*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 7 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES R. MCMILLAN,

Petitioner-Appellant, No. 00-3375

v. (D.C. No. 99-CV-3155-DES)

DAVID R. MCKUNE; ATTORNEY

GENERAL FOR THE STATE OF

KANSAS,

(D. Kan.)

Respondents-Appellees.

 

ORDER AND JUDGMENT*

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit

Judge.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument.

State prisoner Charles R. McMillan seeks to appeal from the dismissal of
-2-

his 28 U.S.C. § 2254 habeas petition. Petitioner pleaded guilty to felony murder 

for which he was sentenced to life imprisonment. Petitioner sought a writ of

habeas corpus in the United States District Court for the District of Kansas,

alleging that the state trial court erred in: (1) denying a motion to withdraw plea

without an evidentiary hearing; (2) not appointing counsel to withdraw plea; (3)

not producing proof of the factual basis for felony murder and the underlying

felony charge; and (4) not fully informing Petitioner that his constitutional rights

were waived upon acceptance of a guilty plea. The district court denied the

petition, holding that Petitioner’s first and second assignments of error did not

implicate federal law and that Petitioner’s third and fourth claims were

unsupported by the evidence in the state court record. Finding no merit to any of

Petitioner’s arguments, the court declined to grant Petitioner a certificate of

appealability as required by 18 U.S.C. § 2253(c) to appeal his § 2254 petition. 

Petitioner then applied to this court for a certificate of appealability.

In order for this court to grant a certificate of appealability, Petitioner must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate 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. McDaniel, 529 U.S. 473,
-3-

484 (2000) (quotations omitted).

We have carefully reviewed Petitioner’s brief, the disposition of the district

court, and the record on appeal. We now conclude that for substantially the same

reasons as set forth by the district court in its Memorandum and Order of October

13, 2000, we cannot say that “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner.” 

Slack, 529 U.S. 473 at 484 (quotations omitted). We thus deny Petitioner’s

request for a certificate of appealability.

Petitioner further moved both the district court and this court to proceed in

forma pauperis on appeal. After Petitioner had filed his application to this court,

the district court granted his motion. We therefore dismiss Petitioner’s motion in

this court to proceed in forma pauperis as moot.

Accordingly, we DENY Petitioner's request to proceed in forma pauperis

on appeal as moot, DENY him a certificate of appealability, and DISMISS the

appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge