* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 SEYMOURand 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 notmaterially 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 ora l argument. State prisoner Charles R. McMillan seeks to appeal from the dismissal of-2-

his 28 U.S.C. § 2254 habeas petition. Petitioner p leaded guilty to felony murder for which he was sentenced to life imprisonment. P etitioner sought a writ of habeas corpus in the United States District Court f or 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 Petition er that his constitutional rights were waived upon acceptance of a guilty plea. The district court denied the petition, holding that Petitioner’s first and secon d assignments of error did not implicate federal law and that Petitioner’s third a nd fourth claims were unsupported by the evidence in the state court reco rd. Finding no merit to any of Petitioner’s arguments, the court declined to grantPetitioner 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 certifi cate of appealability. In order for this court to grant a certificate of appealability, Petitioner must make a “substantial showing of the denial of a cons titutional 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) th e petition should have been resolved in a different manner or that the issues p resented 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 t hat for substantially the same reasons as set forth by the district court in its M emorandum and Order of October 13, 2000, we cannot say that “reasonable jurists co uld debate whether (or, for that matter, agree that) the petition should have been r esolved in a different manner.” Slack , 529 U.S. 473 at 484 (quotations omitted). We thu s deny Petitioner’s request for a certificate of appealability. Petitioner further moved both the district court an d 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 therefor e dismiss Petitioner’s motion in this court to proceed in forma pauperis as moot. Accordingly, we DENY Petitioner's request to procee d in forma pauperis on appeal as moot, DENY him a certificate of appeal ability, and DISMISS the appeal. Entered for the Court
Monroe G. McKay Circuit Judge