Beavers v. Saffle

• Decision Date: 16 June 2000
• Docket Number: No. 99-6154,99-6154
• Citation: 216 F.3d 918
• Parties: (10th Cir. 2000) GARY ZANE BEAVERS, Petitioner - Appellant, v. JAMES L. SAFFLE, Respondent - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 918

216 F.3d 918 (10th Cir. 2000)

GARY ZANE BEAVERS, Petitioner - Appellant, v. JAMES L. SAFFLE, Respondent - Appellee.

No. 99-6154

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

June 16, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-97-1401-A)

[Copyrighted Material Omitted] Mac Oyler, Oklahoma City, Oklahoma, for Petitioner - Appellant.

Kellye Bates, Assistant Attorney General (and W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for Respondent - Appellee.

Before BALDOCK, KELLY, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant, Gary Zane Beavers appeals from the denial of his 28 U.S.C. 2254 motion. On March 2, 1992, he pled guilty to first degree murder in Oklahoma district court. After numerous state proceedings, he filed the present habeas petition. Mr. Beavers' habeas petition and request for a certificate of appealability (COA) were both denied by the district court. We granted a COA on four issues: (1) whether Mr. Beavers procedurally defaulted certain claims because of advice given by the Oklahoma Court of Criminal Appeals (OCCA); (2) the voluntariness of his plea; (3) ineffective assistance of counsel; and (4) the applicability of Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998).

Background

The facts, according to Mr. Beavers, are as follows. On June 24, 1991, Mr. Beavers and his wife took their daughter to a local motel to swim. Later in the evening, Mr. Beavers already drunk at the time took his wife to the motel bar. The victim, Raymond Matthews, was also at the bar and began touching and making sexual remarks regarding Mrs. Beavers. Later that evening, in a motel room with no one else present, Mr. Beavers killed Mr. Matthews by hitting him in the head several times with a baseball bat.

Charges were filed against Mr. Beavers for murder and against his wife as an accessory to murder. According to Mr. Beavers, he pleaded guilty for two reasons. First, he indicates that the state used the unsubstantiated charges against his wife as a tool to coerce him into pleading guilty. Aplt. App. at 90. Mr. Beavers' wife urged him to plead so that the charges against her would be dropped and she could take care of their young daughter. About a month after the plea, the time to file an appeal had elapsed and the charges against his wife were dropped.

Second, Mr. Beavers' attorney misinformed him that it would take between ten to twelve years to make parole on a life sentence for murder. In fact, the average time to make parole in the Oklahoma prison system for a murder life sentence was twenty-two and a half years. See id. at 94-95 (affidavit of Beavers' counsel acknowledging that he gave incorrect information about parole). This was an important factor in agreeing to plead, because Mr. Beavers "wanted to get the sentence behind me before my young daughter, Nicole, was grown or an adult." Id. at 90.

State Procedural Background

Mr. Beavers did not file a direct appeal, allegedly because the charges had not yet been dismissed against his wife and he feared that she would be prosecuted if he appealed. Aplt. Br. at 18. On February 5, 1993, almost a year after judgment, Mr. Beavers filed an "Application for An Evidentiary Hearing/Application to Withdraw Plea/Alternative/Application to Appeal Out of Time." Aplt. App. at 22. This same application was later refiled on March 4, 1993. Id. at 46. Both applications contained numerous claims of error, including the involuntary plea and ineffective assistance grounds.

Mr. Beavers also attempted to raise claims by filing a writ of mandamus with the OCCA. In a February 12, 1993 order, the OCCA denied the writ as an improper procedure for challenging the conviction. Id. at 84. The OCCA informed Mr. Beavers that

[t]he proper procedure for Petitioner to follow if he desires an appeal out of time of his conviction is to file an application for post-conviction relief in the District Court of Oklahoma County requesting an appeal out of time. Petitioner's right to appeal the merits of the allegations raised is dependent upon his ability to prove he was denied an appeal through no fault of his own.

Id. at 85.

Mr. Beavers then filed another writ of mandamus on March 12, 1993 asking the OCCA to order the district court to rule on his February 5 application. On March 23, the OCCA denied the writ since Mr. Beavers did not have a "legal right to a response by the District Court to a post-conviction application thirty-five days after said application was filed in the District Court." Id. at 87.

The district court subsequently denied the application for an evidentiary hearing although no reasons were given and it is unclear exactly which application the court dealt with. In its April 5, 1993 letter to Mr. Beavers, the court simply stated: "Pursuant to your request for Application for An Evidentiary Hearing by letter dated March 8, 1993, as per Judge Jackson, this request has been denied." Aplt. App. at 70. Mr. Beavers, following the advice of the OCCA, then filed a motion specifically designated as "Petition For An Appeal Out Of Time" on April 26, 1993. Id. at 74. In this petition, he raised the involuntariness of his plea but failed to allege the ineffective assistance claim. The district court denied the petition on April 29, 1993 in a short letter which stated: "Your Petition for Appeal Out of Time is hereby denied." Id. at 81. The OCCA affirmed the denial in an August 25, 1993 order. Id. at 82.

Several years later, Mr. Beavers filed another application for post-conviction relief, raising six claims including the involuntary plea and ineffective assistance. On June 20, 1997, the Oklahoma district court denied the petition, stating that all grounds for relief "must be raised in his original supplemental or amended application." Id. at 121. As Mr. Beavers failed to show a sufficient reason why his new claims were not raised on direct appeal or in the first application, the court refused to consider the petition. The denial of the petition was affirmed by the OCCA on August 27, 1997. Id. at 122. Mr. Beavers filed his habeas petition on the same day. Id. at 1. The federal district court held that Mr. Beavers was procedurally barred from bringing his claims and this appeal followed.

I. Advice of the OCCA

Mr. Beaver's first claim of being misled by the OCCA is a question of state procedural law. "[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 United States." Estelle v. McGuire, 502 U.S. 62, 67 (1991). The right to challenge a sentence in a post-conviction application is not constitutionally based. Therefore, any advice the OCCA gave concerning such a right is beyond the scope of habeas review.¹

II. Involuntary Plea

Mr. Beavers claims that his plea is involuntary because "the prosecution coerced him into pleading guilty by threatening to prosecute his wife." Aplt. Br. at 18. "Normally, before habeas relief may be granted a Petitioner is required to exhaust his remedies in state courts." Barnett v. Hargett, 174 F.3d 1128, 1134 (10th Cir. 1999). Mr. Beavers did not bring a direct appeal of this claim, and is therefore barred from raising it in federal court unless he can show either (1) cause for the failure to appeal and prejudice resulting therefrom, or (2) that the denial of habeas would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Mr. Beavers argues that the pending threat of prosecution against his wife was sufficient cause for failing to bring a direct appeal because the charges against her were only dropped after his deadline for bringing the appeal had passed. Interference by officials which makes compliance with a state procedural rule impracticable can rise to the level of cause for failure to act. See Demarset v. Price, 130 F.3d 922, 941 (10th Cir. 1997). However, Mr. Beavers' claim does not comport with the record. First, there is no evidence that the state was prosecuting Mrs. Beavers in bad faith. Second, neither the prosecutor nor any other state official informed Mr. Beavers that his wife would be prosecuted if he did not plead guilty. Rather, as Mr. Beavers stated in affidavit: "My wife was constantly urging me to enter a plea of guilty so she could get the charges against her disposed of . . . ." Aplt. App. at 90. Finally, Mr. Beavers himself previously denied, both orally and in writing, the very allegation he now raises. The following colloquy took place between Mr. Beavers and the court during the entry of plea:

THE COURT: Do you plead guilty of your own free will and without any coercion or compulsion of any kind?

THE DEFENDANT: My own free will.

THE COURT: And without any coercion or compulsion of any kind?

THE DEFENDANT: Yes.

THE COURT: Have you been forced, abused, mistreated, threatened or promised anything by anyone to have you enter your plea?

THE DEFENDANT: No.

Aplt. App. at 107; see also id. at 97 (giving the exact same answers to the same questions in written form). Given these facts, Mr. Beavers has failed to prove cause for his procedural default.

Nor can Mr. Beavers demonstrate that a fundamental miscarriage of justice would occur if his claim is procedurally barred. To meet this test, a criminal defendant must make a colorable showing of factual innocence. See Herrera v. Collins, 506 U.S. 390, 404 (1993). "The exception is intended for those rare situations 'where the State has convicted the wrong person of the crime.... [Or where] it is evident that the law has made a mistake.'" Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (citation omitted). Mr. Beavers does not claim that he is innocent of killing Raymond Matthews. Rather, he claims that he...