Braggs v. Attorney General OK

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 14, 1998
• Docket: 98-6156
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 14 1998 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

TERRY JOE BRAGGS,

Petitioner-Appellant,

v. No. 98-6156 (W.D. Okla.) THE ATTORNEY GENERAL OF (D.Ct. No. CIV-97-1085-L) THE STATE OF OKLAHOMA; GARY CARDINALE; JAMES SAFFLE,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The 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. therefore ordered submitted without oral argument.

Petitioner Terry Joe Braggs appeals the district court’s denial of his petition

for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, and requests a

certificate of appealability. Mr. Braggs is currently serving a twenty year

sentence in the Mansfield Law Enforcement Center, following his conviction for

robbery with a firearm. Mr. Braggs filed a direct appeal of his conviction with

the Oklahoma Court of Criminal Appeals, asserting as his sole claim the evidence

was insufficient to prove his guilt. The Oklahoma Court of Criminal Appeals

affirmed the conviction. Mr. Braggs then filed a petition for federal habeas relief

in which he again asserted the evidence was insufficient to support his conviction

and added claims for ineffective assistance of counsel and denial of due process

as a result of an impermissibly tainted in-court identification. Because the

ineffective assistance of counsel and due process claims had not been raised in

the Oklahoma courts, the magistrate judge recommended the petition be dismissed

as a “mixed petition,” containing both exhausted and unexhausted claims. The

district court adopted the magistrate judge’s recommendation, dismissed the

petition without prejudice, and denied a certificate of appealability. We agree

with the district court’s reasoning and therefore deny Mr. Braggs’ motion for a

-2- certificate of appealability and dismiss his appeal.

A state prisoner’s federal habeas petition should be dismissed if the

prisoner has not exhausted available state remedies. Coleman v. Thompson, 501

U.S. 722, 731 (1991). A district court must also dismiss “mixed” petitions

containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509,

510 (1982). A claim is exhausted if a state appellate court has had the

opportunity to rule on the claim, or if the petitioner has no available state avenue

of redress. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.), cert. denied, 506

U.S. 924 (1992). The latter circumstance occurs where petitioner’s claims would

be procedurally barred under applicable state law. Coleman, 501 U.S. at 732;

Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997).

In this case, Mr. Braggs exhausted his sufficiency of the evidence claim by

raising it on direct appeal. 1 Mr. Braggs failed, however, to present his ineffective

assistance of counsel or due process claims before the Oklahoma Court of

Criminal Appeals. Under Oklahoma law, if a prisoner bypasses an issue on direct

1 A direct appeal effectively exhausts state remedies under Oklahoma law because “[i]ssues which were raised and decided on direct appeal are barred from further consideration [at the state level] by res judicata.” Paxton v. State, 910 P.2d 1059, 1061 (Okla. Crim. App. 1996).

-3- appeal, he or she may not assert that issue in application for state post-conviction

relief. Jones v. State, 704 P.2d 1138, 1140 (Okla. Crim. App. 1985). Thus, Mr.

Braggs might argue his remaining claims are procedurally barred, and therefore

exhausted, since he bypassed direct appeal and collateral review is unavailable.

However, Oklahoma courts have recognized certain exceptions to the

procedural bar rule. Specifically, a defendant may raise issues in an application

for post-conviction relief not asserted on direct appeal if “sufficient reason”

prevented assertion of the error or if defendant bypassed direct appeal because of

a procedural error of counsel. Okla. Stat. tit. 22, § 1086 (1986); Jones, 704 P.2d

at 1140. Because there is a possibility that the state court may allow review of

Mr. Braggs’ claims under one of these exceptions, there remains an available state

avenue of redress, and Mr. Braggs must exhaust that remedy before proceeding

with his federal habeas petition. See Snowden v. Singletary, 135 F.3d 732, 737

(11th Cir.) (noting a procedural bar does not amount to exhaustion if “there is a

reasonable possibility that an exception to the procedural bar may still be

available to the petitioner”), cert. denied, 119 S. Ct. 405 (1998); Lambert v.

Blackwell, 134 F.3d 506, 519 (3d Cir. 1998) (holding that federal court should

dismiss a petition if it is uncertain how a state court would resolve the procedural

default issue), petition for cert. filed (S. Ct. Apr. 23, 1998) (No. 97-8812).

-4- Mr. Braggs has failed to adequately exhaust available state remedies, a

prerequisite to bringing this action. Rose, 455 U.S. at 510. Since Mr. Braggs

may obtain relief in state court, he has not yet made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253; Hogan v. Zavaras, 93 F.3d

711, 712 (10th Cir. 1996) (denying certificate of appealability where petitioner

failed to exhaust state remedies). Accordingly, we deny Petitioner’s application

for a certificate of appealability and DISMISS this appeal.

Entered by the Court:

WADE BRORBY United States Circuit Judge

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