Harmon v. Hargett

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 24, 1997
• Docket: 96-6135
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 20 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

SONNY LAUREN HARMON,

Petitioner-Appellant,

v. No. 96-6135

STEVE HARGETT, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

ORDER

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

On the court’s own motion, we recall the mandate, withdraw the order and

judgment filed on January 24, 1997, and vacate the judgment. A substitute order

and judgment is filed this date.

Appellant filed a petition for rehearing which challenges portions of the

order and judgment that are unaffected by this revision. The petition for

rehearing is denied. Entered for the Court PATRICK FISHER, Clerk

By Ardell Schuler Deputy Clerk F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 20 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

v. No. 96-6135 (D.C. No. CV-95-190-C) STEVE HARGETT, ATTORNEY (W.D. Okla.) GENERAL OF THE STATE OF OKLAHOMA,

ORDER AND JUDGMENT *

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Petitioner-appellant Sonny Lauren Harmon, a state prisoner appearing pro

se and in forma pauperis, appeals from the district court’s denial of his petition

for habeas relief filed under 28 U.S.C. § 2254. We dismiss the appeal.

When petitioner filed his notice of appeal on April 5, 1996, the prerequisite

to an appeal from the denial of a § 2254 petition was a certificate of probable

cause. The district court denied petitioner’s motion for a certificate of probable

cause, and petitioner filed a motion for a certificate of probable cause in this

court which has not been decided. With the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(Apr. 24, 1996), the certificate of probable cause is replaced by the certificate of

appealability, which may issue “only if the applicant has made a substantial

showing of the denial of constitutional right,” see 28 U.S.C. § 2253(c)(2).

Because the standards for obtaining a certificate of appealability are the same as

the previous standards for obtaining a certificate of probable cause, we apply the

amended statute to pending cases such as this one. See Lennox v. Evans, 87 F.3d

431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997). We conclude that

petitioner has not made the required showing.

In March 1993, petitioner pled guilty in Cleveland County, Oklahoma, to a

charge of escape from a penal institution. See R. Doc. 2, ex. 2 at 1. Petitioner

was sentenced to three years’ imprisonment, “to run consecutive to any term

-2- defendant is currently serving and . . . also to run concurrent with Grady County

Case # CF-92-160.” Id. at 2. At the time of sentencing, petitioner was serving a

sentence out of Garvin County and, unbeknownst to the Cleveland County district

court or prosecutor, had also already been sentenced on the Grady County charge.

Because the Grady County sentence had been ordered to run concurrent with the

Garvin County sentence, the sentence on the Cleveland County charge could not

be served as pronounced. Therefore, three months after entering the sentence, the

Cleveland County court amended its sentence to run consecutively to both the

Garvin and Grady County sentences.

Petitioner filed this petition for relief, which was denied. On appeal,

petitioner contends that: (1) the sentencing court lacked jurisdiction to amend the

sentence; (2) the trial court failed to properly advise him of his right to appeal the

amendment and, as a result, he was denied an appeal through no fault of his own;

and (3) he was denied effective assistance of counsel at the sentencing hearing.

Petitioner’s claims of error are without merit. First, the state trial court’s

exercise of jurisdiction to amend petitioner’s sentence raises a question of state

law that we will not overturn unless it conflicts “with fundamental principles of

liberty and justice.” Ewing v. Winans, 749 F.2d 607, 609 (10th Cir. 1984),

limited by Martinez v. Sullivan, 881 F.2d 921, 926 n.2 (10th Cir. 1989)

(modifying Ewing on a point not relevant here). In this case, it clearly does not.

-3- The record confirms that the parties intended that petitioner’s Cleveland County

sentence would run consecutive to any other sentence he was then serving, which

actually included his Grady County sentence as well as his Garvin County

sentence. The Oklahoma Court of Criminal Appeals determined that the

Cleveland County court acted properly in amending its sentence. R. Doc. 2,

ex. 12. We also have previously held “that courts have the power and the duty to

correct judgments containing clerical errors or judgments issued due to

inadvertence or mistake.” Security Mut. Cas. Co. v. Century Cas. Co., 621 F.2d

1062, 1065 (10th Cir. 1980). Therefore, we find no error of constitutional

dimension here.

Petitioner’s second claim of error fails as well. The federal constitution

does not require state courts to inform criminal defendants who plead guilty of

their right to appeal. See Laycock v. New Mexico, 880 F.2d 1184, 1187-88 (10th

Cir. 1989) (citing Crow v. United States, 397 F.2d 284, 285 (10th Cir. 1968).

Further, a defense attorney’s obligation to advise a defendant who has pled guilty

of his appeal rights is limited to cases where: (1) a claim of constitutional error

which could result in setting aside the plea is made; or (2) the defendant inquires

about his appeal rights. See id. Neither situation exists in this case.

-4- Because petitioner’s claim of ineffective assistance of counsel is based on

his first two claims of error and we have determined them to be without merit, his

ineffective assistance claim fails as well.

Finally, petitioner asks us to order transcripts of the sentencing hearings.

We see no reason to do so, as petitioner does not give any indication at all what

they will show to effectively counter the state trial court exhibits that have

already been provided.

Because petitioner has failed to make the required showing, he is not

entitled to a certificate of appealability. Petitioner’s application for a certificate

of appealability is DENIED, and his appeal is DISMISSED. The mandate shall

issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge

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