FILED

United States Court of Appeals

Tenth Circuit

October 11, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK MICHAEL O’NEILL,

Petitioner - Appellant, No. 06-3401

v. D. Kan.

LOUIS E. BRUCE, Warden,

Hutchinson Correctional Facility;

Attorney General of Kansas,

Respondents - Appellees.

(D.C. No. 06-CV-3062-JWL)

ORDER DENYING APPLICATION FOR 

CERTIFICATE OF APPEALABILITY

Before KELLY, MURPHY, 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 two separate occasions. 
 Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, 1

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

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O’Neill, appearing pro se, brought this 28 U.S.C. § 2254 petition for a writ 1

of habeas corpus on March 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. Maryland, 373 U.S. 83

(1963); and 4) violation of his rights under Miranda 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 forma 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 United States Court for the District of Kansas. (R. Doc. 28 at 2.) 

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

§ 2253(c)(1)(A); FED. R. APP. P. 22(b)(1). A COA is a jurisdictional prerequisite

to our review. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We 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 showing, 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
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presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 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. Washington, 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 Miranda claim was procedurally barred. 

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

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

Doc. 18 at 1.) We DENY O’Neill’s application for a COA and DISMISS 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 THE COURT:

Terrence L. O’Brien

United States Circuit Judge