F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 15 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
TOMMY JAMES C. RAVEN,
Petitioner-Appellant,
v. No. 98-6472 (W.D. Okla.) ATTORNEY GENERAL OF THE (D.Ct. No. 96-CV-1781-T) STATE OF OKLAHOMA,
Respondent-Appellee. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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(G). 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Appellant Tommy Raven, a state inmate appearing pro se, appeals the
district court's decision denying his habeas corpus petition filed pursuant to 28
U.S.C. § 2254. We grant Mr. Raven's motion for leave to proceed on appeal in
forma pauperis, deny his request for a certificate of appealability, and dismiss the
appeal.
On December 28, 1989, Mr. Raven pled guilty to “Murder in the First
Degree, After Former Conviction of Two or More Felonies” for the murder of
Richard Robinson, who sustained a slit throat and multiple stab wounds. In his
guilty plea, Mr. Raven stated “I stabbed Richard Robinson with a knife by cutting
his throat. I intended to kill him at the time I cut his throat.” The following day,
he filed pro se a motion to withdraw his plea claiming his counsel coerced him
into entering his guilty plea. The Oklahoma trial court allowed Mr. Raven's
counsel to withdraw, appointed new counsel, and held a hearing on the motion to
withdraw the guilty plea. The trial court then denied the motion to withdraw the
guilty plea and entered the minimum sentence of life imprisonment with the
possibility of parole.
After reviewing Mr. Raven's brief, the original record, and the hearing
transcripts, the Court of Criminal Appeals affirmed the trial court conviction and
-2- sentence, concluding no evidence supported Mr. Raven's claims that: (1) his
attorney provided ineffective assistance of counsel; (2) his guilty plea was not
free and voluntary; (3) the trial court abused its discretion in denying his motion
to withdraw his guilty plea; (4) the trial court failed to establish a sufficient
factual basis for his plea; and (5) if he “was required to disclose the nature of his
defense at the hearing on the motion to withdraw his guilty plea, then [he] was
deprived of effective assistance of counsel with his second attorney.”
In his § 2254 petition, Mr. Raven again challenged his conviction and
sentence, alleging ineffective assistance of counsel because his counsel coerced
him into a guilty plea. Specifically, he claimed his counsel threatened him by
stating she would not represent him if he entered a plea of not guilty and that his
fiancee and her mother would be charged with conspiracy of first degree murder.
He also alleged that at the time he entered the guilty plea, he did not know “what
was going on.”
The district court referred the petition to a magistrate judge who prepared a
comprehensive Report and Recommendation recommending denial of Mr. Raven's
petition. The magistrate judge, after a thorough discussion of the contents of the
transcripts on the plea and motion to withdraw plea hearings, determined the
-3- record did not support Mr. Raven's claim that his attorney coerced his guilty plea.
The magistrate judge noted Mr. Raven offered no evidence to support his
conclusory assertions or to refute the evidence set forth in the guilty plea and
withdrawal of plea hearings transcripts, or his counsel's affidavit. The magistrate
judge further concluded Mr. Raven voluntarily entered his guilty plea and “his
plea agreement to life imprisonment, in the face of a possible sentence of death,
was a ‘strategic choice based upon his sober consideration of the alternatives.’”
The magistrate judge found Mr. Raven failed to demonstrate inadequate and
prejudicial performance by counsel as required under Strickland v. Washington,
466 U.S. 668 (1984), and therefore failed to show adjudication of his claim by the
state appellate court “was contrary or an unreasonable application of clearly
established federal law ... or ... was based on an unreasonable determination of
the facts in light of the evidence.” The district court adopted the magistrate
judge's Report and Recommendation in full and denied the petition.
On appeal, Mr. Raven asserts his ineffective assistance of counsel claim on
the same grounds as in his petition. He also claims the district court: (1) applied
the wrong standard of review because the magistrate judge gave the state court's
factual findings and legal determinations deference, and (2) applied the wrong
analysis in reviewing his ineffective assistance of counsel claim. In addition,
-4- while Mr. Raven does not deny he killed Mr. Robinson by slitting his throat and
stabbing him multiple times, he suggests he killed him in self-defense after Mr.
Robinson entered his grandfather's home, where Mr. Raven was staying, and
began violently attacking Mr. Raven.
We review de novo the district court's conclusions of law in denying Mr.
Raven's § 2254 petition and give a presumption of correctness to the state court's
factual findings if they are fairly supported by the record. See Hatch v.
Oklahoma, 58 F.3d 1447, 1453 (10th Cir. 1995), cert. denied, 517 U.S. 1235
(1996). We review mixed questions of law and fact de novo. Id.
Our review of the district court's decision shows that the magistrate judge
gave the state court an appropriate amount of deference. In explaining the federal
court's review of a state court adjudication, the magistrate judge correctly used
our decision in Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997), to
explain that under the provisions of the Anti-Terrorism and Effective Death
Penalty Act, “the deference to be paid by the federal court to the state court's
factual findings and legal determinations' has been increased.” The magistrate
judge also used the correct analysis in considering Mr. Raven's ineffective
assistance of counsel claim by applying the standards set forth in Strickland, 466
-5- U.S. at 687, and Hill v. Lockhart, 474 U.S. 52, 57-58 (1985), which adopts the
Strickland standard for claims of ineffective assistance of counsel, such as this
case, which arise out of the plea process.
As to Mr. Raven's ineffective assistance of counsel claim, we note Mr.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 15 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
TOMMY JAMES C. RAVEN,
Petitioner-Appellant,
v. No. 98-6472 (W.D. Okla.) ATTORNEY GENERAL OF THE (D.Ct. No. 96-CV-1781-T) STATE OF OKLAHOMA,
Respondent-Appellee. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, 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(G). 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. Appellant Tommy Raven, a state inmate appearing pro se, appeals the
district court's decision denying his habeas corpus petition filed pursuant to 28
U.S.C. § 2254. We grant Mr. Raven's motion for leave to proceed on appeal in
forma pauperis, deny his request for a certificate of appealability, and dismiss the
appeal.
On December 28, 1989, Mr. Raven pled guilty to “Murder in the First
Degree, After Former Conviction of Two or More Felonies” for the murder of
Richard Robinson, who sustained a slit throat and multiple stab wounds. In his
guilty plea, Mr. Raven stated “I stabbed Richard Robinson with a knife by cutting
his throat. I intended to kill him at the time I cut his throat.” The following day,
he filed pro se a motion to withdraw his plea claiming his counsel coerced him
into entering his guilty plea. The Oklahoma trial court allowed Mr. Raven's
counsel to withdraw, appointed new counsel, and held a hearing on the motion to
withdraw the guilty plea. The trial court then denied the motion to withdraw the
guilty plea and entered the minimum sentence of life imprisonment with the
possibility of parole.
After reviewing Mr. Raven's brief, the original record, and the hearing
transcripts, the Court of Criminal Appeals affirmed the trial court conviction and
-2- sentence, concluding no evidence supported Mr. Raven's claims that: (1) his
attorney provided ineffective assistance of counsel; (2) his guilty plea was not
free and voluntary; (3) the trial court abused its discretion in denying his motion
to withdraw his guilty plea; (4) the trial court failed to establish a sufficient
factual basis for his plea; and (5) if he “was required to disclose the nature of his
defense at the hearing on the motion to withdraw his guilty plea, then [he] was
deprived of effective assistance of counsel with his second attorney.”
In his § 2254 petition, Mr. Raven again challenged his conviction and
sentence, alleging ineffective assistance of counsel because his counsel coerced
him into a guilty plea. Specifically, he claimed his counsel threatened him by
stating she would not represent him if he entered a plea of not guilty and that his
fiancee and her mother would be charged with conspiracy of first degree murder.
He also alleged that at the time he entered the guilty plea, he did not know “what
was going on.”
The district court referred the petition to a magistrate judge who prepared a
comprehensive Report and Recommendation recommending denial of Mr. Raven's
petition. The magistrate judge, after a thorough discussion of the contents of the
transcripts on the plea and motion to withdraw plea hearings, determined the
-3- record did not support Mr. Raven's claim that his attorney coerced his guilty plea.
The magistrate judge noted Mr. Raven offered no evidence to support his
conclusory assertions or to refute the evidence set forth in the guilty plea and
withdrawal of plea hearings transcripts, or his counsel's affidavit. The magistrate
judge further concluded Mr. Raven voluntarily entered his guilty plea and “his
plea agreement to life imprisonment, in the face of a possible sentence of death,
was a ‘strategic choice based upon his sober consideration of the alternatives.’”
The magistrate judge found Mr. Raven failed to demonstrate inadequate and
prejudicial performance by counsel as required under Strickland v. Washington,
466 U.S. 668 (1984), and therefore failed to show adjudication of his claim by the
state appellate court “was contrary or an unreasonable application of clearly
established federal law ... or ... was based on an unreasonable determination of
the facts in light of the evidence.” The district court adopted the magistrate
judge's Report and Recommendation in full and denied the petition.
On appeal, Mr. Raven asserts his ineffective assistance of counsel claim on
the same grounds as in his petition. He also claims the district court: (1) applied
the wrong standard of review because the magistrate judge gave the state court's
factual findings and legal determinations deference, and (2) applied the wrong
analysis in reviewing his ineffective assistance of counsel claim. In addition,
-4- while Mr. Raven does not deny he killed Mr. Robinson by slitting his throat and
stabbing him multiple times, he suggests he killed him in self-defense after Mr.
Robinson entered his grandfather's home, where Mr. Raven was staying, and
began violently attacking Mr. Raven.
We review de novo the district court's conclusions of law in denying Mr.
Raven's § 2254 petition and give a presumption of correctness to the state court's
factual findings if they are fairly supported by the record. See Hatch v.
Oklahoma, 58 F.3d 1447, 1453 (10th Cir. 1995), cert. denied, 517 U.S. 1235
(1996). We review mixed questions of law and fact de novo. Id.
Our review of the district court's decision shows that the magistrate judge
gave the state court an appropriate amount of deference. In explaining the federal
court's review of a state court adjudication, the magistrate judge correctly used
our decision in Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997), to
explain that under the provisions of the Anti-Terrorism and Effective Death
Penalty Act, “the deference to be paid by the federal court to the state court's
factual findings and legal determinations' has been increased.” The magistrate
judge also used the correct analysis in considering Mr. Raven's ineffective
assistance of counsel claim by applying the standards set forth in Strickland, 466
-5- U.S. at 687, and Hill v. Lockhart, 474 U.S. 52, 57-58 (1985), which adopts the
Strickland standard for claims of ineffective assistance of counsel, such as this
case, which arise out of the plea process.
As to Mr. Raven's ineffective assistance of counsel claim, we note Mr.
Raven failed to provide the transcripts of the plea hearing and motion to withdraw
the plea hearing for our review. Mr. Raven is responsible for insuring all
materials on which he seeks to rely are part of the record on appeal. United
States v. Vasquez, 985 F.2d 491, 495 (10th Cir. 1993). “When [an] appellant
asserts that his conviction should be reversed because of a particular error, and
the record does not permit us to evaluate the claim, we will generally refuse to
consider it.” Id. Nevertheless, because the record contains other evidence
supporting the district court's decision, we exercise our discretion to review the
claim. In this case, the state trial court's summary of facts concerning Mr.
Raven's guilty plea shows he affirmatively stated: (1) he understood he had the
right to plead not guilty, and by pleading guilty he knowingly gave up his right to
a jury trial; (2) he was guilty and did the acts charged; (3) his attorney served him
well; and (4) he pled guilty of his own free will, without coercion, force, abuse,
or threats. In addition, both the Oklahoma Court of Criminal Appeals and the
district court reviewed the plea and motion to withdraw hearings transcripts, and
-6- based on that review, determined Mr. Raven knowingly and voluntarily entered
his guilty plea and his attorney provided effective assistance of counsel. In fact,
the district court provided a lengthy summary of the testimony in those transcripts
that we have reviewed. Our record also contains an affidavit of Mr. Raven's
attorney stating she never threatened or intimidated Mr. Raven.
The only evidence Mr. Raven offers to rebut this evidence is the affidavit
of his fiancee's mother, who alleges: (1) she witnessed Mr. Raven and his
attorney arguing over whether he should plead guilty; (2) Mr. Raven appeared
“confused, upset, and looked as if he wanted to cry”; and (3) his attorney
somehow inappropriately filled out papers for him to sign. 1 However, her
affidavit itself is somewhat confusing, and it is unclear whether she was able to
hear and understand the entire conversation between Mr. Raven and his attorney.
She admits, however, his attorney “only stated that the deal is on the table” and
that after Mr. Raven and the judge talked, he “entered his plea.” Thus, the record
persuades us Mr. Raven's guilty plea was knowing and voluntary, and Mr. Raven
1 As to Mr. Raven's assertion that his affidavit is somehow invalid because his attorney filled it out, his plea affidavit states that “[i]t was written by my attorney” and that the above statement of the crime “is not in my own handwriting.” The affidavit is signed by Mr. Raven. Thus, the state trial court was aware Mr. Raven did not author the affidavit, and his plea is not invalid for that reason.
-7- has provided insufficient evidence to show otherwise.
In addition to his guilty plea contentions, we review Mr. Raven’s other
contentions concerning his attorney’s ineffective assistance. For the limited
purpose of evaluating the performance of Mr. Raven's counsel, we review the
weight of the evidence in the record concerning the crime for which he was
convicted. The victim, Mr. Robinson, received multiple stab wounds and a slit
throat, while Mr. Raven suffered apparently little or no injury even though he
claims he killed in self-defense. The photos of the crime scene evidently show an
extremely gruesome sight, which, as his attorney advised, would be highly
prejudicial when viewed by a jury. Although Mr. Raven claims he attempted to
take the victim to the hospital, he admits he fled after the victim died in his car,
and then apparently attempted to mop up the blood on the driveway and porch
prior to his arrest. While Mr. Raven contends he killed Mr. Robinson in self-
defense and he can produce witnesses to prove it, the magistrate judge correctly
determined he offers no evidence to support this conclusory assertion. In light of
the weight of the evidence against Mr. Raven and the impending possibility of a
death sentence, we agree with the magistrate judge that Mr. Raven's attorney's
advice concerning entering a guilty plea was a “strategic choice based on [her]
sober consideration of the alternatives.” Thus, Mr. Raven has not shown his
-8- attorney's conduct fell below an objective standard of reasonableness or that her
performance, even if deficient, prejudiced him. See Strickland, 466 U.S. at 687.
In order to obtain a certificate of appealability, a petitioner must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied,
519 U.S. 1081 (1997). After reviewing the record and Mr. Raven's arguments, we
conclude he fails to make the required showing.
Accordingly, we grant Mr. Raven's request to proceed on appeal without
payment of costs, deny his request for a certificate of appealability, and DISMISS
the appeal.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-9-