*This order and judgment is not binding precedent, except under the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

JUN 12 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK A. SHAW,

Petitioner-Appellant, 

v.

DAVID R. McKUNE; CARLA

STOVALL, Attorney General of

Kansas,

Respondents-Appellees. 

No. 00-3070

(Dist. of Kansas)

(D.C. No. 98-CV-3332-DES)

ORDER AND JUDGMENT*

Before BRORBY, KELLY, and MURPHY, Circuit Judges. 

After examining the briefs and 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 court

therefore orders the case submitted without oral argument.
1The KSGA has been codified at Kan. Stat. Ann. §§ 21-4701 to 4728. The

KSGA was amended after it was enacted but before it became effective. The

amendment was made after Shaw entered his guilty plea. The KSGA contains

retroactivity provisions whereby the sentences of certain offenders who were

sentenced prior to July 1, 1993, the date the KSGA went into effect, are converted

to sentences under the KSGA. See Kan. Stat. Ann. § 21-4724. Shaw claims the

retroactivity provisions in the pre-amendment version of the KSGA would have

applied to him and would have resulted in the conversion of his sentence to a

sentence more lenient than the one he received. 

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Patrick A. Shaw, proceeding pro se , seeks a certificate of appealability 

(“COA”) so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may

not be taken from the denial of a § 2254 habeas petition unless the petitioner first

obtains a COA). Shaw pleaded guilty in Kansas state court to one count of

taking indecent liberties with a child. On May 7, 1993, Shaw was sentenced to

five-to-twenty-years’ imprisonment. Shaw later sought to withdraw his guilty

plea but failed to obtain relief from the Kansas state courts. 

Shaw filed the instant § 2254 habeas petition with the United States

District Court for the District of Kansas on October 19, 1998. In the habeas

petition, Shaw raised three grounds for relief: (1) that his guilty plea was not

made voluntarily but was induced by the promise of a lesser sentence allegedly

contained in a version of the Kansas Sentencing Guidelines Act (“KSGA”); 1 (2)

that changes made to the KSGA before its effective date violate the Ex Post

Facto Clause of the United States Constitution because the changes increased his
-3-

punishment; and (3) that his due process rights have been violated because the

Kansas courts’ “un-lenient” interpretation of the KSGA has served to increase his

punishment in the same way as an ex post facto law. 

The district court addressed each of the three claims raised in Shaw’s

habeas petition and concluded that all three were without merit. The court first 

rejected Shaw’s contention that the pre-amendment version of the KSGA

constituted a promise of a lesser sentence by the State of Kansas that formed part

of the plea agreement. The district court then concluded that Shaw’s contention

he was promised a lesser sentence by the State of Kansas was unsupported by

anything in the record other than his Shaw’s own assertions, and was fatally

undermined by the plea petition, in which Shaw acknowledged that “no officer or

agent of any branch of government, (Federal, State or local), has promised,

suggested, or predicated that I will receive a lighter sentence, or probation, or

any other form of leniency if I plead ‘Guilty.’” The district court also liberally

construed Shaw’s habeas petition to contain a claim that his guilty plea was

involuntary because it was induced by his counsel’s promise that his sentence

would be converted to a lesser sentence when the KSGA went into effect. The

district court concluded there was no evidence in the record that either the court,

the prosecutor, or Shaw’s counsel promised Shaw a more lenient sentence than

the one he received or promised that his sentence would be amended retroactively
-4-

when the KSGA went into effect. See Cunningham v. Diesslin , 92 F.3d 1054,

1061 (10th Cir. 1996) (holding that petitioner’s misunderstanding about the

length of his incarceration does not undermine the constitutionality of his plea

unless the misunderstanding is “based upon [a] promise made by the defense

attorney, the prosecutor, or the court”). The district court’s conclusion was

supported by Shaw’s acknowledgment in the plea petition that his plea of guilty

was not the result “of any promises made to [him] other than those noted in this

petition.”

The district court next concluded that both of Shaw’s ex post facto claims

failed because the effective-date version of the KSGA did not increase the

punishment Shaw received. See Still v. Klinger , No. 98-6227, 1999 WL 569058

(10th Cir. August 4, 1999) (unpublished disposition) (“A decrease in potential

benefits after incarceration does not amount to an increase in the punishment

prescribed at the time the act was committed.”).

Shaw is not entitled to receive a COA unless he can make “a substantial

showing of the denial of a constitutional federal right.” 28 U.S.C. § 2253(c)(2). 

Shaw can make such a showing by demonstrating the issues raised are debatable

among jurists, a court could resolve the issues differently, or that the questions

presented deserve further proceedings. See Slack v. McDaniel , 120 S. Ct. 1595,

1603-04 (2000).
-5-

The district court produced a comprehensive Memorandum and Order

detailing why Shaw’s claims lack merit. This court is in substantial agreement

with the district court’s conclusions and declines to duplicate the district court’s

analysis here. Upon de novo review of Shaw’s application for a COA and

appellate brief, the district court’s Memorandum and Order, and the entire record

on appeal, this court concludes the issues raised by Shaw are not reasonably

debatable, subject to a different resolution on appeal, or deserving of further

proceedings. Consequently, Shaw has not made a substantial showing of the

denial of a federal right as required by 28 U.S.C. § 2253(c)(2) and he is not

entitled to a COA. Accordingly, we deny Shaw’s application for a COA for

substantially those reasons set out in the district court’s Memorandum and Order

dated February 10, 2000, and dismiss his appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge