## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
THOMAS RICHARD BARRON,

Petitioner-Appellant, No. 04-6144
v. (W.D. Oklahoma) RON WARD,

Respondent-Appellee. (D.C. No. CIV-03-1051-R)

ORDER

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.
Thomas Richard Barron, a state prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the de nial of his 28 U.S.C. § 2254 petition for habeas corpus. Mr. Barron also seeks to proceed in forma pauperis. We deny his request for a COA and dismiss this matt er.

I. BACKGROUND In August 2001, Mr. Barron pleaded guilty in Oklaho ma state court to one count of possession of a controlled dangerous subst ance within 1,000 feet of a school and one count of manufacturing a controlled dangerous substance. Mr. Barron was sentenced to consecutive terms of twentyyears’ imprisonment for-2-

each count and fined $50,000. The trial court deni ed his motion to withdraw his plea in October 2001, and the Oklahoma Court of Cri minal Appeals (“OCCA”) later denied certiorari. In April 2002, Mr. Barronfiled his § 2254 petition in federal district court. He alleged (1) involuntari ness of his guilty plea in violation of the right to a fair trial under the Fifth, Sixth , Eighth and Fourteenth Amendments, (2) ineffective assistance of counsel i n violation of the Sixth Amendment, and (3) erroneous denial of his motion t o withdraw his guilty plea in violation of the Fifth, Sixth, Eighth and Fourteent h Amendments. Following the magistrate judge’s recommendations, the district co urt denied Mr. Barron’s § 2254 petition in April 2004. He now seeks a COA so he may appeal the district court’s ruling on the same three grounds rejected b y the district court.

II. DISCUSSION We may issue a COA and entertain Mr. Barron’s appea l only if he “has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, Mr. Barron “must show that reasonable jurists could debate whether (or, for th at matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation mark s omitted).-3-

In addition, an Oklahoma state court has already ad judicated Mr. Barron’s habeas claims on the merits. In cases like this, w e may grant habeas relief only where the state court decision was “contrary to, orinvolved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or was “based on an unreasonable determinati on of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We have also recently held that this “deferential treatmentof state court decisions must be incorporated into our consideration of a habeas pet itioner’s request for COA.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Applying this deferential standard, we have reviewe d the magistrate judge’s report and recommendation, the district court’s ord er and the entire record and brief on appeal. For substantially the same reason s set out in the magistrate judge’s thorough report and recommendation, and the district court’s order addressing objections to the report and recommendat ion, we conclude that Mr. Barron has not made a “substantial showing of the d enial of a constitutional right” under 28 U.S.C. § 2253(c)(2). First, the OC CA did not unreasonably apply federal law when it ruled that the trial court suff iciently informed the petitioner of his sentencing range and that he adequately underst ood the consequences of his plea. Second, we conclude that the OCCA did not er r when it found no “actual conflict,” at the plea hearing or the hearing to wi thdraw Mr. Barron’s plea of-4-

guilty, that adversely affected his counsel’s perfo rmance. Finally, the trial court did not abuse its discretion when it did not allow the petitioner to withdraw his guilty plea. We therefore DENY Mr. Barron’s application for a CO A. We GRANT his motion to proceed in forma pauperis and DISMISS the appeal.

Entered for the Court,

Robert H. Henry Circuit Judge