F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 2, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 JOSHUA L. GARDN ER,

                 Petitioner-A ppellant,                  No. 07-3110
          v.                                           District of Kansas
 DAVID R. M cKUNE, W arden,                     (D.C. No. 06-CV-3149-KHV)
 Lansing Correctional Facility;
 A TTO RN EY G EN ER AL O F THE
 STATE OF KANSAS; LOUIS
 BRUCE, W arden, Hutchinson
 Correctional Facility,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Joshua L. Gardner, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that M r. Gardner has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 

      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      On October 19, 2001, in Overland Park, Kansas, M r. Gardner stole a car

while armed with a handgun. The State of Kansas charged him with aggravated

robbery and aggravated battery.

      M r. Gardner entered plea negotiations with the state on April 14, 2003 and

eventually decided to plead no contest to aggravated robbery and aggravated

assault. The negotiations were based on the assumption that M r. Gardner had a

criminal history score of “I,” as reported by a court services officer. This score

would have resulted in a sentencing range of 55 to 61 months for aggravated

robbery and 11 to 13 months for aggravated assault. His attorney informed the

trial court that he would seek a concurrent sentence of 59 months for both crimes,

but that the state would argue for consecutive sentences totaling 71 months.

      The K ansas district court entered into a colloquy with M r. Gardner before

accepting his change of plea. The court emphasized that it could issue any

sentence within a broad statutory range. The court specifically told M r. Gardner

that, depending on his prior criminal record, if any, it could sentence him to

between 55 and 247 months for the aggravated robbery conviction and between 11

to 34 months for the aggravated assault conviction. The court advised M r.

Gardner that the State’s recommendations were merely recommendations and that

it could impose any sentence up to the maximum.




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      During the sentencing hearing, the court services officer informed all

parties that M r. Gardner’s proposed criminal history score of “I” was erroneously

low because it did not reflect a juvenile conviction. W hen his juvenile conviction

was included, M r. Gardener’s corrected score was “D,” which would result in a

range of 89 to 100 months for aggravated robbery. M r. Gardner moved to

withdraw his plea based on this change to his criminal history score.

      The state district court denied the motion. Acknowledging that the court

services officer had made “not a small mistake” by initially failing to consult the

Kansas Bureau of Investigation and accurately ascertain M r. Gardner’s criminal

history, the court ruled that M r. Gardner should have known and been able to

disclose to his attorney his own history, and that his attempt to withdraw his pleas

was opportunistic. M r. Gardner argued that he suffered from a head injury, which

might have impaired his memory or comprehension. The court rejected this

argument, finding it unlikely he w ould forget an adjudication that had occurred so

recently (in 1998). And the court found that M r. Gardner’s medical records

suggested he w as malingering and not actually impaired. Accordingly, the court

imposed a concurrent sentence of 94 months for the aggravated robbery

conviction and 12 months for the aggravated assault conviction.

      In this § 2254 petition M r. Gardner sets forth two grounds for relief, both

of which he presented and exhausted before the Kansas courts: (1) that his plea

was not “knowing and voluntary” because he relied upon the incorrect criminal

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history report, and (2) that use of juvenile criminal history in sentencing violated

his Sixth and Fourteenth A mendment rights under Apprendi v. New Jersey, 

(2000).

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A ). This Court may grant a C OA on a claim adjudicated in a state

court only if the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 

A petitioner must demonstrate that

“reasonable jurists could debate whether . . . 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. M cDaniel, 

,

484 (2000) (internal quotation marks omitted). W e conclude that reasonable

jurists would agree that M r. G ardner’s petition was resolved correctly. W e

therefore deny his request for C OA.

      A . Denial of M otion to W ithdraw Plea A greem ent

      The Due Process Clause of the Fourteenth Amendment requires that guilty

pleas be entered into knowingly and voluntarily. See Boykin v. Alabama, 395

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U.S. 238, 242 (1969). M r. Gardner contends that the incorrect advice he received

about his criminal history prevented him from knowingly entering into the

agreement.

      The Supreme Court has not squarely addressed whether miscalculated

sentencing ranges compromise a plea agreement’s constitutionality. This Circuit,

however, holds that “‘[a]n erroneous sentence estimate by defense counsel does

not render a plea involuntary. . . . And a defendant’s erroneous expectation, based

on his attorney’s erroneous estimate, likewise does not render a plea

involuntary.’” Fields v. Gibson, 

, 1214 (10th Cir. 2002) (quoting

Wellnitz v. Page, 

, 936–37 (10th Cir. 1970)). Based on this

precedent, we conclude that M r. Gardner’s erroneous expectation did not render

his plea involuntary. The colloquy between the court and M r. Gardner assured

that his plea was voluntary and that he understood that the court was not bound to

impose any specific sentence. After being advised that his sentence could be as

long as 247 months in prison, M r. Gardner still pleaded no contest. That the

sentence ultimately imposed was longer than what he expected does not,

therefore, violate clearly established federal law or render M r. Gardner’s plea

constitutionally invalid.

      Relatedly, M r. Gardner argues that his counsel was ineffective for failing to

investigate his criminal history, but this argument can not stand on its own. M r.

Gardner “must show that there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 

, 694 (1984). In the context of a guilty

plea, this requires M r. Gardner to “show that he would not have pled guilty had

his attorney performed in a constitutionally adequate manner.” M iller v.

Champion, 

, 1068 (10th Cir. 2001). Pleas may be invalid if defense

counsel “materially misinforms the defendant of the consequences of the plea . . .

by falsely alleging that promises or guarantees exist,” or tells “the defendant that .

. . he must plead guilty.” 

.

      M r. G ardner makes no showing of inaccurate advice, coercion, or bad faith.

He instead cites his counsel’s supposed failure to investigate his juvenile

convictions. M r. Gardner’s attorney, however, did not know that the court

services officer provided an inaccurate criminal history report, and under the

circumstances it w as reasonable for his attorney to rely on the report provided.

“W aiving trial entails the inherent risk that the good-faith evaluations of a

reasonably competent attorney”— such as the evaluations of M r. Gardner’s

attorney here— “will turn out to be mistaken either as to the facts or as to what a

court’s judgment might be on given facts.” M cM ann v. Richardson, 

, 770 (1970).

      M r. Gardner argues that Kansas law regarding plea agreements should have

allowed him to withdraw his plea prior to sentencing, but we are bound by a state

court’s interpretation of its ow n law. See Estelle v. M cGuire, 

, 67–68

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(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the Constitution, laws,

or treaties of the U nited States.”).

       B. Application of Juvenile Conviction in C riminal H istory Score

       Facts of prior convictions are a narrow exception to Apprendi’s rule that

sentence-enhancing factual findings must be admitted by the defendant or

submitted to a jury. See 

–89. This Circuit has not yet

decided whether juvenile proceedings count as “prior convictions.” M r. Gardner

urges us to rule that Apprendi bars admission of juvenile convictions in

sentencing, as the Ninth Circuit decided in United States v. Tighe, 

,

1194 (9th Cir. 2001). But see United States v. Burge, 

, 1187–91

(11th Cir. 2005) (holding that juvenile conviction may be considered as “prior

convictions” under Apprendi); United States v. Jones, 

, 694–96 (3d

Cir. 2003) (same); United States v. Smalley, 

, 1031–33 (8th Cir.

2002) (same). W e need not answer this question today. Even accepting Tighe,

Kansas’s use of M r. Gardner’s prior juvenile conviction is neither contrary to, nor

an unreasonable application of, clearly established Supreme Court precedent. See

Boyd v. Newland, 

, 1152 (9th Cir. 2006) (acknowledging Tighe but

concluding that the use of juvenile convictions does not violate federal law as




                                         -7-
determined by the Supreme Court). Under the narrow standard of review

applicable to habeas petitions, therefore, the district court properly denied relief.

                                     Conclusion

      Accordingly, we D EN Y Joshua L. Gardner’s request for a COA, DENY his

motion for IFP as moot, and DISM ISS this appeal.

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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