160 F.3d 1269 (10th Cir. 1998), 97-6008, Hickman v. Spears

Docket Nº:97-6008.
Citation:160 F.3d 1269
Party Name:Bobby Joe HICKMAN, Petitioner--Appellant, v. Denise SPEARS, Respondent--Appellee.
Case Date:October 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1269

160 F.3d 1269 (10th Cir. 1998)

Bobby Joe HICKMAN, Petitioner--Appellant,


Denise SPEARS, Respondent--Appellee.

No. 97-6008.

United States Court of Appeals, Tenth Circuit

October 27, 1998

Page 1270

Submitted on the briefs: [*]

Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal Public Defender, Denver, CO, for Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, and William R. Holmes, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, for Appellee.

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Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

Petitioner Bobby Joe Hickman, an Oklahoma state prisoner proceeding pro se and in forma pauperis, appeals from the district court's order denying his petition for a writ of habeas corpus, filed in accordance with 28 U.S.C. § 2254. We exercise jurisdiction pursuant to 28 U.S.C. § 2253. For the reasons set forth below, we affirm.

On April 12, 1994, in Jefferson County District Court, State of Oklahoma, petitioner pled guilty to Unlawful Possession of Marijuana-Second and Subsequent Offense, Okla. Stat. Ann. tit. 63, § 2-402(B)(2) (West 1997). At the time plaintiff entered his guilty plea, he had four prior felony convictions, three non-drug related. Consequently, petitioner was sentenced under Oklahoma's Habitual Criminal Act, Okla. Stat. Ann. tit. 21, § 51, and received the minimum sentence of twenty years imprisonment. Following his conviction, petitioner failed to file an application withdrawing his guilty plea within the period required by Oklahoma law and did not otherwise attempt to perfect a direct appeal.

On February 1, 1996, petitioner filed an application for post-conviction relief in Oklahoma state court claiming that: (1) he had received ineffective assistance of counsel and (2) his sentence was illegal because it exceeded statutory guidelines. The state courts denied petitioner's application on procedural default grounds because he had failed to properly raise his claims in a motion to withdraw his guilty plea, or otherwise on direct appeal. On June 27, 1996, Hickman filed a petition for a writ of habeas corpus in federal district court. The habeas corpus petition raises the same claims presented to the state courts in petitioner's application for post-conviction relief. In addition, petitioner argues that it was improper for the state courts to deny petitioner post-conviction relief based on his procedural default. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to a magistrate judge, who recommended denying the petition for a writ of habeas corpus. The district court adopted the magistrate's recommendation on December 12, 1996. Petitioner filed a notice of appeal on December 26, 1996. This court granted petitioner's application for a certificate of appealability on October 14, 1997, and this appeal followed.


Before we address the merits of Mr. Hickman's claims, we must first examine whether we should deny his habeas corpus petition because of procedural default in state court. On habeas review, this court will not consider issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision." English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998). For the state ground to be adequate, it must be " 'strictly or regularly followed' " and "applied 'evenhandedly to all similar claims.' " Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.1998) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982)). In reviewing a denial of a petition for habeas corpus, we review the district court's conclusions of law de novo and accept its findings of fact unless they are clearly erroneous. See Wildermuth v. Furlong, 147 F.3d 1234, 1236 (10th Cir.1998).


Under Oklahoma law, a defendant whose conviction is based upon a guilty plea must pursue an appeal to the Court of Criminal Appeals by petition for a writ of certiorari. See Okla. Stat. Ann. tit. 22, § 1051. To commence obtaining a writ of certiorari to appeal a guilty plea conviction, the petitioner must file an application to withdraw the plea within ten days of the judgment and sentence. See Okla. R.Crim.App. 4.2(A). In any event, he must file the petition for a writ of certiorari within 90 days of conviction. See Okla. Stat. tit. 22, § 1051. Failure to follow these procedural requirements prevents any further post-conviction relief unless petitioner shows a sufficient reason for

Page 1272

the default. See Worthen v. Meachum, 842 F.2d 1179, 1181 (10th Cir.1988), overruled on other grounds, Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Webb v. State, 661 P.2d 904, 905 (Okla.Crim.App.1983). Based upon our review of relevant case law, we conclude that the Court of Criminal Appeals of Oklahoma's decision denying post-conviction relief as to petitioner's illegal sentence claim rested on independent and adequate state procedural grounds. However, as discussed below, the state procedural default with respect to petitioner's ineffective assistance of counsel claim requires closer review.

This court has vigorously scrutinized the adequacy of state rules involving procedural default which have the effect of barring federal habeas review of ineffective assistance of counsel claims. See, e.g., English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998), Jackson v. Shanks, 143 F.3d 1313, 1318-19 (10th Cir.1998); Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir.1994). We give special attention to ineffective assistance of counsel claims because of the unique concerns associated with them. As stated by the Supreme Court in Kimmelman v. Morrison:

Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case.

477 U.S. 365, 378, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (internal citation omitted). Noting these concerns, this court held in Brecheen v. Reynolds that the failure to raise an ineffective assistance of counsel claim on direct appeal does not preclude federal habeas review of the claim, even if such failure is characterized as a procedural default under state law. See 41 F.3d at 1363-64. This court based its conclusion on "the interplay of two factors: (1) the general need for additional fact-finding for the proper resolution of a claim of ineffective assistance; and (2) the need to allow a petitioner to consult with different counsel on appeal in order to obtain an objective assessment of trial counsel's performance." English, 146 F.3d at 1260. We find that the short time frame in which petitioner had to perfect a certiorari appeal under Oklahoma law did not give him sufficient opportunity to discover and develop his ineffective assistance of counsel claim. Therefore, we find these procedural rules to be inadequate grounds for denying review of petitioner's...

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