FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                           February 14, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 LARRY DARNELL BROWN, JR.,

       Petitioner - Appellant,

 v.                                                           No. 18-5102
                                                   (D.C. No. 4:15-CV-00277-JHP-JFJ)
 JOE M. ALLBAUGH, Director,                                   (N.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Larry Brown, Jr., an Oklahoma prisoner proceeding pro se,1 seeks a certificate

of appealability (COA) so that he can appeal the district court’s order denying his 28

U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A).

      When a district court rejects a petitioner’s “constitutional claims on the

merits,” we will grant a COA if the petitioner “demonstrate[s] that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 

, 484 (2000). But when a district court


      *
         This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         Because Brown proceeds pro se, we liberally construe his filings. See
Eldridge v. Berkebile, 

, 1243 n.4 (10th Cir. 2015). But we won’t act as
his advocate. See 

relief “on procedural grounds without reaching the prisoner’s

underlying constitutional claim,” then the petitioner’s burden becomes more onerous:

he or she must show both “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of

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

ruling.” 

       Here, Brown’s § 2254 petition advanced a due-process claim. Specifically,

Brown asserted that the state trial court “[c]oerce[d]” him “to [p]lead guilty” by

promising to take certain actions if Brown “withdrew his motion to withdraw his

guilty plea and left his plea in tact [sic]”—a promise that, as it turned out, the trial

court lacked authority to fulfill. R. vol. 1, 9; cf. Santobello v. New York, 

, 262 (1971) (“[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.”).

       In denying Brown’s § 2254 petition, the district court rejected this iteration of

Brown’s due-process claim on the merits. The district court reasoned that because the

trial court made the promise at issue after Brown entered his plea, that promise could

not have “influenced [Brown’s] initial decision to waive his constitutional right to a

jury trial.” R. vol. 1, 210; cf. United States v. Kerns, 53 F. App’x 863, 866 (10th Cir.

2002) (unpublished) (“Allegations of [petitioner’s] attorney’s conduct after the plea

was entered do not suggest that the entry of [petitioner’s] plea and his assent to



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waiver was involuntary.”). Thus, the district court ruled, Brown failed to “show[] that

the plea itself [was] unconstitutional.” R. vol. 1, 210.

       Next, the district court acknowledged a previous version of Brown’s claim: it

noted that in state court, Brown alleged the trial court’s false promise violated his

due-process rights, not because it induced him to enter a plea—thus rendering his

plea involuntary—but because it “caused him to waive his right to appeal.” 

The district court declined to reach the merits of this potential constitutional

claim and instead rejected it for procedural reasons. Specifically, the district court

ruled that “[e]ven a liberal construction of [Brown’s] pro se petition and supporting

brief” didn’t convince the district court that Brown was “alleg[ing] a deprivation of

his right to appeal.” 

       Notably, in seeking a COA to appeal the district court’s order denying his

§ 2254 petition, Brown doesn’t challenge the district court’s narrow interpretation of

his due-process claim. Indeed, he appears to disavow any argument that he is now

entitled to a direct appeal out of time, which is the remedy the district court

suggested might be appropriate if Brown asserted and established that the trial court’s

false promise unconstitutionally induced him to waive his appellate rights. Instead,

Brown doubles down on the version of his due-process claim the district court

rejected on the merits. That is, Brown suggests reasonable jurists could debate

whether his plea “was induced by” the trial court’s false promise. Aplt. Br. at 7

(quoting Mabry v. Johnson, 

, 509 (1984), disapproved of by Puckett v.

United States, 

, 138 n.1 (2009)). And he further insists that the “only”

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appropriate remedies for this alleged constitutional error are either to allow him to

withdraw his plea or to order “specific performance of the [plea] agreement.” 

(citing Santobello, 

).

      In short, Brown expresses no disagreement with—and in fact implicitly

endorses—the district court’s procedural basis for rejecting Brown’s potential

appellate-waiver claim. Thus, Brown isn’t entitled to a COA to appeal that aspect of

the district court’s order. See 

. And because Brown fails to

explain why reasonable jurists might find debatable or wrong the district court’s

substantive ruling that any promises the trial court made after Brown pleaded guilty

necessarily couldn’t have influenced Brown’s initial decision to enter a plea, we

likewise decline to issue Brown a COA on that basis. See id.; Kerns, 53 F. App’x

at 866. We therefore deny Brown’s COA request and dismiss this appeal.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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