it was filed well over

one year after Mr. Hammons’ state court conviction became final. The district

court entered an order adopting the magistrate judge’s report, concluding that

Mr. Hammons’ habeas petition was subject to dismissal for lack of jurisdiction

and because it was time-barred. This application for a COA followed.



                                   DISCUSSION

      Seeking a COA, Mr. Hammons argues: (1) the district court erroneously

adopted a per se rule rejecting any claim that a guilty plea was involuntary so

long as the petitioner stated he was pleading guilty voluntarily in the plea

colloquy; (2) Mr. Hammons’ petition falls within two recognized exceptions to

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the “in custody” requirement, in that (a) he was essentially denied the assistance

of counsel at all; and (b) “there was no effective channel of review of Mr.

Hammons’ convictions”; and (3) his petition is not time-barred because the one-

year limitation of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

“should be considered to run in this case from the date Mr. Hammons learned of

the serious federal consequence of his state convictions.” Appellant’s Op. Br. at

8. We reject all of these arguments, deny Mr. Hammons a COA, and dismiss this

matter.

      In order to obtain a COA, Mr. Hammons must make a “substantial showing

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

where the district court has rejected the constitutional claims on the merits, the

“petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). When the district court dismisses the petition on

procedural grounds, the applicant must not only make a substantial showing of the

denial of a constitutional right; he must also demonstrate the district court’s

“dismissal on procedural grounds was debatable or incorrect.” Id. at 485.

      Mr. Hammons has failed to show the denial of a constitutional right, nor

has he shown that the district court erred in its procedural ruling, let alone that

reasonable jurists would debate the correctness of its rulings.




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      I. Plea Colloquy:

      Mr. Hammons argues that, in rejecting his claim that he was effectively

denied the benefit of counsel, “the district court relied on his plea hearing

responses,” and erroneously created “a per se rule . . . that Mr. Hammons’ plea

colloquy responses foreclose relief for deprivation of his right to effective

assistance of counsel.” Appellant’s Op. Br. at 13. The district court did not

create any such per se rule. We find no error in the district court’s observation

that “[n]umerous courts have denied relief under §§ 2254 and 2255 to petitioners

alleging that their guilty pleas were the product of ineffective assistance, where

the plea colloquies have demonstrated otherwise.” Order at 4, R. Vol. I at 273

(citing Fields v. Gibson, 277 F.3d 1203, 1214 (10th Cir. 2002)). Indeed, in Fields

we emphasized the importance of plea colloquies: “This colloquy between a

judge and a defendant before accepting a guilty plea is not pro forma and without

legal significance. Rather, it is an important safeguard that protects defendants

from incompetent counsel or misunderstandings.” Fields, 277 F.3d at 1214. Our

review of the record in this case, including the transcript of the plea colloquy,

convinces us that Mr. Hammons’ guilty plea was freely given, and not the product

of coercion by anyone.

      II. “Exceptions” to In Custody Requirement:

      Mr. Hammons summarizes his argument concerning his claim that his case

falls within either of two “rare” exceptions to the jurisdictional requirement that a

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habeas petitioner must be “in custody” to pursue his habeas claim as follows:

“this is the ‘rare’ case . . . that warrants consideration of Mr. Hammons’

constitutional claims in light of, first, his entry of an involuntary plea because he

lacked the benefit of counsel to advocate on his behalf and, second, the state’s

effective refusal to review Mr. Hammons’ Sixth Amendment claims.” Appellant’s

Op. Br. at 10. We have already explained that we do not find that Mr. Hammons’

guilty plea was involuntary, nor do we perceive that Mr. Hammons’ attorney was

ineffective in any way. Similarly, our review of the record and arguments in this

case demonstrates that the state did not refuse to review Mr. Hammons’ Sixth

Amendment rights. Reasonable jurists would not find the district court’s

assessment of the constitutional claims either debatable or wrong.

      III. One-Year Statute of Limitation:

      Finally, Mr. Hammons argues that he should be able to file his habeas

petition long after the one-year statute of limitations has run, because he “was not

alerted to the potential federal consequences of his state court plea at the time he

entered it.” Appellant’s Op. Br. at 19. The Supreme Court in Daniels v. United

States, 532 U.S. 374 (2001), cautioned about the dangers of ignoring such statutes

of limitations:

      Were we to allow defendants sentenced under the ACCA to
      collaterally attack prior convictions through a [habeas] motion, we
      would effectively permit challenges far too stale to be brought in
      their own right, and sanction an end run around statutes of limitation
      and other procedural barriers that would preclude the movant from

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      attacking the prior conviction directly. Nothing in the Constitution
      or our precedent requires such a result.

Id. at 383. We accordingly agree with the district court that Mr. Hammons’

petition is properly dismissed.



                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. Hammons a COA and DISMISS

this matter.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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