McGoldrick v. McKune, 10th Cir. (2006)
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Scribd Government DocsF I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
September 13, 2006
Elisabeth A. Shumaker
Clerk of Court
B RIA N J. M cG O LD RIC K,
Petitioner - A ppellant,
v.
DAVID R. M cKUNE, W arden,
Lansing Correctional Facility,
No. 06-3221
(D. Kansas)
(D.C. No. 05-CV-3288-JTM )
Respondent - Appellee.
OR DER DENY ING A CERTIFICATE O F APPEALABILITY
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
Brian J. M cGoldrick is a Kansas state prisoner currently serving 412
months imprisonment on state convictions for one count of aggravated robbery,
nine counts of robbery, and one count of possession of cocaine. On June 27,
2005, M r. M cGoldrick filed an application for a writ of habeas corpus under 28
U.S.C. 2254 in the United States D istrict Court for the D istrict of Kansas. In
his application M r. M cGoldrick alleged that (1) the sentencing court violated his
constitutional rights by imposing a sentence greater than the 194 months
recommended in the plea agreement; (2) the state violated his due-process rights
by failing to recommend a sentence of 194 months imprisonment as it agreed to
do in his plea agreement; (3) there was insufficient evidence to support his
robbery convictions; (4) his conviction on two of the robbery counts was
unconstitutional because the wrong victims were alleged; and (5) he received
ineffective assistance of counsel at trial and on appeal. These arguments were
previously raised before the Kansas state courts in M r. M cG oldricks
postconviction motion attacking his sentence. On M ay 10, 2006, the district court
denied M r. M cGoldricks application; and on July 5, it denied him a certificate of
appealability (COA), see 28 U .S.C. 2253(c)(1) (requiring a COA to appeal the
denial of a motion under 2254). M r. M cGoldrick now seeks a COA from this
court to appeal the district courts denial of his 2254 application. W e deny a
COA and dismiss the appeal.
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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district courts resolution of the constitutional claim was either
debatable or wrong. Id.
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The A ntiterrorism and Effective D eath Penalty Act of 1996 (AEDPA),
provides that when a claim has been adjudicated on the merits in state court, a
federal court will grant habeas relief only when 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).
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 [Supreme] Court has on a set of materially indistinguishable
facts. Under the unreasonable application clause, relief is provided
only if the state court identifies the correct governing legal principle
from the Supreme Courts decisions but unreasonably applies that
principle to the facts of the prisoners case. Thus we may not issue a
habeas writ simply because we conclude in our independent judgment
that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks
and citations omitted). AEDPA s deferential treatment of state court decisions
must be incorporated into our consideration of a habeas petitioners request for
COA Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
W e have carefully considered M r. M cG oldricks pleadings and the record
before us. No reasonable jurist could disagree with the district courts thorough
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and well-reasoned resolution of the issues. Therefore, we DENY a COA and
DISM ISS M r. M cGoldricks appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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