FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    January 16, 2013
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                  TENTH CIRCUIT


 RANDY DON BECK,

          Petitioner-Appellant,
                                                        No. 12-6235
 v.
                                                 (D.C. No. 11-CV-01469-R)
                                                        (W.D. Okla.)
 JAMES RUDEK, Warden,

               Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Facing some 16 felonies charges, Randy Beck declined a plea offer from

state prosecutors that, if endorsed by the trial court, would have required him to

spend fifteen years in prison. Instead, Mr. Beck chose to enter a non-negotiated

guilty plea and take his chances at sentencing. But just before entering his plea,

Mr. Beck was arrested on new charges still and this development does not appear

to have helped his cause. At sentencing, the trial court issued an eighty-one year

prison term.




      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In response, Mr. Beck soon filed a motion seeking to withdraw his guilty

plea but this the trial court denied. Mr. Beck then appealed to the Oklahoma Court

of Criminal Appeals, asserting that his plea wasn’t voluntary, his trial counsel

were ineffective, and that his sentence violated the Eighth Amendment. The

appeal proved unsuccessful, as did Mr. Beck’s later application for state post-

conviction relief.

      Turning now to federal court, Mr. Beck brought this 28 U.S.C. § 2254

motion arguing that his trial counsel rendered constitutionally deficient

performance in connection with his plea dealings. The district court denied relief

and a certificate of appealability (COA). The court explained that, to succeed on

his Sixth Amendment claim, Mr. Beck carried the burden of showing both that his

counsel performed deficiently and that this deficient performance “prejudiced the

defense.” Strickland v. Washington, 

, 687 (1984). On the prejudice

prong, the district court held, Mr. Beck failed to present a colorable claim. To be

sure, the sentence under the negotiated plea offer was undoubtedly far less severe

than the sentence he ultimately received. If that alone were enough to establish

prejudice, Mr. Beck might have a good claim. But to establish prejudice, the

district court noted, a petitioner

      must show that but for the ineffective advice of counsel there is a
      reasonable probability that the plea offer would have been presented to the
      court (i.e., that the defendant would have accepted the plea and the
      prosecution would not have withdrawn it in light of intervening
      circumstances), that the court would have accepted its terms, and that the

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      conviction or sentence, or both, under the offer’s terms would have been
      less severe than under the judgment and sentence that in fact were imposed.

Lafler v. Cooper, 

, 1385 (2012); see also Missouri v. Frye, 

, 1409 (2012). In this case, the district court explained, Mr. Beck was

rearrested on new charges after the government made its negotiated plea offer and

just six days before he entered his non-negotiated plea. In light of this intervening

event, the district court held it is not “reasonably probable” that the prosecution

would have continued to extend its lenient offer or that the state court would have

accepted it. Now before us, Mr. Beck renews his request for a COA seeking to

attack this decision.

      Before facing that question, we first address whether we have authority to

do so. Mr. Beck’s notice indicating his intent to appeal was due by September 5,

2012, but it was not received by the district court until September 7, 2012 —

apparently two days too late. Prisoners, however, can take advantage of the

“prison mailbox rule” providing that “the notice is timely if it is deposited in the

institution’s internal mail system on or before the last day for filing. If an

institution has a system designed for legal mail, the inmate must use that system to

receive the benefit of this rule.” Fed. R. App. P. 4(c)(1). From the record we

have, it seems Mr. Beck submitted his notice to the Oklahoma Department of

Corrections legal mail system on September 5. So it is we are confident we may

hear his case.


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      Still, we may grant Mr. Beck’s renewed request for a COA only if he makes

a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To do this, he must demonstrate 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). Because Mr. Beck proceeds in this

court pro se, we review his pleadings with special solicitude.

      But even doing so we still can’t say Mr. Beck is eligible for a COA. Mr.

Beck nowhere addresses the district court’s holding that, in light of the

intervening charges against him, it is not “reasonably probable” that the

prosecution would have continued to extend its offer or that the state trial court

would have accepted it. In fact, in his COA application Mr. Beck fails to comment

at all on Strickland’s prejudice requirement. Simply put, he fails to supply any

reason of any kind to question the correctness of the district court’s prejudice

analysis.

      Separately, Mr. Beck complains that the district court “ignored” a new

affidavit by his trial attorney in that court. The district court, however, was

clearly correct in disregarding the document. “[R]eview under § 2254(d)(1),” the

Supreme Court has recently explained, “is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131

                                         -4-
S. Ct. 1388, 1398 (2011). As the district court noted, too, trial counsel’s affidavit

attests that she did not advise Mr. Beck that the court would be more lenient in a

non-negotiated plea and so it’s not entirely clear whether the affidavit would have

helped Mr. Beck’s cause. Mr. Beck says the district court should have at least

granted him a stay so that he could have presented new arguments based on Lafler

and Frye in state court. But whatever other problems might face this request, the

district court held such a procedure was unnecessary in this case given the clarity

of his inability to meet their requirements. For his part, Mr. Beck once again fails

to respond at all to this holding, let alone give us reason to doubt it.

      Because Mr. Beck fails to carry his burden of showing that the district

court’s resolution of his claims were debatable, his application for a COA is

denied and this appeal is dismissed. We grant Mr. Beck’s motion to proceed in

forma pauperis.


                                         ENTERED FOR THE COURT



                                         Neil M. Gorsuch
                                         Circuit Judge




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