F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 TENTH CIRCUIT PATRICK FISHER Clerk
MICHAEL JEFFRIES,
Petitioner-Appellant,
v. No. 97-6229 (D.C. No. 97-CV-580) STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, 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); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Petitioner Michael Jeffries, appearing pro se, requests a certificate of
appealability to appeal the district court’s dismissal of his motion to vacate, set
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2254. This court will
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. issue a certificate of appealability when a petitioner makes a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). We deny the
request and dismiss the appeal.
Jeffries pleaded guilty to armed robbery after conviction of two or more
felonies in 1988 and was sentenced to life imprisonment. 1 Jeffries failed to
withdraw his guilty plea within the ten-day period allowed by Oklahoma law, but
on May 16, 1988, he filed a request to withdraw his guilty plea, which was
denied. On October 12, 1990, he sought review from the Oklahoma Court of
Criminal Appeals, arguing the district court failed to inquire into the factual basis
for his guilty plea and imposed an excessive sentence, which was denied. Jeffries
filed a second request for review, arguing the information charging him with
armed robbery was insufficient to establish subject matter jurisdiction and that he
was denied effective assistance of counsel at trial and on appeal. The Oklahoma
Court of Criminal Appeals rejected his claims and affirmed the district court’s
decision to deny post-conviction relief.
1 Jeffries pleaded guilty to two counts of second-degree burglary in October 1984, to concealing stolen property in February 1985, and to three counts of second-degree burglary in June 1985. He did not file a direct appeal from any of the convictions but, on May 28, 1996, he filed a request for an appeal out of time, arguing his prior convictions should be set aside because he was not advised he could withdraw his guilty plea or appeal. The state court denied his request, finding he had been advised of his rights. The Oklahoma Court of Criminal Appeals affirmed the denial.
-2- Jeffries filed his § 2254 petition on April 17, 1997, contending he was not
advised of his right to withdraw his guilty plea or to appeal and that he was
denied due process by the court’s denial of his request to appeal out of time. The
district court adopted the magistrate’s findings and recommendation and denied
the petition. As a basis for issuing a certificate of appealability, Jeffries contends
his constitutional rights were violated when his prior convictions were used to
enhance his present sentence because he was not advised of his right to withdraw
his guilty plea or to appeal his conviction.
In-custody Requirement
Jeffries argues his prior convictions used to enhance his sentence are
invalid. He acknowledges the sentences for the prior convictions have expired
and that he is no longer “in custody” for purposes of the prior convictions.
Nevertheless, he argues he is entitled to relief based on the expired convictions
because they were used to enhance the sentence he is presently serving.
A habeas petitioner may not directly challenge a conviction where the
sentence has fully expired. Maleg v. Cook, 490 U.S. 488, 490-91 (1989). Despite
the collateral consequences of such a prior conviction, such a petitioner is no
longer “in custody” for purposes of federal law. Id. However, a petitioner may
challenge an unexpired conviction where the sentence has been enhanced by a
fully-expired conviction by attacking the constitutionality of the underlying fully-
-3- expired conviction. Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir. 1990).
Such an indirect attack on an expired conviction is permissible despite the fact
that a direct attack on the expired sentence is prohibited. Id. When a pro se
petitioner attacks the validity of an expired sentence and that expired sentence has
been used to enhance the conviction for which petitioner is then in custody, this
court liberally construes the petition as an attack on the unexpired sentence. See
Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992) (appropriate to liberally
construe pro se petition “as challenging his present confinement even though the
essence of his attack was the alleged unconstitutionality of the prior predicate
convictions”). Because Jeffries’ prior convictions were used to enhance his
unexpired armed robbery conviction, Jeffries may challenge those prior
convictions in his habeas petition.
Failure to Exhaust State Remedies
Although Jeffries is “in custody” for purposes of his armed robbery
conviction and may therefore challenge the allegedly unconstitutional nature of
his prior guilty pleas, he has not made such a challenge in state court. In state
court, Jeffries has argued (1) the court committed error during the plea hearing in
which he pleaded guilty to armed robbery; (2) he received an excessive sentence;
(3) the information was insufficient to establish subject matter jurisdiction; and
(4) he received ineffective assistance of counsel at trial and on appeal. Since
-4- Jeffries has not presented the instant claim in state court, he has failed to exhaust
his available state remedies. See 28 U.S.C. § 2254(b); Steele v. Young, 11 F.3d
1518, 1523 (10th Cir. 1993).
Procedurally Barred
“On habeas review, we do not address issues that have been defaulted in
state court on an independent and adequate state procedural ground, unless cause
and prejudice or a fundamental miscarriage of justice is shown.” Id. at 1521
(citing Coleman v. Thompson, 501 U.S. 722 (1991)). Oklahoma law requires
Jeffries to present his claim regarding invalidity of his prior convictions in his
first request for post-conviction relief. See Okla. Stat. tit. 22, § 1086 (all
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 TENTH CIRCUIT PATRICK FISHER Clerk
MICHAEL JEFFRIES,
Petitioner-Appellant,
v. No. 97-6229 (D.C. No. 97-CV-580) STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, 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); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Petitioner Michael Jeffries, appearing pro se, requests a certificate of
appealability to appeal the district court’s dismissal of his motion to vacate, set
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2254. This court will
* 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. issue a certificate of appealability when a petitioner makes a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). We deny the
request and dismiss the appeal.
Jeffries pleaded guilty to armed robbery after conviction of two or more
felonies in 1988 and was sentenced to life imprisonment. 1 Jeffries failed to
withdraw his guilty plea within the ten-day period allowed by Oklahoma law, but
on May 16, 1988, he filed a request to withdraw his guilty plea, which was
denied. On October 12, 1990, he sought review from the Oklahoma Court of
Criminal Appeals, arguing the district court failed to inquire into the factual basis
for his guilty plea and imposed an excessive sentence, which was denied. Jeffries
filed a second request for review, arguing the information charging him with
armed robbery was insufficient to establish subject matter jurisdiction and that he
was denied effective assistance of counsel at trial and on appeal. The Oklahoma
Court of Criminal Appeals rejected his claims and affirmed the district court’s
decision to deny post-conviction relief.
1 Jeffries pleaded guilty to two counts of second-degree burglary in October 1984, to concealing stolen property in February 1985, and to three counts of second-degree burglary in June 1985. He did not file a direct appeal from any of the convictions but, on May 28, 1996, he filed a request for an appeal out of time, arguing his prior convictions should be set aside because he was not advised he could withdraw his guilty plea or appeal. The state court denied his request, finding he had been advised of his rights. The Oklahoma Court of Criminal Appeals affirmed the denial.
-2- Jeffries filed his § 2254 petition on April 17, 1997, contending he was not
advised of his right to withdraw his guilty plea or to appeal and that he was
denied due process by the court’s denial of his request to appeal out of time. The
district court adopted the magistrate’s findings and recommendation and denied
the petition. As a basis for issuing a certificate of appealability, Jeffries contends
his constitutional rights were violated when his prior convictions were used to
enhance his present sentence because he was not advised of his right to withdraw
his guilty plea or to appeal his conviction.
In-custody Requirement
Jeffries argues his prior convictions used to enhance his sentence are
invalid. He acknowledges the sentences for the prior convictions have expired
and that he is no longer “in custody” for purposes of the prior convictions.
Nevertheless, he argues he is entitled to relief based on the expired convictions
because they were used to enhance the sentence he is presently serving.
A habeas petitioner may not directly challenge a conviction where the
sentence has fully expired. Maleg v. Cook, 490 U.S. 488, 490-91 (1989). Despite
the collateral consequences of such a prior conviction, such a petitioner is no
longer “in custody” for purposes of federal law. Id. However, a petitioner may
challenge an unexpired conviction where the sentence has been enhanced by a
fully-expired conviction by attacking the constitutionality of the underlying fully-
-3- expired conviction. Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir. 1990).
Such an indirect attack on an expired conviction is permissible despite the fact
that a direct attack on the expired sentence is prohibited. Id. When a pro se
petitioner attacks the validity of an expired sentence and that expired sentence has
been used to enhance the conviction for which petitioner is then in custody, this
court liberally construes the petition as an attack on the unexpired sentence. See
Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992) (appropriate to liberally
construe pro se petition “as challenging his present confinement even though the
essence of his attack was the alleged unconstitutionality of the prior predicate
convictions”). Because Jeffries’ prior convictions were used to enhance his
unexpired armed robbery conviction, Jeffries may challenge those prior
convictions in his habeas petition.
Failure to Exhaust State Remedies
Although Jeffries is “in custody” for purposes of his armed robbery
conviction and may therefore challenge the allegedly unconstitutional nature of
his prior guilty pleas, he has not made such a challenge in state court. In state
court, Jeffries has argued (1) the court committed error during the plea hearing in
which he pleaded guilty to armed robbery; (2) he received an excessive sentence;
(3) the information was insufficient to establish subject matter jurisdiction; and
(4) he received ineffective assistance of counsel at trial and on appeal. Since
-4- Jeffries has not presented the instant claim in state court, he has failed to exhaust
his available state remedies. See 28 U.S.C. § 2254(b); Steele v. Young, 11 F.3d
1518, 1523 (10th Cir. 1993).
Procedurally Barred
“On habeas review, we do not address issues that have been defaulted in
state court on an independent and adequate state procedural ground, unless cause
and prejudice or a fundamental miscarriage of justice is shown.” Id. at 1521
(citing Coleman v. Thompson, 501 U.S. 722 (1991)). Oklahoma law requires
Jeffries to present his claim regarding invalidity of his prior convictions in his
first request for post-conviction relief. See Okla. Stat. tit. 22, § 1086 (all
possible grounds for relief must be raised in original application for post-
conviction relief); see also Castro v. State, 880 P.2d 387, 388 (Okla. 1994). His
sentence enhancement claim was defaulted in state court on an independent and
adequate state procedural ground when he failed to include it in his first request
for post-conviction relief. See Steele, 11 F.3d at 1522, 1524.
Moreover, Jeffries has failed to show cause for the default, or actual
prejudice resulting from violation of federal law, or that the federal court’s failure
to review the claim will result in a fundamental miscarriage of justice. See id. at
1522. As the magistrate concluded, it was in Jeffries’ best interests to plead
guilty to the charges and obtain the benefit of the plea bargain. The “fundamental
-5- miscarriage of justice” burden is satisfied when a petitioner produces facts that
amount to a “colorable showing of factual innocence.” Kuhlmann v. Wilson, 477
U.S. 436, 454 (1986). Although Jeffries’ sentence was enhanced on the basis of
his underlying convictions, he has not even attempted to show he is factually
innocent of those crimes.
Claim Fails on the Merits
Even if Jeffries’ claim was not procedurally barred, it would fail on the
merits. It is clear from the face of each of the plea agreements that Jeffries was
informed of his right to withdraw his guilty plea. After entering a guilty plea, the
only issue that may be challenged by a habeas petitioner is whether the plea was
entered knowingly and voluntarily. See Tollett v. Henderson, 411 U.S. 258, 267
(1973). The record plainly reflects Jeffries knowingly and voluntarily entered
guilty pleas to his prior convictions. Since his challenge to his armed robbery
conviction is based on the validity of his prior convictions, he has not made a
substantial showing of the denial of a constitutional right.
The certificate of appealability is DENIED and the appeal is DISMISSED.
The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-6-