Thomas v. Cowley
| Decision Date | 29 November 1993 |
| Citation | 996 F.2d 311 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 BALDOCK and KELLY, Circuit Judges, and BENSON, * District Judge. **
Petitioner Jerry Lewis Thomas, an inmate of the State of Oklahoma appearing pro se, appeals from the order of the district court adopting the findings and recommendations of the magistrate judge and denying petitioner's petition for a writ of habeas corpus. This court granted petitioner's application for a certificate of probable cause in an order filed on April 27, 1993. Petitioner also moves this court to supplement his appellate brief with recent Oklahoma authority and to make the jury instructions a part of the record on appeal. The motions are granted. We exercise jurisdiction under 28 U.S.C. § 2253, and affirm.
Petitioner raises eight issues 1 on appeal: I) the district court's finding that Oklahoma applies its procedural bar rule consistently is clearly erroneous and contrary to law; II and III) the magistrate judge's findings and conclusions that issues of mootness and dictum are not cognizable in habeas are clearly erroneous and contrary to law; IV) the district court's conclusion that the Oklahoma Court of Appeals relied on a procedural bar as to petitioner's grounds not raised on direct appeal is clearly erroneous and contrary to law; V) the district court erred in finding that petitioner failed to show cause and prejudice for his failure to raise certain issues on direct appeal by alleging ineffective assistance of trial and appellate counsel; VI) the district court's findings of fact and conclusions of law that counsels' conflicts of interest did not affect petitioner's trial and appeal are clearly erroneous and contrary to law; VII and VIII) the evidence was insufficient to support petitioner's convictions for burglary and rape.
The district court's findings of fact will not be set aside unless they are clearly erroneous, see Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985), but we review the district court's legal conclusions de novo, Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir.1992). Petitioner makes the same arguments on appeal as before the district court. We have considered them and have reviewed the record carefully, and affirm the order of the district court denying habeas relief for substantially the same reasons as in the district court's Memorandum Opinion and Order, entered on July 29, 1992, a copy of which is attached.
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
The mandate shall issue forthwith.
v.
JACK COWLEY, Respondent.
MEMORANDUM OPINION AND ORDERHabeas Corpus Petitioner Jerry Lewis Thomas has filed objections to the Report and Recommendation of United States Magistrate Judge Bana Blasdel. Also before the Court is Petitioner's motion to supplement the record on his conflict-of-interest and ineffective assistance of counsel claims. That motion is granted.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 39(D), the Court reviews de novo those portions of the Report and Recommendation to which Petitioner has made objection and in so doing considers the supplemented record.
First, Petitioner asserts that the Oklahoma Court of Criminal Appeals did not "expressly and unequivocably" state that Petitioner's failure to raise issues on direct appeal barred Petitioner from raising them in post-conviction proceedings. He contends that because the Court of Criminal Appeals did not use the term "procedural bar," its statement falls short of a plain statement clearly and expressly stating that its judgment rests on a state procedural bar, citing Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).
This objection is without merit. As observed by the Magistrate at page 3 of the Report and Recommendation, the Oklahoma Court of Criminal Appeals, the last state court rendering judgment in the case, stated in affirming the denial of post-conviction relief to Petitioner, "[a]ll issues not raised in the direct appeal, which could have been raised are waived. 22 O.S. 1986, § 1086. It is difficult to imagine a much clearer statement that that court's decision rested on a state law procedural bar that applies when a petitioner has failed to raise an issue on direct appeal which he asserts as a basis for post-conviction relief. No mention is made of federal law in the Oklahoma Court of Criminal Appeals' Order. The Magistrate's conclusion is not contrary to law. See generally Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Gilbert v. Scott, 941 F.2d 1065, 1067 (10th Cir.1991).
Next, Petitioner asserts that the Magistrate "erred in her reporting that Petitioner failed to demonstrate that Oklahoma does not 'strictly follow' its rule embodied in 22 O.S. § 1086." Petitioner implies that the Magistrate overlooked the exhibits to Petitioner's Reply to Respondent's Response and asserts that "[t]he Court should have an evidentiary hearing to further develop the record" so that he can show that the procedural rule in Okla.Stat. tit. 22, § 1086 is not strictly or regularly followed.
The Court has reviewed the exhibits to Petitioner's Reply to Respondent's Response. The Magistrate's finding that [t]hese orders provide no evidence, one way or the other, regarding the state court's application of Oklahoma's contemporaneous objection rule to bar review or its 'inadequately raised' exception to the bar" is not clearly erroneous. The Magistrate's conclusion that Petitioner failed to show that the Oklahoma Court of Criminal Appeals does not regularly apply its contemporaneous objection rule to bar post-conviction review of issues not raised on direct appeal is not contrary to law. An evidentiary hearing was not and is not required on this issue. It appears that Oklahoma courts regularly follow the procedural bar rule of Okla.Stat. tit. 22, § 1086 in post-conviction proceedings. See Hale v. State, 807 P.2d 264, 266-67 (Okla.Crim.App.1991); Cartwright v. State, 708 P.2d 592, 593 (Okla.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed. 808 (1986); Jones v. State, 704 P.2d 1138, 1139-40 (Okla.Crim.App.1985), cert. denied, 459, U.S. 1155, 103 S.Ct. 799, 74 L.Ed. 1002 (Okla.1983); Maines v. State, 597 P.2d 774, 776 (Okla.Crim.App.1979); Castleberry v. State, 590 P.2d 697, 701 (Okla.Crim.App.1979); Ellington v. Crisp, 547 P.2d 391 (Okla.Crim.App.1976); Smith v. State, 546 P.2d 1351, 1353 (Okla.Crim.App.1976);
Next, Petitioner asserts that the Magistrate's findings that Petitioner had not demonstrated cause or prejudice are clearly erroneous. In this regard, Petitioner asserts that actual conflicts of interest existed between himself and his trial and appellate counsel; that the Court should hold an evidentiary hearing since such conflicts have been demonstrated by Petitioner, citing United States v. Winkle, 722 F.2d 605, 611 (10th Cir.1983) and Church v. Sullivan, 942 F.2d 1501, 1509-12 (10th Cir.1991); that the Magistrate erred in concluding that Petitioner's ineffective assistance of counsel claim failed with regard to his trial counsel; that the Magistrate erred in not addressing the ineffective assistance of appellate counsel on the merits; and that the Magistrate erred in concluding that the alleged conflict of interest had no affect on Petitioner's trial or on his appeal and could not constitute "cause" for the procedural default.
The Court has reviewed the transcripts of Petitioner's trial, sentencing and new trial motion and agrees with the Magistrate's finding that trial counsel's performance was well within the "wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674, 694 (1984). While a conflict of interest existed between trial counsel and Petitioner with regard to Petitioner's claims of ineffective assistance of trial counsel as grounds for his new trial motion, Petitioner filed and the trial court considered Petitioner's own brief asserting such grounds. The state trial court conducted an evidentiary hearing on Petitioner's claim that his trial counsel failed to subpoena certain witnesses who would have corroborated and verified substantive evidence which tended to prove Petitioner's innocence. Trial counsel filed a motion to withdraw based on a conflict of interest between trial counsel and Petitioner due to Petitioner's assertion of ineffective assistance in his brief supporting a new trial motion. See Transcript of Hearing on November 24, 1981, attached as Exhibit "A" to Petitioner's Brief in Support of Motion to Supplement Record ("Nov. 24, 1981 Tr.") and Criminal Appeal--Original Record at pp. 80-97. The trial court overruled this motion, finding that Petitioner's claims for ineffective assistance of counsel asserted as grounds for a new trial motion, which constituted the basis for the conflict of interest, were frivolous. Nov. 24, 1981 Tr. at pp. 49-51. In any event, Petitioner...
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