Redwine v. Scott

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 14, 1999
• Docket: 98-6278
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 14 1999 TENTH CIRCUIT PATRICK FISHER Clerk

DAVID REDWINE,

Petitioner-Appellant, v.

H.N. “SONNY” SCOTT, Warden, No. 98-6278 (D.C. No. 97-CV-359-R) Respondent-Appellee, (W.D. Okla.)

COMANCHE COUNTY DISTRICT COURT,

Respondent.

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

Proceeding pro se, David Redwine seeks a certificate of appealability to

challenge the district court’s denial of his application for a writ of habeas corpus,

* After examining appellant’s brief and the 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(f) and 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 This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. and also moves to proceed in forma pauperis (“IFP”). For the reasons set forth

below, we deny both requests.

On January 31, 1995, Redwine pled guilty in the District Court of

Comanche County, Oklahoma, to robbery in the first degree by force and fear, and

was sentenced to twenty-five years’ imprisonment. (See R.# 21, Mag. Rep at 1.)

Redwine failed to withdraw his guilty plea within the allotted ten-day period, and

otherwise failed to appeal his conviction. (See id. at 2.) However, he

subsequently filed an application for state post-conviction relief, which was

denied by the state district court. (See id.) Redwine appealed to the Oklahoma

Court of Criminal Appeals, but the court dismissed the appeal, finding it barred

because Redwine failed to submit either a filing fee or pauper’s affidavit within

the required time period. (See id.) Redwine later filed a second application for

post-conviction relief. The state district court denied the petition as procedurally

barred, and the Oklahoma Court of Criminal Appeals affirmed, stating in

pertinent part:

The [post-conviction] provisions of 22 O.S. 1991, § 1080, are not a substitute for a direct appeal. Permitting one to by-pass or waive a timely and direct appeal and proceed under 22 O.S. 1991, § 1080, without supplying sufficient reason erodes the limitations and undermines the purpose of the statutory direct appeal. Petitioner’s application fails to articulate sufficient reason explaining his failure to timely file a certiorari appeal . . . .

(See id. at 2-3 (internal citations omitted).)

-2- Redwine subsequently filed an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the federal district court, alleging relief on the

grounds that the charging Information was not verified by the prosecuting

attorney and was not signed by a judge until he had been confined for ten months.

(See R.#1, Habeas Pet. at 1; R. # 21, Mag. Rep. at 1.) The district court referred

the application to a magistrate judge, who recommended that the petition be

dismissed because the procedural default noted by the Oklahoma Court of

Criminal Appeals was an independent and adequate state ground, and because

Redwine failed to demonstrate cause for the default, or to demonstrate that failure

to consider his claims would result in a fundamental miscarriage of justice. (See

id. at 3-5 (citing, inter alia, Coleman v. Thompson, 501 U.S. 722, 750 (1991) (if

state procedural bar rests on independent and adequate state grounds, habeas

review also is barred “unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice”).)

Redwine filed a timely objection to the magistrate judge’s Report and

Recommendation, and in reviewing the objections the district court found that

Redwine had raised additional facts not presented to or considered by the

magistrate judge. (See R.# 41, Mag. Supp. Rep. at 1, 3.) Consequently, the

-3- district court remanded the matter to the magistrate judge for a Supplemental

Report and Recommendation in light of the objections. (See R.# 31, Order at 2-

3.) The magistrate judge subsequently issued a Supplemental Report and

Recommendation, which found that the additional facts failed to demonstrate

cause, and again recommended that the habeas petition be denied because

Redwine’s claims were procedurally barred. (See R.# 41, Mag. Supp. Rep. at 7.)

On May 22, 1998, the district court adopted the Supplemental Report and

Recommendation and denied Redwine the writ of habeas corpus. (See R.# 47 at

1.)

Redwine then filed a motion for reconsideration and objections to the

Supplemental Report and Recommendation. (See id. at 1-2.) The district court

treated the motion and objections together as a motion to vacate and concluded

that no relief was warranted. (See id. at 2-3.) On July 29, 1998, the district court

denied Redwine’s application for a certificate of appealability because he failed

to make a “substantial showing of the denial of constitutional right” as required

by 28 U.S.C. § 2253(c)(2), and denied his motion for IFP status because the

appeal was not taken in good faith. (See R.# 53, Order at 1-2.) In this court,

Redwine renews his request for a certificate of appealability and IFP status.

Redwine devotes a good portion of his brief to allegations of ineffective

assistance of counsel, but for the most part fails to refute the specific reasons why

-4- the district court, adopting the magistrate judge’s findings and recommendations,

held Redwine’s claims barred by Coleman v. Thompson. Although Redwine

asserted ineffective assistance of counsel as one cause for his default, the

magistrate judge correctly stated that, after a guilty plea, counsel is required to

advise a defendant of his appeal right only if (1) the defendant inquires about it,

or (2) a claim of error is made on constitutional grounds which could set aside the

plea and about which counsel knew or should have known. (See R.# 21, Mag.

Rep. at 4-5 (citing Hardiman v. Reynolds, 971 F.2d 500, 506 (10th Cir. 1992);

Laylock v. Mexico, 880 F.2d 1184, 1187 (10th Cir. 1989).)

Although Redwine pointed to his counsel’s failure to contact him during

the ten-day period for withdrawing his guilty plea, the magistrate judge observed

that Redwine “makes no allegation that he contacted his counsel about an appeal

during the relevant ten-day time period,” and thus is precluded from asserting

ineffective assistance of counsel under the first prong of Laylock. (See id. at 5.)

With regard to the second prong, Redwine alleged that his counsel knew the

charging Information was not verified by the trial judge during his preliminary

hearing. Redwine also alleged that his appointed counsel informed him that he

could get a plea of less than twenty years, but a “stand-in” attorney who

represented him during the plea proceeding informed him that the government’s

offer was for twenty-five years. The magistrate judge found these allegations

-5- insufficient to warrant setting aside the guilty plea, as a guilty plea is generally

subject to collateral attack only on the ground that it was not knowingly and

voluntarily entered. (See id. at 5 (citing Tollett v. Henderson, 411 U.S. 258

(1973) (guilty plea generally subject to collateral attack only on ground that it was

not knowingly and voluntarily entered); Lefkowitz v. Newsome, 420 U.S. 283,

288 (1975) (generally, guilty plea intelligently and voluntarily made bars later

challenges to pretrial proceedings); see also R.# 41, Mag. Supp. Rep. at 4.) The

magistrate judge noted that there was every indication that Redwine knew he

would receive twenty-five years under the plea bargain and voluntarily accepted it

in lieu of going to trial and facing a possible life sentence. (See R.# 41, Mag.

Supp. Rep. at 6.)

As another cause for his procedural default, Redwine asserted that he was

not provided with a transcript. The magistrate judge noted, however, that

Redwine would be constitutionally entitled to a transcript only if such was

necessary for the resolution of his appeal, but that a transcript was not necessary

to discover any defects in the charging Information. (See id. at 6 (citing Britt v.

North Carolina, 404 U.S. 226 (1971); Williams v. Oklahoma City, 395 U.S. 458,

459 (1969).)

In his brief, Redwine briefly presents two facts which touch upon the

district court’s finding of procedural bar. First, Redwine submits an affidavit

-6- supporting one claim of cause for his default, namely, that he was not provided

with a transcript for an appeal. The first Report and Recommendation stated that

Redwine did not seek a transcript at public expense, but Redwine swears in his

affidavit that he twice moved for a transcript at public expense. (See Aplt. Br.,

“Sworn Affidavit.”) Second, Redwine states that, during the seventeen days after

sentencing when he remained in the county jail, he had written numerous letters to

his appointed attorney, but did not receive a response. (See id. at 7-8.)

We reject Redwine’s claim that the lack of a transcript could be cause for

his default. The magistrate judge correctly observed that the lack of a transcript

could not constitute cause excusing Redwine’s default because a transcript was

not needed to discover any defects in the charging Information which Redwine

challenged. (See R.# 21, Mag. Rep. at 6.)

As for Redwine’s assertion that he wrote to counsel in the seventeen days

following his conviction without response, this contention falls short of alleging

that he asked counsel about his appeal rights during the ten-day period for

withdrawing his guilty plea. In his habeas petition, Redwine did not allege that

he wrote to counsel, but merely stated that, after the guilty plea had been entered,

“[s]till no contact had been made with the Petitioner’s Public Defender.” (R.#1,

Habeas Pet. at 12.) Even with liberal construction for Redwine as a pro se

petitioner, see Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), we

-7- cannot construe this vague statement as a declaration that Redwine had tried to

contact his attorney to inquire into his appeal rights after entry of his guilty plea.

If Redwine did in fact try to contact his attorney, as Redwine asserts in his brief,

and if he did so to inquire about his appeal rights, then the proper vehicle for

Redwine to present such evidence not previously raised is a second application

for habeas relief, although Redwine would have to show that the “factual

predicate for the claim could not have been discovered previously through the

exercise of due diligence.” 28 U.S.C. § 2244(b)(2). In the petition before us, we

find that Redwine has failed to demonstrate that ineffective assistance of counsel

was cause for his procedural default. 1

Because Redwine is procedurally barred under Coleman v. Thompson from

presenting his claims in federal court, and has not otherwise made a substantial

showing of the denial of a constitutional right, we DENY a certificate of

1 Redwine renews other allegations regarding ineffective assistance of counsel which he raised below and which do not bear on the cause of his procedural default. Although the magistrate judge and district court did not address Redwine’s claim of ineffective assistance of counsel outside the context of cause for his procedural default, we find such an omission to be harmless, as Redwine does not make the required showing of prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984). Redwine also claims that the prosecution impermissibly reneged on a plea bargain which provided for twenty-years’ imprisonment, and instead offered a plea bargain for twenty-five years imprisonment, with the threat of a life sentence if Redwine proceeded to trial. (See Aplt. Br. at 3, 21-22.) Because Redwine did not raise this claim below, we refuse to exercise jurisdiction over it. See Sac and Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir. 1995).

-8- appealability and DISMISS the appeal. Because we agree with the district court

that Redwine’s claim is not taken in good faith, (see R.# 53, Order at 2 (citing

McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)),

we DENY his motion for IFP status.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

-9-