                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 11, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 PATRICK M ICH AEL O ’NEILL,

              Petitioner - A ppellant,                   No. 06-3401
       v.                                                   D. Kan.
 LOUIS E. BRUCE, W arden,                        (D.C. No. 06-CV -3062-JW L)
 Hutchinson Correctional Facility;
 Attorney General of Kansas,

              Respondents - Appellees.



                   OR D ER D ENYING APPLICATION FOR
                    C ER TIFIC ATE OF APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Patrick M . O’Neill (O’Neill) pled no contest to one count of sexual

intercourse with a child under the age of 14 pursuant to Kan. Stat. Ann. § 21-

3502. He was eventually sentenced to 155 months imprisonment. Subsequently,

he filed motions attempting to withdraw his plea based on, inter alia, ineffective

assistance of counsel and newly discovered evidence. O’Neill exhausted his

claims at the state court level; the trial court’s well-reasoned decisions were

upheld by the Kansas Court of Appeals on tw o separate occasions.
      O’Neill, appearing pro se, 1 brought this 28 U.S.C. § 2254 petition for a writ

of habeas corpus on M arch 1, 2006.    The district court accurately summarized the

numerous claims made by O’Neill: 1) ineffective assistance of counsel; 2) error

by the trial court in denying his motion to withdraw his no contest plea; 3)

withholding exculpatory evidence in violation of Brady v. M aryland, 373 U.S. 83

(1963); and 4) violation of his rights under M iranda v. Arizona, 384 U.S. 436

(1996).

      O’Neill’s habeas petition was denied in district court as was his application

for certificate of appealability (COA). He also moved for appointment of counsel

and to proceed in form a pauperis (ifp). The district court found “no basis to

appoint counsel in this matter” but granted O’Neill ifp status pursuant to Rule

9.1(g) of the U nited States Court for the D istrict of Kansas. (R. Doc. 28 at 2.)

      O’Neill renew s his application for COA in this Court. See 28 U.S.C.

§ 2253(c)(1)(A ); F ED . R. A PP . P. 22(b)(1). A COA is a jurisdictional prerequisite

to our review. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003). W e will issue a

COA only if O’Neill makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make this show ing, he must

establish “reasonable jurists could debate whether . . . the petition should have

been resolved [by the district court] in a different manner or that the issues



      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

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presented were adequate to deserve encouragement to proceed further.” Slack v.

M cDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted).

      The district court reviewed O’Neill’s ineffective assistance of counsel

claim against the two-prong test set out in Strickland v. W ashington, 466 U.S. 688

(1984) and found no error. After thorough analysis it also rejected his claims

regarding his motion to withdraw his guilty plea, concluding portions related

solely to state law, while the remainder were without merit. His Brady claim was

not supported by the record and the M iranda claim was procedurally barred.

      W e have reviewed O’Neill’s arguments and we agree with the district

court: “the evidence clearly establishes M r. O’Neill is entitled to no relief.” (R.

Doc. 18 at 1.) W e D EN Y O’Neill’s application for a COA and DISM ISS the

appeal. O’Neill’s letter to this Court requesting counsel is construed as a motion

for appointment of counsel and is DENIED as moot.

                                        FOR TH E CO UR T:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




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