F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 13 1998 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
ROY DALE WALKER,
Petitioner-Appellant,
v. No. 97-6402 (W.D. Okla.) RON CHAMPION, (D.Ct. No. 97-CV-639)
Respondent-Appellee. ____________________________
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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Roy Dale Walker brings this pro se application for a certificate of
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. appealability pursuant to 28 U.S.C. § 2253, alleging his prior convictions were
improperly used to enhance the sentences at issue in this case. 1 Specifically, Mr.
Walker claims that because he was not advised of his right to appeal his prior
convictions, they are invalid and inappropriate for use in sentencing. Mr. Walker
also alleges the state trial court erred in accepting his guilty plea of “assault with
intent to commit rape” without establishing any factual basis for the plea, and in
considering pardon and parole policies in setting his sentences.
Mr. Walker plead guilty and was convicted of six counts of criminal
conduct, including assault with intent to commit rape, in four separate state court
cases. 2 These convictions followed former convictions of two or more felonies.
In the first three cases, the state court sentenced Mr. Walker to consecutive
twenty-, twenty-, and thirty-year terms of imprisonment. For each of the three
counts in the fourth case, he was sentenced to fifty years, with the three fifty-year
terms to run concurrent with one another, but consecutive to the sentences
1 Apparently, the State argued Mr. Walker’s first claim was not properly exhausted, but nevertheless elected to have this claim decided on its merits. See § 104 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
2 The first three cases included conviction for first and second degree burglaries and concealing stolen property. The fourth case included conviction for robbery with a dangerous weapon, first degree burglary, and assault with intent to commit rape.
-2- imposed in the first three cases.
On April 23, 1997, Mr. Walker filed a petition for a writ of habeas corpus.
On recommendation of a federal magistrate judge, the district court dismissed Mr.
Walker’s habeas petition. Mr. Walker then filed a Notice of Appeal, which the
district court considered as a request for a 28 U.S.C. § 2253 Certificate of
Appealability, and then denied on grounds it failed to make a “substantial
showing of the denial of a constitutional right.” 3 We agree with the district court.
We therefore deny Mr. Walker’s request for a certificate of appealability and
dismiss this appeal.
A review of the record and the magistrate judge’s findings and
recommendations supports the district court’s ruling. The magistrate judge, after
reviewing the transcript of the plea hearing, 4 found Mr. Walker had knowingly
3 The district court also denied Mr. Walker’s Motion to Proceed In Forma Pauperis on the grounds that Mr. Walker had not presented a reasoned, nonfrivolous argument and had failed to show the appeal was taken in good faith. Mr. Walker has renewed his application for in forma pauperis status in his brief on appeal. “In the absence of some evident improper motive, the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674, 674 (1958). As a pro se litigant, we give Mr. Walker the benefit of the doubt and find his appeal meets this standard. However, Mr. Walker is responsible for any obligations this creates under 28 U.S.C. § 1915(b). 4 Because the transcript was not provided in the record on appeal, we defer to the magistrate judge’s review of the transcript and his findings. When a trial transcript is not
-3- and intelligently made guilty pleas to all counts after being fully informed of the
range of punishment for each offense as enhanced by the prior convictions.
Because Mr. Walker was fully informed prior to entering his plea that his prior
convictions could be used to enhance his sentences, the magistrate judge properly
determined his subsequent pleas of guilty constitute a waiver of all
nonjurisdictional defects and defenses occurring prior to the entry of the plea. See
Barker v. United States, 579 F.2d 1219, 1225-26 (10th Cir. 1978). The magistrate
judge concluded this rule of law applies whether the attack is an independent
attack on the prior convictions or on the present enhanced sentences through a
challenge to the prior convictions. We agree. Id. at 1225-26.
The magistrate judge next reviewed Mr. Walker’s claim the trial court erred
in accepting his guilty plea to “assault with intent to commit rape,” without
establishing a factual basis for his plea. The magistrate judge found Mr. Walker
never alleged he had professed his innocence at the time he entered his guilty
plea, nor does the record contain any indication of innocence. Absent a protest of
designated as part of the record on appeal, an appellate court cannot review the district court’s factual findings and must accept them as correct. See generally United States v. Vasquez, 985 F.2d 491 (10th Cir. 1993). Because the magistrate judge summarized pertinent portions of the testimony in his report and that testimony supports his findings, we accept his findings as true.
-4- innocence at the time a plea is entered, the magistrate judge properly concluded
the trial court has no constitutional duty to establish a factual basis for his plea.
See Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001
(1971).
Lastly, the magistrate judge did not rule on Mr. Walker’s claim the trial
court improperly considered pardon and parole policies in assessing his sentence,
thereby constituting prejudicial error as a matter of state law. Rather, the
magistrate judge determined the state’s failure to follow its own law on
sentencing procedures is insufficient to warrant federal habeas corpus relief. See
Matthews v. Price, 83 F.3d 328, 331 (10th Cir.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 13 1998 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
ROY DALE WALKER,
Petitioner-Appellant,
v. No. 97-6402 (W.D. Okla.) RON CHAMPION, (D.Ct. No. 97-CV-639)
Respondent-Appellee. ____________________________
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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Roy Dale Walker brings this pro se application for a certificate of
* 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. appealability pursuant to 28 U.S.C. § 2253, alleging his prior convictions were
improperly used to enhance the sentences at issue in this case. 1 Specifically, Mr.
Walker claims that because he was not advised of his right to appeal his prior
convictions, they are invalid and inappropriate for use in sentencing. Mr. Walker
also alleges the state trial court erred in accepting his guilty plea of “assault with
intent to commit rape” without establishing any factual basis for the plea, and in
considering pardon and parole policies in setting his sentences.
Mr. Walker plead guilty and was convicted of six counts of criminal
conduct, including assault with intent to commit rape, in four separate state court
cases. 2 These convictions followed former convictions of two or more felonies.
In the first three cases, the state court sentenced Mr. Walker to consecutive
twenty-, twenty-, and thirty-year terms of imprisonment. For each of the three
counts in the fourth case, he was sentenced to fifty years, with the three fifty-year
terms to run concurrent with one another, but consecutive to the sentences
1 Apparently, the State argued Mr. Walker’s first claim was not properly exhausted, but nevertheless elected to have this claim decided on its merits. See § 104 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
2 The first three cases included conviction for first and second degree burglaries and concealing stolen property. The fourth case included conviction for robbery with a dangerous weapon, first degree burglary, and assault with intent to commit rape.
-2- imposed in the first three cases.
On April 23, 1997, Mr. Walker filed a petition for a writ of habeas corpus.
On recommendation of a federal magistrate judge, the district court dismissed Mr.
Walker’s habeas petition. Mr. Walker then filed a Notice of Appeal, which the
district court considered as a request for a 28 U.S.C. § 2253 Certificate of
Appealability, and then denied on grounds it failed to make a “substantial
showing of the denial of a constitutional right.” 3 We agree with the district court.
We therefore deny Mr. Walker’s request for a certificate of appealability and
dismiss this appeal.
A review of the record and the magistrate judge’s findings and
recommendations supports the district court’s ruling. The magistrate judge, after
reviewing the transcript of the plea hearing, 4 found Mr. Walker had knowingly
3 The district court also denied Mr. Walker’s Motion to Proceed In Forma Pauperis on the grounds that Mr. Walker had not presented a reasoned, nonfrivolous argument and had failed to show the appeal was taken in good faith. Mr. Walker has renewed his application for in forma pauperis status in his brief on appeal. “In the absence of some evident improper motive, the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674, 674 (1958). As a pro se litigant, we give Mr. Walker the benefit of the doubt and find his appeal meets this standard. However, Mr. Walker is responsible for any obligations this creates under 28 U.S.C. § 1915(b). 4 Because the transcript was not provided in the record on appeal, we defer to the magistrate judge’s review of the transcript and his findings. When a trial transcript is not
-3- and intelligently made guilty pleas to all counts after being fully informed of the
range of punishment for each offense as enhanced by the prior convictions.
Because Mr. Walker was fully informed prior to entering his plea that his prior
convictions could be used to enhance his sentences, the magistrate judge properly
determined his subsequent pleas of guilty constitute a waiver of all
nonjurisdictional defects and defenses occurring prior to the entry of the plea. See
Barker v. United States, 579 F.2d 1219, 1225-26 (10th Cir. 1978). The magistrate
judge concluded this rule of law applies whether the attack is an independent
attack on the prior convictions or on the present enhanced sentences through a
challenge to the prior convictions. We agree. Id. at 1225-26.
The magistrate judge next reviewed Mr. Walker’s claim the trial court erred
in accepting his guilty plea to “assault with intent to commit rape,” without
establishing a factual basis for his plea. The magistrate judge found Mr. Walker
never alleged he had professed his innocence at the time he entered his guilty
plea, nor does the record contain any indication of innocence. Absent a protest of
designated as part of the record on appeal, an appellate court cannot review the district court’s factual findings and must accept them as correct. See generally United States v. Vasquez, 985 F.2d 491 (10th Cir. 1993). Because the magistrate judge summarized pertinent portions of the testimony in his report and that testimony supports his findings, we accept his findings as true.
-4- innocence at the time a plea is entered, the magistrate judge properly concluded
the trial court has no constitutional duty to establish a factual basis for his plea.
See Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001
(1971).
Lastly, the magistrate judge did not rule on Mr. Walker’s claim the trial
court improperly considered pardon and parole policies in assessing his sentence,
thereby constituting prejudicial error as a matter of state law. Rather, the
magistrate judge determined the state’s failure to follow its own law on
sentencing procedures is insufficient to warrant federal habeas corpus relief. See
Matthews v. Price, 83 F.3d 328, 331 (10th Cir. 1996). We afford wide discretion
to a state trial court’s sentencing decision, and challenges to that decision are not
generally constitutionally cognizable, unless it is shown the sentence imposed is
outside the statutory limits or unauthorized by law. See Haynes v. Butler, 825
F.2d 921, 923-24 (5th Cir. 1987), cert. denied, 484 U.S. 1014 (1988); Handley v.
Page, 398 F.2d 351, 352 (10th Cir. 1968). The magistrate judge, after reviewing
the record and Okla. Stat. tit. 21, § 51, determined Mr. Walker’s sentences were
within statutory limits and therefore, he is not entitled to federal habeas relief.
The magistrate judge’s determination that Mr. Walker’s claims are
-5- unsupported by the record is not erroneous and is supported by the pleadings and
record. The district court adopted the magistrate judge’s findings and
recommendations in denying Mr. Walker’s habeas petition and his request for a
certificate of appealability, stating he failed to make a “substantial showing of the
denial of a constitutional right.”
A review of the record and the magistrate judge’s findings and
recommendations supports the district court’s ruling that Mr. Walker failed to
substantially demonstrate he has been denied a constitutional right. Accordingly,
we conclude the claims raised in Mr. Walker’s federal habeas appeal do not meet
the standard on which a certificate of appealability may be granted.
We attach hereto a copy of the magistrate judge’s Report and
Recommendations dated July 23, 1997.
We deny the certificate of appealability and DISMISS this appeal.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-6- Attachment not available electronically.