Bird v. Everett

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 2, 2000
• Docket: 99-8108
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 2 2000 TENTH CIRCUIT PATRICK FISHER Clerk

CHESTER LOYDE BIRD,

Petitioner-Appellant, vs. No. 99-8108 (D.C. No. 98-CV-183) VANCE EVERETT, Warden, (D. Wyo.) Wyoming State Penitentiary, and WYOMING ATTORNEY GENERAL,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, Circuit Judges. **

Petitioner-Appellant, Chester L. Bird, seeks to appeal from the dismissal of

his habeas petition, 28 U.S.C. § 2254. The parties are familiar with the facts and

we need not restate them here. See Bird v. State, 901 P.2d 1123 (Wyo. 1995);

Bird v. State, 939 P.2d 735 (Wyo. 1997). On appeal, Mr. Bird contends that the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** 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 (G). The cause is therefore ordered submitted without oral argument. district court erred in holding that he could not demonstrate that his claims met

the standards for habeas relief contained in 28 U.S.C. § 2254(d) & (e), and in

dismissing one claim without prejudice (that his sentence was unlawfully

lengthened) for failure to exhaust administrative remedies.

The state supreme court’s apparent determination that Mr. Bird entered a

knowing and voluntary plea despite the trial court’s initial overstatement of the

penalty (as three consecutive life sentences when only two consecutive life

sentences were possible), see Bird, 901 P.2d at 1130, is neither contrary to, nor an

unreasonable application of clearly established Supreme Court precedent. See

Williams v. Taylor, 120 S. Ct. 1495, 1522 (2000) (O’Connor, J.). Mr. Bird’s

contentions that trial and appellate counsel were ineffective must fail. The failure

to raise meritless claims does not constitute deficient performance. Moreover,

Mr. Bird cannot show prejudice as to trial counsel’s advice on this record, i.e.

“that there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 59 (1985). Mr. Bird’s allegations that he was coerced into pleading

guilty do not constitute clear and convincing evidence that would undermine the

state court’s contrary factual determinations, see Bird, 939 P.2d at 737-38; see

also 28 U.S.C. § 2254(e)(1).

Mr. Bird claims that his two concurrent life sentences without parole were

-2- stopped, lengthened and reinstated when a previous sentence was reinstated prior

to revocation of parole on that previous sentence. The district court dismissed

this claim for failure to exhaust state court remedies, though the parties contend

otherwise citing various state court proceedings. Mr. Bird essentially maintains

that the claim is exhausted. See I R. doc. 1 (ground six); doc. 18 at 7.

Respondents mantain that the claim is exhausted and/or procedurally barred. See

id. doc. 3 at 8; doc. 5 at 18-22; doc. 19 at 4. The claim could be construed as a

challenge to the execution of Mr. Bird’s sentence under 28 U.S.C. § 2241, see

Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); regardless, the district

court should have dismissed this claim with prejudice–we are in agreement with

Respondents that a federal constitutional claim is not presented. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991).

The judgment so modified, we DENY Mr. Bird’s motion for leave to

proceed on appeal without prepayment of costs or fees, DENY his application for

a certificate of appealability and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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