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 denial 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 matter.

I. BACKGROUND

In August 2001, Mr. Barron pleaded guilty in Oklahoma state court to one

count of possession of a controlled dangerous substance within 1,000 feet of a

school and one count of manufacturing a controlled dangerous substance. Mr.

Barron was sentenced to consecutive terms of twenty years’ imprisonment for
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each count and fined $50,000. The trial court denied his motion to withdraw his

plea in October 2001, and the Oklahoma Court of Criminal Appeals (“OCCA”)

later denied certiorari. In April 2002, Mr. Barron filed his § 2254 petition in

federal district court. He alleged (1) involuntariness 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 in violation of the Sixth

Amendment, and (3) erroneous denial of his motion to withdraw his guilty plea in

violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Following the

magistrate judge’s recommendations, the district court 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 by the district court. 

II. DISCUSSION

We may issue a COA and entertain Mr. Barron’s appeal only if he “has

made a substantial showing of the denial of a constitutional 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 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.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). 
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In addition, an Oklahoma state court has already adjudicated Mr. Barron’s

habeas claims on the merits. In cases like this, we may grant habeas relief only

where the state court decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court” 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). We have

also recently held that this “deferential treatment of state court decisions must be

incorporated into our consideration of a habeas petitioner’s request for COA.” 

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). 

Applying this deferential standard, we have reviewed the magistrate judge’s

report and recommendation, the district court’s order and the entire record and

brief on appeal. For substantially the same reasons set out in the magistrate

judge’s thorough report and recommendation, and the district court’s order

addressing objections to the report and recommendation, we conclude that Mr.

Barron has not made a “substantial showing of the denial of a constitutional

right” under 28 U.S.C. § 2253(c)(2). First, the OCCA did not unreasonably apply

federal law when it ruled that the trial court sufficiently informed the petitioner of

his sentencing range and that he adequately understood the consequences of his

plea. Second, we conclude that the OCCA did not err when it found no “actual

conflict,” at the plea hearing or the hearing to withdraw Mr. Barron’s plea of
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guilty, that adversely affected his counsel’s performance. 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 COA. We GRANT his

motion to proceed in forma pauperis and DISMISS the appeal. 

Entered for the Court, 

Robert H. Henry

Circuit Judge