Cone v. Dutton
| Decision Date | 29 November 1993 |
| Citation | 972 F.2d 356 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Petitioner Gary B. Cone appeals, pro se, the district court's denial of his habeas corpus petition. Mr. Cone asserts the district court erred in denying his habeas corpus petition by (1) failing to properly consider that his guilty plea was not voluntarily and intelligently made in state trial court; (2) rejecting his claim of ineffective assistance of counsel; and (3) failing to consider that he was unconstitutionally deprived of his right to appeal through no fault of his own. We grant Mr. Cone's petition to proceed in forma pauperis but affirm the district court's denial of habeas corpus relief.
In 1972, Mr. Cone pleaded guilty in Oklahoma state court to three counts of robbery with firearms, for which he was sentenced to three concurrent terms of twenty-five years' imprisonment. Mr. Cone did not file a direct appeal on these convictions, but the Oklahoma County District Court denied his post-conviction petition for relief nearly eighteen years later, on March 22, 1990. The Oklahoma Court of Criminal Appeals affirmed, holding Mr. Cone was procedurally barred from raising his claims.
Citing Okla.Stat. tit. 22 §§ 1051 and 1086 (1981), and Okla.R.Crim.P. 4.1, the United States District Court for the Western District of Oklahoma likewise denied Mr. Cone's petition for habeas corpus relief, ruling that absent a showing of cause and prejudice, post-conviction relief on the merits is not available to a defendant who has not perfected a timely direct appeal within ten days of the judgment of conviction under Oklahoma law. The district court found Mr. Cone did not show cause and prejudice for failing to pursue his claims on direct appeal. The district court also rejected Mr. Cone's ineffective assistance of counsel claim, noting he suffered no prejudice. Furthermore, the district court held Mr. Cone's third ground for relief alleging defects in his state post-conviction proceeding is not a basis for relief in a federal habeas corpus action.
Subsequent to his release on parole from Oklahoma, Mr. Cone was sentenced to death after his conviction on two counts of first degree murder in an unrelated case in Tennessee. Mr. Cone seeks post-conviction relief on the Oklahoma robbery convictions because they were used to enhance his sentence for the Tennessee murder convictions.
Absent a showing of cause and prejudice, "a court may not reach the merits of ... procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, ----, 1992 WL 135565 at * 3 (Jun. 22, 1992) (citing Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72 (1977)). This rule results from concern for both the finality of state court judgments of conviction, "and the 'significant costs of federal habeas review.' " Sawyer, --- U.S. at ----, 112 S.Ct. at ----, 1992 WL 135565 at * 3 (quoting McCleskey v. Zant, --- U.S. ----, ----, 111 S.Ct. 1454, 1468 (1991)).
Mr. Cone argues at length that his guilty plea in state court could not have been intelligently and voluntarily made because, among other things, the trial judge failed to assess his competency or adequately insure he fully understood the charge, his waiver of constitutional rights and the consequences of a guilty plea. He asserts the district court should have considered the merits of this claim.
We agree with the district court that Mr. Cone has not shown the requisite "cause and prejudice" for review of this issue. As the district court found, Mr. Cone was given adequate notice of the appeals procedure in effect at the time of his conviction and his right to appeal. He did not pursue an appeal of these issues and therefore is procedurally barred from post-conviction relief under Oklahoma law. See Webb v. Oklahoma, 661 P.2d 904, 905 (Okla.Crim.App.), cert. denied, 461 U.S. 959 (1983).
Mr. Cone asserts the district court improperly based its denial of habeas corpus relief on a summary of facts form rather than the trial court record itself. He contends review of the transcript would demonstrate the trial court's failure to fully " 'canvass[ ] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences' " as required under Boykin v. Alabama, 395 U.S. 238, 244 (1969). Mr. Cone's argument has little merit. This Circuit has long held that a summary of facts form alone may be sufficient to establish a knowing and voluntary plea. Moore v. Anderson, 474 F.2d 1118, 1119-20 (10th Cir.1973). The district court did not err to the extent it relied on the summary of facts form in finding that Mr. Cone voluntarily and intelligently entered a guilty plea.
If a state prisoner cannot meet the cause and prejudice standard, a federal court may nevertheless hear the merits of petitioner's claim(s) "if the failure to hear the claims would constitute a 'miscarriage of justice.' " Sawyer, --- U.S. at ----, 112 S.Ct. at ----, 1992 WL 135565 at * 4. In short, the Supreme Court has permitted review of claims not meeting the cause and prejudice standard under a narrow exception where "petitioner 'establish[es] that under the probative evidence he has a colorable claim of factual innocence.' " Id. (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Mr. Cone has not made a claim of factual innocence, nor asserted facts showing a colorable claim of innocence. Hence, we may not review his claim under the so-called "actual innocence" exception. See Sawyer, --- U.S. at ----, 112 S.Ct. at ----, 1992 WL 135565 at * 4.
Accordingly, we find no error with the district court's denial of habeas corpus relief with respect to Mr. Cone's first claim.
Next, we consider Mr. Cone's assertion that the district court failed to fully consider his ineffective assistance of counsel argument.
As the district court noted, ineffective assistance of counsel claims may be brought for the first time collaterally because a criminal defendant will rarely know he has not been represented competently until he consults another attorney after trial or appeal. See Beaulieu v. United States, 930 F.2d 805, 806-07 (10th Cir.1991); Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th Cir.1988) (citing Kimmelman v. Morrison, 477 U.S. 365 (1986)). Although we review Mr. Cone's ineffective assistance of counsel claim, we nevertheless find petitioner's claim without merit.
To find a defendant's counsel ineffective, petitioner must overcome both "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). Petitioner must also show such deficiency prejudiced the defense to a degree that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694. Applying the first prong of Strickland, the proper standard for measuring attorney performance where a defendant challenges the guilty plea on ineffective assistance of counsel grounds is whether the attorney provided "reasonably effective assistance." See Laycock v. New Mexico, 880 F.2d 1184, 1187 (10th Cir.1989). The second prong is met where defendant shows a reasonable probability that but for counsel's errors, he would not have entered a guilty plea and would have insisted on trial. Id. (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
The district court rejected Mr. Cone's ineffective assistance of counsel claim on the basis he put forth only conclusory and meritless allegations of ineffectiveness and he demonstrated no prejudice. We agree. On appeal, Mr. Cone merely asserts in conclusory fashion that his counsel was ineffective and states no facts whatsoever to support his claim of ineffectiveness. A review of his original habeas corpus petition to the district court indicates his claim of ineffectiveness of counsel parallels his first claim that his guilty plea was not voluntarily and intelligently made (i.e., counsel failed to advise petitioner of the waiver of constitutional rights and the consequences of a guilty plea).
Mr. Cone's conclusory allegation of ineffective counsel is clearly rebutted by the summary of facts form reflecting his voluntary plea of guilty. Mr. Cone acknowledged the minimum and maximum sentences he faced, his right to a jury trial, and his right to confront witnesses against him. He also stated he had discussed the charges with his attorney, he understood his rights and he was satisfied with his attorney's performance. Furthermore, he stated he pleaded guilty of his own free will, without any compulsion, threats or mistreatment.
Because Mr. Cone was advised of his right to appeal and all material aspects of his plea, we agree with the district court that even if his allegations of ineffectiveness were true, he was not prejudiced since his rights were fully explained in the summary of facts form which he signed. See Kemp v....
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