FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 6, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 KEITH C. BROOKS, JR.,

              Petitioner - Appellant,
                                                       No. 12-1053
 v.                                           (D.C. No. 1:11-CV-02470-LTB)
                                                      (D. Colorado)
 ANGEL MEDINA, Warden, Limon
 Correctional Facility; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.



      Applicant Keith Brooks, Jr., a prisoner at the Limon Correctional Facility

in Colorado, filed a pro se application for relief under 28 U.S.C. § 2254 in the

United States District Court for the District of Colorado. The district court

dismissed his application, and he seeks a certificate of appealability (COA) from

this court to appeal the dismissal. See 28 U.S.C. § 2253(c)(1)(A) (requiring a

COA to appeal the denial of a § 2254 application). We deny his application for a

COA and dismiss the appeal.
I.    BACKGROUND

      In January 2000 Applicant pleaded guilty to an offense in Colorado

juvenile court; he was placed on two years’ probation and ordered to pay

$35,823.60 in restitution. See People v. Brooks, 

(Colo. App. 2010).

Three months later he pleaded guilty to second-degree burglary in state district

court; he was sentenced to four years’ probation and ordered to pay $240 in

restitution. The day after sentencing in the burglary case, Applicant admitted to

violating probation in his juvenile case. The juvenile court revoked his probation,

sentenced him to 90 days in jail, and ordered that the remaining balance of his

juvenile restitution be transferred to his burglary case. In January 2001 the state

district court added the restitution in the juvenile case to his adult restitution

obligation.

      In December 2007 Applicant filed a postconviction motion in state district

court. See Colo. R. Crim. P. 35. The court denied the motion and Applicant

appealed, raising five claims: (1) that the juvenile court had no jurisdiction to

transfer restitution to his burglary case; (2) that the district court had no

jurisdiction to order him to pay the outstanding balance of his juvenile restitution;

(3) that the transfer of restitution violated his right to be free from double

jeopardy; (4) that his guilty plea in the burglary case was invalid because it was

induced by the promise of an illegal sentence; and (5) that his plea counsel in the

burglary case was ineffective in advising him to accept an illegal sentence. See

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, 774. The Colorado Court of Appeals granted Applicant

relief on his first two claims and ordered the juvenile-court restitution order

removed from Applicant’s burglary sentence. See 

court declined,

however, to address Applicant’s remaining claims because he had raised them for

the first time on appeal. See 

Colorado Supreme Court denied

Applicant’s petition for a writ of certiorari.

      On September 20, 2011, Applicant filed his § 2254 application in federal

district court, raising two claims: (1) that the State used the promise of a

sentence that was illegal to induce him to plead guilty to burglary, in violation of

the Sixth and Fourteenth Amendments, and (2) that his counsel provided

ineffective assistance by telling him that he could challenge the amount of

restitution and could withdraw his plea if the challenge was unsuccessful. The

court determined that the claims were not exhausted in state court because they

had not been presented in a full round of Colorado’s review process and that they

would be procedurally defaulted if pursued in future state proceedings. Because

there was no ground for excusing that default, it ruled that the claims were barred

from federal habeas review.

      Applicant seeks a COA from this court to appeal the district court’s denial

of his two claims. He argues that the Colorado Court of Appeals erroneously

concluded that his inducement and ineffective-assistance claims had not been




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raised in state district court and therefore the federal district court erred in

holding that his claims were unexhausted and procedurally barred.

II.   DISCUSSION

      We construe Applicant’s request for a COA liberally because he proceeds

pro se. See Haines v. Kerner, 

, 520 (1972) (per curiam). A COA

will issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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, 

, 484 (2000)

(internal quotation marks omitted). In other words, the applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” 

was denied on procedural grounds, the applicant

faces a double hurdle. Not only must the applicant make a substantial showing of

the denial of a constitutional right, but he must also show “that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.” 

procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” 

in determining

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whether to issue a COA, a “full consideration of the factual or legal bases

adduced in support of the claims” is not required. Miller–El v. Cockrell, 

, 336 (2003). Instead, the decision must be based on “an overview of the

claims in the habeas petition and a general assessment of the merits.” 

this court that he is raising in his § 2254 application

the same claims that he presented in his original state postconviction proceeding:

(1) that “the illegal sentence ma[de] [his] guilty plea . . . invalid,” Aplt. Br. at

3.iii; and (2) that “because [he] was not advised of the . . . illegality of the illegal

sentence, he received ineffective assistance of counsel,” 

choose

not to address whether there has been a procedural default but resolve the

application for a COA on the merits. We reject Applicant’s request for a COA

because he fails to make a substantial showing of the denial of a constitutional

right.

         Applicant cites no authority for the proposition that a guilty plea must be

invalidated whenever a bargained-for sentence is held to be unlawfully severe.

The obviously proper remedy (absent some prejudice to the government) is simply

to reduce the sentence, as happened here. His first claim lacks colorable merit.

         Applicant’s second claim is that his counsel was ineffective in failing to

advise him that he would be accepting an illegal sentence. To succeed on his

ineffective-assistance-of-counsel claim Applicant must show that he was

prejudiced by his counsel’s performance. See Strickland v. Washington, 466 U.S.

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668, 687, 692 (1984). “To establish Strickland prejudice . . . [i]n the context of

pleas a defendant must show the outcome of the plea process would have been

different with competent advice.” Lafler v. Cooper, 

, 1384

(2012). Defendant has not alleged that had he received competent advice he

would have proceeded to trial instead of pleading guilty. Instead, he alleges that

had he received competent advice he would not have accepted a plea agreement

that included his juvenile-court restitution. But the Colorado Court of Appeals

ordered that the juvenile-court restitution be removed from his sentence. See

. Thus, the ultimate outcome is just what he contends it

would have been had his counsel properly advised him. Applicant’s second claim

must be rejected for failure to show prejudice.

III.   CONCLUSION

       We DENY Applicant’s request for a COA, GRANT his motion for leave to

proceed in forma pauperis, and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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