UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MARQESE LYNN PAYNE, Petitioner - Appellant,

v. JANET DOWLING, Warden, Respondent - Appellee. Nos. 18-5106, 18-5118 (D.C. No. 4:17-CV -00151-JHP-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before HOLMES , MURPHY , and CARSON , Circuit Judges.

________________ _________________ Petitioner Marqese Payne, an Okla homa state prisoner appearing pro se, seeks a Certificate of App ealability (“COA”) to c hallenge the distric t court’s denial of his 28 U.S.C. § 2254 petition for po st-conviction relief. He also seeks to proceed in forma pauperis in Case No. 18- 5118. We deny both Petitioner’s request for a COA and his request to pro ceed in forma pauperis.
I. Petitioner entered blind guilty p leas—i.e., pleas of guilty wit hout an agreement on a specific sentence—to four c harges: (1) first degree arson, (2) possession of a

* The case is therefore ordered submitted without oral argument. This order is not binding precedent, except unde r the doctrines of law of the case, res judicata, and collateral estoppel. It may be c ited, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 8, 2019
Elisabeth A. Shumaker Clerk of Court2 firearm, and (3) second degree burglary, all after former convi ctions of two or more felonies, and (4) reckless conduct with firearms, a misdemeanor . The state trial court accepted Petitioner’s guilty pleas and imposed prison sentences of twenty years, three years, seven years, and six mont hs, respectively, with all sent ences to be served concurrently. The trial court al so imposed a $25, 000 fine agai nst Petitioner on the first degree arson charge. Petitioner filed a petition for wr it of certiorari in the Oklah oma Court of Criminal Appeals (“OCCA”). The O CCA denied the writ of certior ari but lowered Petitioner’s first degree arson fine to $10,000. Petitioner then sought habeas relie f in federal d istrict court under 28 U.S.C. § 2254 because (1) his guilty ple as were not knowing, intellige nt, and voluntary and (2) he was denied effective as sistance of counsel. The distric t court denied Petitioner habeas relief. Petitioner next filed a motion to alter or amend the judgment u nder Federal Rule of Civil Procedure (“Rule”) 59(e). The district court con strued the motion as a second or successive § 2254 petiti on and denied the motion and a COA. Petitioner filed a notice of appeal (Case No. 18-5106). 2
At the same time Petitioner fi led the first notice of appeal, h e filed another Rule 59(e) motion asking the di strict court to reconsider its f inding that his initial Rule 59(e) motion was a second or successive § 2254 petition. The district court

2 The district court granted Petit ioner in forma pauperis status in Case No. 18- 5106.3 denied Petitioner’s second Rule 59(e) motion after concluding i t was a true Rule 59(e) motion and denied a COA. P etitioner then filed a second notice of appeal (Case No. 18-5118). 3
II. Under the Antiterrorism and Effec tive Death Penalty Act (“AEDPA ”), “[w]e will issue a COA ‘only if the a pplicant has made a substantial showing of the denial of a constitutional right.’” A llen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting 28 U.S.C. § 2253(c)(2 )). Under this standard, “the ap plicant must show ‘that reasonable jurists could de bate whether (or, for that mat ter, agree that) the petition should have been resolved in a different manner or tha t the issues presented were adequate to deserve encour agement to proceed further.’” U nited States v. Taylor, 454 F.3d 1075, 1078 (10t h Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Dockins v.Hines, 374 F.3d 9 35, 938 (10th Cir. 2004) (“AEDPA’s deferential treatment of state court decisions must b e incorporated into our consideration of a habeas pe titioner’s request for COA.”). Our “inquiry does not require [a] full consideration of the factual or legal bases ad duced in support of the claims,” but rather “an overvie w of the claims” and “a general assessment of their merits.” Miller-El v. Cockre ll, 537 U.S. 322, 336 (2003). Under AEDPA, we may grant an a pplication for a writ of habeas c orpus on behalf of an individual in state custody on a claim that was ad judicated on the merits

3 Petitioner seeks to proceed in forma paupe ris in Case No. 18-5 118.4 in state court only if the state court’s decision “was contrary to, or involved an unreasonable application of, clear ly established Federal law, a s determined by the Supreme Court of the United Stat es” or “was based on an unreaso nable determination of the facts in light of the evid ence presented in the State co urt proceeding.” 28 U.S.C. § 2254(d)(1)(2).
III.
A. Petitioner argues that his guilty pleas were not voluntary for three reasons. First, he argues that no one expl ained to him the concept of a blind guilty plea. Second, Petitioner believed the t rial court would sentence him to mental health court or probation in exchange for his plea. Finally, h e claims he w as on medication when he entered his pleas and that the district court thus had a dut y to inquire into his competency at that time. “On review, a federal court may set aside a state court guilty plea only for failure to satisfy due process.” Cunningham v. Diesslin, 92 F. 3d 1054, 1060 (10th Cir. 1996). To satisfy due proce ss, a guilty plea must be know ing, intelligent, and voluntary. Boykin v. Alabama , 395 U.S. 238, 241–43 (1969). To be a knowing and intelligent plea, “[t]he defenda nt need not understand every co llateral consequence of the plea, but need only unders tand its direct consequences.” U nited States v. Hurlich, 293 F.3d 1223, 1230 ( 10th Cir. 2002). To be voluntary, the dec ision to plead guilty must be the defendant’s decision. See Fields v. Gibson, 277 F.3d 1203, 1213 (10th Cir. 2002) (explaining that a ple a may be involuntary if counse l “materially5 misinforms the defendant of th e consequences of the plea” (quot ing United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990))); United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988) (“[ C]oercion by the accused’s couns el can render a plea involuntary.”). Petitioner alleges his pleas were “involuntary” 4 because no one explained to him the concept of a blind plea a nd he believed the trial court would sentence him to mental health court or probation in exchange for his guilty ple as. The OCCA determined Petitioner “understo od the blind plea and was not le d to believe he would be sentenced to mental health c ourt or probation.” The OCCA ex plained that “the record shows that the trial court clearly explained that senten cing would be determined by the court after a pre-sentencing investigation.” The OCCA also referenced Petitioner’s plea c ounsel’s testimony that Petitione r indicated he understood the blind plea and wa s not led to believe he would b e sentenced to mental health court or probation. On th at basis, the OCCA denied reli ef. The district court construed Pe titioner’s claim liberally as a challenge to the factual foundation of the OCCA’s d ecision. The district court further construed Petitioner’s application as ar guing that the O CCA unreasonably applied the law from Brady v. United States, 397 U.S . 742 (1970), which describes ch aracteristics of an intelligently made plea, and Bo ykin v. Alabama, 395 U.S. 238 (1 969), which requires

4 On appeal, Petitioner challenge s only the voluntariness of the pleas, not whether they were knowing or intelligent.6 an affirmative record that a pl ea is entered voluntarily and in telligently. After a thorough analysis of the factua l underpinnings and legal applic ation of the OCCA’s decision, the district court conc luded that the state court rec ord supports the OCCA’s determination that Petitioner’s pleas were knowing and voluntar y. Petitioner again contends that th e trial court never explained “that a blind plea meant that there was no agreemen t with the state for a specific sentence.” This, Petitioner claims, rendered his plea invalid. Petitioner now a ppears to argue that the trial court violated clearly est ablished federal law, as determ ined by the Supreme Court under Boykin and Santobe llo v. New York, 404 U.S. 257 (19 71). 5 With respect to Boykin, the distr ict court explained that the O CCA identified the correct legal principle gui ding its review of Petitioner’s due process claims. The OCCA relied on Cox v. State, 152 P.3d 244 (Okla. Crim. App. 200 6), which applied Boykin to determine whether the defendant entered the plea volu ntarily and intelligently. Id. a t 255 (citing Boykin, 395 U.S. at 243), ov erruled on other grounds, State v. Vincent, 371 P.3d 1127, 1130 (Okla. Crim. App. 2016). When “a run-of-the-mill state-c ourt decision appl[ies] the corr ect legal rule from [Supreme Court] cases to th e facts of a prisoner’s case,” that application does

5 While liberally construing Pe titioner’s pro se brief, we do no t read it as alleging an unreasonable determin ation of the facts. In briefi ng, Petitioner concedes that the trial court explained multiple times what a blind plea entails. His argument now is limited to the quality of the trial court’s description of a blind plea. Petitioner contends that because the trial court did not fully explain tha t there was no agreement for a specific senten ce, his plea was involuntary. Accordingly , our analysis, unlike the district court’s, is limited to Petitioner’s allegations of legal error on this claim.7 “not fit comfortably within § 225 4(d)(1)’s ‘contrary to’ clause .” Williams v. Taylor, 529 U.S. 362, 406 (2000). Here , the OCCA cited the correct law . It then discussed the factual basis for its finding that Petitioner entered his p lea voluntarily. 6 Thus, the district court correctly reasone d that Petitioner cannot demons trate that the OCCA’s decision was “contrary to” clear ly established Supreme Court la w. The district court did not discu ss the application of Santobell o to Petitioner’s claims. 7 Santobello discusses the effect of a failed promise by the pr osecutor on a guilty plea. Santobello, 404 U.S . at 262. The Court explained : This phase of the process of cri minal justice, and the adjudica tive element inherent in accepting a plea of guilty, must be attended by saf eguards to insure the defendant what is rea sonably due in the circumstance s. Those circumstances will vary, but a c onstant factor is that when a p lea rests in any significant degree on a promis e or agreement of the prosecu tor, so that it can be said to be part of the inducement or considerati on, such promise must be fulfilled. A blind plea, however, “is a ple a in which there is no binding agreement on sentencing, and punishment is left to the judge’s discretion.” Medlock v. State, 887 P.2d 1333, 1337 n.2 (Okla. Cri m. App. 1994). Thus, Santobello is inapplicable to

6 The OCCA acknowledged Petitioner’s claim that he believed he w ould receive mental health court or p robation when he entered his pl ea. Yet, the OCCA found that the trial court clear ly explained that sentencing wo uld be determined by the trial court after a pre-sent encing investigation. It furth er credited plea counsel’s testimony that Petitioner unders tood the blind plea and was not mislead about the possibility of mental health cour t or probation. The OCCA then denied Petitioner relief on that claim.

7 Petitioner raised this case as g rounds for relief in his appea l to the OCCA, which he incorporated into his habeas application. Accordingly , we conclude he did not abandon this argument.8 Petitioner’s case. Accordingly, t he OCCA did not unreasonably apply clearly established federal law, and Pe titioner is not entitled to habe as relief on that basis. Petitioner also argues that he believed he would receive menta l health court or probation in exchange for his p lea. However, Petitioner’s subj ective belief regarding the sentence he might receive is insufficient to r ender his plea invalid. See Cunningham v. Diesslin, 92 F.3d 1054, 1061 (10th Cir. 1996) (“A defendant’s subjective understanding that he will serve less than one-half of his senten ce, if it is not based upon any promise made by the defense attorney, the pr osecutor, or the court, will not undermine the constitutionality of the plea”). Finally, Petitioner argues his p leas were not voluntary because he was on medication that affected his abi lity to understand the proceedi ngs. With respect to this claim, we construe Petiti oner’s brief as alleging an unrea sonable determination of the facts and an unreasonable application of federal law. W e first discuss the factual issue. The trial court and OCCA found t hat Petitioner was competent to enter his plea, and the district court dete rmined this finding was reason able. The district court determined that Petitioner signe d a plea form before pleading g uilty. Subsequently during the plea hearing, Petitione r advised the trial court, co nsistent with his answer on the plea form, that he was ta king medications. The trial co urt then inquired into Petitioner’s competency. THE COURT: Sir, are you curren tly taking any medications or substances which affect your a bility to understand these procee dings?9 PETITIONER: Medications, Sir. THE COURT: What medications do you take—but can you understand what’s going on here today? PETITIONER: Sir, yes, sir.

. . . THE COURT: All right. And, Couns el, do you find that Mr. Payne is competent to enter a plea today? MR. WASS [Petitioner’s plea co unsel]: I do, Your Honor. THE COURT: Is that based on your multiple conversations with hi m?
MR. WASS: Yes. THE COURT: All right. And, Mr. Payne, were you able to review the Information or charges against you? PETITIONER: Sir, yes, sir. THE COURT: And did you unde rstand those charges? PETITIONER: Sir, yes, sir. Following this exchange, the tri al court accepted Petitioner’s pleas. On this record, the OCCA also found that Petitioner was competent to en ter the pleas. The district court concluded thes e findings were reasonable. State court findings are presume d correct absent clear and conv incing evidence to the contrary. 28 U.S.C. § 225 4(e)(1). Here, no evidence ex ists other than Petitioner’s after-the-fact asser tion that his medication affec ted his competency to enter the plea. That assertion , however, is contradicted by Pe titioner’s own10 statements to the trial court a nd the trial court’s and OCCA’s factual findings. Accordingly, the state court re asonably determined Petitioner’s competency. Apart from Petitioner’s factua l contentions, he argues that th e trial court should have inquired into the type and effects of the medicatio n he was on prior to finding him competent to enter a plea. Petitioner claims this was contrary to clearly established federal law. Petitio ner, however, did not raise hi s theory in his initial § 2254 habeas applica tion to the district court. Because Petit ioner did not raise that potential merits argument before the district court, we will no t consider it. Harmon v. Sharp, 936 F.3d 10 44 (10th Cir. 2019).
B. Petitioner alleges his plea counsel —Benjamin Wass—was ineffecti ve for not adequately explaining the conse quences of entering a blind plea . Had he known the actual range of punishment, Petiti oner claims he would have pro ceeded with trial. A defendant has a constitutional right to “the effective assist ance of competent counsel” during plea and plea w ithdrawal proceedings. Padilla v. Kentucky, 559 U.S. 356, 364, 373 (2010). To pr evail on an ineffective assist ance of counsel claim, a defendant must show (1) his cou nsel’s performance was deficie nt and (2) the deficient performance was prejudi cial. Strickland v. Washingto n, 466 U.S. 668, 687 (1984); see Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding “that the two -part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel ”). To satisfy the first pron g of Strickland, a defendant must overcome the stro ng presumption that his counsel acted within the11 wide range of reasonable profes sional assistance and show couns el’s actions were “completely unreasonable, not m erely wrong.” Fields, 277 F.3d at 1215. As to the second prong, in the context of a guilty plea, a defendant can show prejudice by demonstrating “there is a reas onable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59. A defendant’s mere allegation th at he would have insisted on go ing to trial is insufficient to establish prejudi ce. Miller v. Champion, 262 F .3d 1066, 1072 (10th Cir. 2001). Rather, “to establish prejudice based on counsel’s failure to advise his client of certain consequences o f a guilty plea, a defendant ‘m ust convince the court that a decision to reject the pl ea bargain would have been rati onal under the circumstances.’” Bonney v. Wils on, 754 F.3d 872, 884 (10th Cir . 2014) (emphasis omitted) (quoting Pad illa, 559 U.S. at 372). The OCCA’s decision simply state d that it reviewed Petitioner’ s claim under Strickland and found no basis fo r relief. But when a state cou rt applies the correct federal law to deny relief, the s ole question for a federal hab eas court is whether the state court applied the law “i n an objectively unreasonable man ner.” Bell v. Cone, 535 U.S. 685, 699 (2002); see also Harrington v. Richter, 562 U.S. 86, 101 (2011) (“The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whethe r defense counsel’s performance fell below Strickla nd’s standard.”). This is true even when the state court fails to explain its reas ons for rejecting a constitution al claim. Harrington, 56212 U.S. at 98 (“Where a state cour t’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there w as no reasonable basis for the state court to deny relief.”). The district court determined t hat Petitioner’s ineffective-ass istance-of-counsel claims were simply a r epackaging of the same arguments he prese nted in support of his due process claims. On that g round, the district court con cluded that Petitioner had not shown the OCCA applied the la w in an objectively unreasonab le manner. Petitioner still has not made the requisite showing. Petitione r’s only argument is that had he known the conseque nces of entering a blind guilty p lea, he would have proceeded to trial. This mere a llegation, however, is not enou gh. Miller, 262 F.3d at 1072 (“[A] petitioner’s ‘mere alle gation’ that he would have in sisted on trial but for his counsel’s errors, although necess ary, is ultimately insufficien t to entitle him to relief.”). Accordingly, no reasonable juri sts could debate the OCCA’s reso lution of Petitioner’s ineffective assistance of counsel claim. Slack, 529 U.S. at 48 4.
C. Petitioner argues that the distr ict court abused its discretio n by treating his first Rule 59(e) motion to alter or a mend the judgment as a second or successive habeas petition. Ordinarily, to obtain relief under Rule 59(e), the m ovant must demonstrate (1) an intervening change in th e controlling law, (2) new evide nce previously unavailable, or (3) the need to correct clear error or prevent manifest injustice. Servants of Paraclete v. Does, 2 04 F.3d 1005, 1012 (10th Cir. 2 000). When a habeas petitioner files a Rule 59(e) mot ion, however, the court must f irst determine whether13 the motion is a “true” Rule 59(e) motion or whether the motion should be treated as a second or successive habeas pet ition. See Spitznas v. Boone, 4 64 F.3d 1213, 1215– 16 (10th Cir. 2006) (holding that “a 60(b) motion is a second o r successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying c onviction,” as opposed to a “true” Rul e 60(b) motion, which “(1) challenges only a procedur al ruling of the habeas court . . . or (2) challenges a defect in the integrity of the f ederal habeas proceeding”) (cit ing Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005)); see also United States v. Pedr aza, 466 F.3d 932, 933 (10th Cir. 2006) ( holding that Rule 59(e) motions are subje ct to the same treatment as Rule 60(b) m otions under Spitznas). A Rule 59(e) motion challenging either a procedural ruling of the habeas court or a defect in the integrity of the habeas proceeding is a “tru e” Rule 59(e) motion. Spitznas, 464 F.3d at 1215-16. In contrast, when a Rule 59(e) motion “in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction [the motion] is . . . a second or successive habeas petition.” Pedraza, 466 F.3d at 933 (internal quotation marks omitted). “The distincti on is important because [28 U.S.C.] § 2255(h) d eprives a district court of jurisdiction over uncertified second or successive habeas petitions.” United States v. Williams, 79 0 F.3d 1059, 1068 (10th Cir. 2015). Petitioner’s first Rule 59(e) m otion argued that he is entitle d to relief because his pleas were not knowing and vo luntary because he told the tr ial court during the plea hearing that he was taking medication, the trial court did not further inquire14 about the type and effects of the medication, and the trial cou rt accepted his counsel’s representation that he was comp etent to enter his pleas. The district court treated the motion as a second or successive petition under § 2254 and dismissed it for lack of jurisdiction. That charact erization is correct. The Rule 59(e) motion did not assert a procedural defect affecting the district court’s resolution of Petitioner’s initi al § 2254 petition. Spitznas, 464 F.3d at 1215–16. Instead, it reargued and expanded upon the substa ntive challeng es to Petitioner’s underlying claim. As such, it is not a “true” motion to alter or amend judgment under Rule 59(e). See id. Thus, the district court’s conclusio n that Petitioner’s Rule 59(e) motion was not a true moti on to alter or amend judgment, but was instead a successive petition under § 2254 ove r which it lacked jurisdict ion, is not subject to debate. Slack, 529 U.S. at 484. A ccordingly, we agree with th e district court that Petitioner provided the district court with no support for reve rsing its decision about the status of the first Rule 59( e) motion as a successive § 225 4 petition.15 IV. For the reasons set forth above , we deny Petitioner’s applicati on for a COA. 8

Entered for the Court

Joel M. Carson III Circuit Judge

8 Because Petitioner fails to pr esent any reas oned, nonfrivolous argument to support his appeal of his Rule 59(e) motion (Case No. 18-5118), we conclude that Petitioner’s appeal lac ked good faith. See C oppedge v. United States, 369 U.S. 438, 444 (1962). Accordingly, we deny in forma pauperis status in t hat case.