F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

OCT 27 1998

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

BOBBY JOE HICKMAN,

Petitioner - Appellant,
v.

No. 97-6008

DENISE SPEARS,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. 96-CV-1353)
Submitted on the briefs: *
Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal
Public Defender, Denver, Colorado, for Appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma, and William R. Holmes,
Assistant Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for
Appellee.
Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in 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.
*

TACHA, Circuit Judge.

Petitioner Bobby Joe Hickman, an Oklahoma state prisoner proceeding pro
se and in forma pauperis, appeals from the district courts order denying his
petition for a writ of habeas corpus, filed in accordance with 28 U.S.C. 2254.
We exercise jurisdiction pursuant to 28 U.S.C. 2253. For the reasons set forth
below, we affirm.
On April 12, 1994, in Jefferson County District Court, State of Oklahoma,
petitioner pled guilty to Unlawful Possession of Marijuana-Second and
Subsequent Offense, Okla. Stat. Ann. tit. 63, 2-402(B)(2) (West 1997). At the
time plaintiff entered his guilty plea, he had four prior felony convictions, three
non-drug related. Consequently, petitioner was sentenced under Oklahomas
Habitual Criminal Act, Okla. Stat. Ann. tit. 21, 51, and received the minimum
sentence of twenty years imprisonment. Following his conviction, petitioner
failed to file an application withdrawing his guilty plea within the period required
by Oklahoma law and did not otherwise attempt to perfect a direct appeal.
On February 1, 1996, petitioner filed an application for post-conviction
relief in Oklahoma state court claiming that: 1) he had received ineffective
assistance of counsel and 2) his sentence was illegal because it exceeded statutory
guidelines. The state courts denied petitioners application on procedural default

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grounds because he had failed to properly raise his claims in a motion to

withdraw his guilty plea, or otherwise on direct appeal. On June 27, 1996,
Hickman filed a petition for a writ of habeas corpus in federal district court. The
habeas corpus petition raises the same claims presented to the state courts in
petitioners application for post-conviction relief. In addition, petitioner argues
that it was improper for the state courts to deny petitioner post-conviction relief
based on his procedural default. Pursuant to 28 U.S.C. 636(b)(1)(B), the matter
was referred to a magistrate judge, who recommended denying the petition for a
writ of habeas corpus. The district court adopted the magistrates
recommendation on December 12, 1996. Petitioner filed a notice of appeal on
December 26, 1996. This court granted petitioners application for a certificate
of appealability on October 14, 1997, and this appeal followed.
I.
Before we address the merits of Mr. Hickmans claims, we must first
examine whether we should deny his habeas corpus petition because of procedural
default in state court. On habeas review, this court will not consider issues that
have been defaulted in state court on an independent and adequate state
procedural ground, unless the petitioner can demonstrate cause and prejudice or a
fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722,
749-50 (1991). A state procedural ground is independent if it relies on state law,

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rather than federal law, as the basis for the decision. English v. Cody, 146 F.3d
1257, 1259 (10th Cir. 1998). For the state ground to be adequate, it must be
strictly or regularly followed and applied evenhandedly to all similar
claims. Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998) (quoting
Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)). In reviewing a denial of a petition
for habeas corpus, we review the district courts conclusions of law de novo and
accept its findings of fact unless they are clearly erroneous. See Wildermuth v.
Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998).
A.
Under Oklahoma law, a defendant whose conviction is based upon a guilty
plea must pursue an appeal to the Court of Criminal Appeals by petition for a writ
of certiorari. See Okla. Stat. Ann. tit. 22, 1051. To commence obtaining a writ
of certiorari to appeal a guilty plea conviction, the petitioner must file an
application to withdraw the plea within ten days of the judgment and sentence.
See Okla. R. Crim. App. 4.2(A). In any event, he must file the petition for a writ
of certiorari within 90 days of conviction. See Okla. Stat. tit. 22, 1051. Failure
to follow these procedural requirements prevents any further post-conviction
relief unless petitioner shows a sufficient reason for the default. See Worthen v.
Meachum, 842 F.2d 1179, 1181 (10th Cir. 1988), overruled on other grounds,
Coleman v. Thompson, 501 U.S. 722 (1991); Webb v. State, 661 P.2d 904, 905

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(Okla. Crim. App. 1983). Based upon our review of relevant case law, we
conclude that the Court of Criminal Appeals of Oklahomas decision denying
post-conviction relief as to petitioners illegal sentence claim rested on
independent and adequate state procedural grounds. However, as discussed
below, the state procedural default with respect to petitioners ineffective
assistance of counsel claim requires closer review.
This court has vigorously scrutinized the adequacy of state rules involving
procedural default which have the effect of barring federal habeas review of
ineffective assistance of counsel claims. See, e.g., English v. Cody, 146 F.2d
1257, 1259 (10th Cir. 1998), Jackson v. Shanks, 143 F.3d 1313, 1318-19 (10th
Cir. 1998); Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994). We
give special attention to ineffective assistance of counsel claims because of the
unique concerns associated with them. As stated by the Supreme Court in
Kimmelman v. Morrison:
Because collateral review will frequently be the only means
through which an accused can effectuate the right to counsel,
restricting the litigation of some Sixth Amendment claims to trial and
direct review would seriously interfere with an accuseds right to
effective representation. A layman will ordinarily be unable to
recognize counsels errors and evaluate counsels professional
performance; consequently a criminal defendant will rarely know that
he has not been represented competently until after trial or appeal,
usually when he consults another lawyer about his case.
477 U.S. 365, 378 (1986) (internal citation omitted). Noting these concerns, this

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court held in Brecheen v. Reynolds that the failure to raise an ineffective

assistance of counsel claim on direct appeal does not preclude federal habeas
review of the claim, even if such failure is characterized as a procedural default
under state law. See 41 F.3d at 1363-64. This court based its conclusion on the
interplay of two factors: (1) the general need for additional fact-finding for the
proper resolution of a claim of ineffective assistance; and (2) the need to allow a
petitioner to consult with different counsel on appeal in order to obtain an
objective assessment of trial counsels performance. English, 146 F.3d at 1260.
We find that the short time frame in which petitioner had to perfect a certiorari
appeal under Oklahoma law did not give him sufficient opportunity to discover
and develop his ineffective assistance of counsel claim. Therefore, we find these
procedural rules to be inadequate grounds for denying review of petitioners
ineffective assistance of counsel claim. Accordingly, we address the merits of
this claim despite petitioners state procedural default.
B.
Having found Oklahomas procedural rules governing certiorari appeals to
be independent and adequate state grounds for denying review of petitioners
illegal sentence claim, we will not address the merits of this claim unless the
petitioner shows cause for the default and prejudice resulting therefrom, or that
failure to review his claim will result in a fundamental miscarriage of justice.

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The determination of cause and prejudice and of fundamental miscarriage of

justice are both matters of federal law. Demarest v. Price, 130 F.3d 922, 941
(10th Cir. 1997). Petitioner contends that his state law procedural default was the
result of his trial counsels failure to discover the trial courts alleged sentencing
error and subsequent failure to advise petitioner to pursue a direct appeal.
Attorney error amounting to constitutionally ineffective assistance of
counsel constitutes cause for a procedural default. See Coleman v. Thompson,
501 U.S. 722, 754 (1991). An individuals Sixth Amendment right to effective
counsel is limited to the first appeal as of right. See Evitts v. Lucey, 469 U.S.
387, 396 (1985). Although a guilty plea appeal is technically referred to in
Oklahoma as a certiorari appeal, Oklahoma [courts have] always treated this
appeal as an appeal of right. Randall v. State, 861 P.2d 314, 316 (Okla. Crim.
App. 1993). Thus, Mr. Hickman was entitled to effective counsel during the time
period available for appeal of his conviction. Because the same legal standards
govern petitioners underlying claim of ineffective assistance of counsel and his
closely related burden to show cause for his state law procedural default, we must
determine whether petitioner has shown cause concurrently with the merits of his
ineffective assistance of counsel claim.
II.
Petitioner asserts that his Sixth Amendment right to effective assistance of

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counsel was violated when his trial counsel failed to object to the imposition of
an enhanced sentence under Oklahomas Habitual Criminal Act. We disagree.
A claim of ineffective assistance of counsel presents a mixed question of law
and fact which we review de novo. Brewer v. Reynolds, 51 F.3d 1519, 1523
(10th Cir. 1995). To prevail on this claim, petitioner must show: 1) that his
counsels performance fell below an objective standard of reasonableness and 2)
that the deficient performance was prejudicial to his defense. See Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). To satisfy the first prong of this test,
petitioner must overcome the strong presumption that counsels conduct falls
within the wide range of reasonable professional assistance. Id. at 689; see also
Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir. 1998). We review petitioners
ineffective assistance of counsel claim from the perspective of his counsel at the
time he rendered his legal services, not in hindsight. See Strickland, 466 U.S. at
689. In addition, in considering counsels performance, we focus on not what is
prudent or appropriate, but only what is constitutionally compelled. United
States v. Chronic, 466 U.S. 648, 665 n.38 (1984). To satisfy the second prong,
petitioner must show that there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694.
Petitioner argues that his counsels failure to object to his enhanced

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sentence under Oklahomas Habitual Criminal Act amounted to constitutionally

deficient performance because the sentence he received exceeded that allowed by
Oklahoma law. In particular, petitioner asserts that his counsel should have
discovered that his second drug conviction could not trigger an enhanced penalty
under the Habitual Criminal Act because this offense, second marijuana
possession, is already subject to a specific sentence enhancement provision under
Oklahomas Uniform Controlled Dangerous Substance Act, Okla. Stat. tit. 63,
2-402. Petitioner further argues that 2-402 would have limited his sentence to
ten years, thereby making the trial courts imposition of a twenty year sentence
appealable error. We disagree. There is no clear Oklahoma authority supporting
petitioners argument, and we find that a reasonable and competent counsel might
conclude that, based on the lack of legal authority and the plain language of the
Habitual Criminal Act, petitioners sentence was proper.
Oklahomas Habitual Criminal Act states: Every person who, having been
twice convicted of felony offenses, commits a third, or thereafter, felony offenses
within ten (10) years of the date following the completion of the execution of the
sentence, shall be punished by imprisonment . . . for a term of not less than
twenty (20) years. Okla. Stat. Ann. tit. 21, 51(B). The plain language of this

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statute makes it applicable to all felonies, whether or not they are drug-related. 1
The question at issue is whether Oklahoma law otherwise prevents the
application of the Habitual Criminal Act to petitioners drug offense. Oklahoma
has a general statutory provision prohibiting multiple punishment which states:
If there be in any other chapter of the laws of this state a
provision making any specific act or omission criminal
and providing the punishment therefor, and there be in
this penal code any provision making the same act or
omission a criminal offense or prescribing the
punishment thereof, that offense and the punishment
thereof, shall be governed by the special provisions
made in relation thereto, and not by the provisions of
this penal code. But an act or omission which is made
punishable in different ways by different provisions of
this code may be punished under either of such
provisions, except that in cases specified in Sections 51
and 54 of this title, the punishments therein prescribed
are substituted for those prescribed for a first offense,
but in no case can it be punished under more than one;
and an acquittal or conviction and sentence under either
one, bars the prosecution for the same act or omission
under any other.
Okla. Stat. tit. 21, 11(A). Petitioner argues that this language prevents his
marijuana possession offense from being enhanced under both the controlled
substance statute and the Habitual Criminal Act. Oklahoma law provides no clear

By way of comparison, the sentence enhancement provision of the

Oklahoma Uniform Controlled Dangerous Substances Act makes an initial
marijuana offense a misdemeanor and second or subsequent offenses for
marijuana a felony punishable by two to ten years. See Okla. Stat. Ann. tit. 63,
2-402(B)(2).
1

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support for this conclusion. In fact, it likely supports the opposite. The Court of
Criminal Appeals of Oklahoma has already examined the interplay of the three
relevant statutes in this case: 1) Okla. Stat. tit. 21, 11(A); 2) the Habitual
Criminal Act; and 3) 2-204 of the Uniform Controlled Dangerous Substances
Act. It held that when a person has been previously convicted of both drug and
non-drug felonies, a court may use either the Habitual Criminal Act or the
Uniform Controlled Dangerous Substances Act to enhance the sentence for a new
felony drug offense. See Cooper v. State, 806 P.2d 1136, 1139 (Okla. Crim. App.
1991); Jones v. State, 789 P.2d 245, 247 (Okla. Crim. App. 1990).
As noted above, the plain language of the Habitual Criminal Act makes it
applicable to all felonies. Because the Habitual Criminal Act does not define the
term felony, the determination of what is or is not a felony must necessarily be
made by reference to another provision of law. Oklahoma courts have concluded
that an offenses categorization under provisions of law outside the states penal
code may be used when making the determination as to what constitutes a felony
under the Habitual Criminal Act. As recently stated by the Court of Criminal
Appeals of Oklahoma, [t]he power to define crime and punishment . . . lies with
the legislature . . . . When deciding whether an act has been classified as a felony
crime, the Court looks to the specific legislative definition not the ordinary
definition of a felony or the punishment imposed. Walker v. State, 953 P.2d

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354, 356 (Okla. Crim. App. 1998). For example, in Chapple v. State, the Court of
Criminal Appeals of Oklahoma held that the plain language of the Habitual
Criminal Act permitted any felony to be used as a predicate offense. 866 P.2d
1213, 1217 (Okla. Crim. App. 1993). The court then held that under Okla. Stat.
tit. 47, 11-902, a provision outside of the states penal code, a second DUI
committed within ten years of the first DUI conviction is deemed, under
Oklahoma law, to be a felony offense. Id. Consequently, the court found the
felony DUI conviction was not immune from use under the Habitual Criminal
Act. Id.
Like the second DUI offense in Chapple, petitioners second drug offense
is a felony under Oklahoma law. See Okla. Stat. tit. 63, 2-402(B)(2) (A second
or subsequent violation of this section with respect to . . . marijuana . . . is a
felony punishable by imprisonment for not less than two (2) nor more than ten
(10) years.) (emphasis added). Additionally, we could find no Oklahoma
authority prohibiting the application of the Habitual Criminal Act to drug-related
felonies when the drug offense would have been a misdemeanor had it been a first
offense. Based on the plain language of the Habitual Criminal Act and the lack of
any clear authority prohibiting its use to enhance petitioners drug offense, we
find that a reasonable and competent counsel could have concluded that
petitioners second drug offense would constitute a felony for the purposes of

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the Habitual Criminal Act and that his client, with four prior felony convictions
(three non-drug related), would be subject to sentence enhancement under the
Act. Therefore, we conclude that counsels failure to object to the enhancement
of petitioners sentence under Oklahomas Habitual Criminal Act did not amount
to constitutionally deficient performance. Cf. Jackson v. Shanks, 143 F.3d 1313,
1321 (10th Cir. 1998) (Absent counsels omission of an obvious winner on
appeal, we are not inclined to second-guess appellate counsels decision to
eliminate arguable but weak claims.). Consequently, having failed to satisfy the
first prong of the Strickland test, petitioners ineffective assistance claim is
without merit.
Based on these same considerations, we also find that petitioner has failed
to show cause for his procedural default in state court as to his illegal sentence
claim. A reasonable and competent counsel could, as discussed above, conclude
that there was no error in Mr. Hickmans sentence and therefore no basis for a
plea withdrawal or an appeal. In addition, Mr. Hickman cannot show that denying
review of his claim based on his state law procedural default will result in a
miscarriage of justice, for to meet this standard, the petitioner must supplement
his habeas claim with a colorable showing of factual innocence. Demarest v.
Price, 130 F.3d 922, 941 (10th Cir. 1997). Petitioner has presented no evidence
of his innocence. Therefore, Mr. Hickman has not made a sufficient showing

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under Coleman to excuse his state law procedural default with respect to his
illegal sentence claim, and, accordingly, we shall not address its merits.
III.
For the above reasons, the order of the district court denying Mr.
Hickmans petition for a writ of habeas corpus is AFFIRMED.

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