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    Hughes v. Beck, 10th Cir. (2006)

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    1. Jason Hughes pled guilty to eight felonies and five misdemeanors in Oklahoma state court and was sentenced to eight years in prison. He filed for state post-conviction relief and federal habeas corpus, raising eight grounds for relief. 2. The federal district court denied habeas relief, finding that one claim and claims three through eight were procedurally barred under Oklahoma law. It reached the merits of the ineffective assistance claim and found it failed. 3. On appeal, the circuit court withdrew its prior grant of a certificate of appealability, finding the conflict of interest claim was not properly raised. It agreed the other claims were procedurally barred and dismissed the appeal. It also vacated the

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    Hughes v. Beck, 10th Cir. (2006)

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    1. Jason Hughes pled guilty to eight felonies and five misdemeanors in Oklahoma state court and was sentenced to eight years in prison. He filed for state post-conviction relief and federal habeas corpus, raising eight grounds for relief. 2. The federal district court denied habeas relief, finding that one claim and claims three through eight were procedurally barred under Oklahoma law. It reached the merits of the ineffective assistance claim and found it failed. 3. On appeal, the circuit court withdrew its prior grant of a certificate of appealability, finding the conflict of interest claim was not properly raised. It agreed the other claims were procedurally barred and dismissed the appeal. It also vacated the

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    Filed: 2006-01-09 Precedential Status: Non-Precedential Docket: 05-6183

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    1. Jason Hughes pled guilty to eight felonies and five misdemeanors in Oklahoma state court and was sentenced to eight years in prison. He filed for state post-conviction relief and federal habeas corpus, raising eight grounds for relief. 2. The federal district court denied habeas relief, finding that one claim and claims three through eight were procedurally barred under Oklahoma law. It reached the merits of the ineffective assistance claim and found it failed. 3. On appeal, the circuit court withdrew its prior grant of a certificate of appealability, finding the conflict of interest claim was not properly raised. It agreed the other claims were procedurally barred and dismissed the appeal. It also vacated the

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    19 views5 pages

    Hughes v. Beck, 10th Cir. (2006)

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    1. Jason Hughes pled guilty to eight felonies and five misdemeanors in Oklahoma state court and was sentenced to eight years in prison. He filed for state post-conviction relief and federal habeas corpus, raising eight grounds for relief. 2. The federal district court denied habeas relief, finding that one claim and claims three through eight were procedurally barred under Oklahoma law. It reached the merits of the ineffective assistance claim and found it failed. 3. On appeal, the circuit court withdrew its prior grant of a certificate of appealability, finding the conflict of interest claim was not properly raised. It agreed the other claims were procedurally barred and dismissed the appeal. It also vacated the

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    January 9, 2006
    Elisabeth A. Shumaker

    Clerk of Court

    JASON HUGHES,
    Petitioner-Appellant,
    v.

    Nos. 05-6183 and 05-6215


    (W.D. of Okla.)

    STEVEN BECK, Warden,

    (D.C. No. CV-04-1667-M)

    Respondent-Appellee.
    ORDER AND JUDGMENT *
    Before KELLY, OBRIEN, and TYMKOVICH, Circuit Judges. **
    In October 2003, Petitioner-Appellant Jason Hughes entered five guilty
    pleas in Oklahoma state court arising from a series of crimes. Following the
    pleas, the state court sentenced Hughes to eight years imprisonment based on a
    total of eight felonies and five misdemeanors, all to be served concurrently.

    This order 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; nevertheless, an order may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    *

    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(G). The cause is therefore ordered submitted without oral argument.
    **

    Failing to file a direct appeal, Hughes filed for state post-conviction relief.
    The Oklahoma district court denied relief. This denial was subsequently affirmed
    by the Oklahoma Court of Criminal Appeals. Both Oklahoma courts deemed
    Hughess claims waived, finding that all of his claims should have been brought
    on direct appeal.
    Hughes then sought a writ of habeas corpus in federal court pursuant to 28
    U.S.C. 2254, asserting eight grounds for relief, including the following:
    (1) Oklahoma state post-conviction procedures are inadequate and ineffective to
    protect Hughess federal constitutional rights; (2) ineffective assistance of trial
    counsel; (3) lack of jurisdiction by the state trial court based on Hughess
    unlawful transfer between counties without a court order; (4) trial error in
    accepting Hughess guilty pleas without informing Hughes that he would be
    sentenced in excess of the minimum; (5) denial of due process; (6) Oklahoma
    statutory language excludes Hughess crimes from punishment by incarceration;
    (7) statutory language requiring parole consideration to be included in Hughess
    sentence and failure by the state parole board to comply with this legislative
    mandate; and (8) trial error in separating one continuous act into different counts
    for purposes of sentencing.
    The federal district court denied the writ, finding that claim one and claims
    three through eight were procedurally barred. With regards to the second claim,
    -2-

    ineffective assistance of counsel, the district court reached the merits and
    determined that because Hughes rendered his plea voluntarily, his claim failed.
    1.
    In December 2005, this court construed Hughess pro se pleadings, in
    particular his ineffective assistance of counsel claim, possibly to include an
    allegation of conflict of interest. This court granted a certificate of appealability
    (COA) with respect to the conflict of interest claim, directing the government to
    file a response. See 28 U.S.C. 2253(c)(1).
    Since the grant of COA, this court has determined that Hughes failed to
    properly raise the conflict of interest claim in the district court. Although we
    must liberally construe a petitioners pro se pleadings, we may not rewrite a
    petition to include claims that were never presented. Barnett v. Hargett, 174
    F.3d 1128, 1133 (10th Cir. 1999). Specifically, Hughess ineffective assistance
    of counsel argument before the district court plainly does not include a claim that
    his counsel had a conflict of interest. Accordingly, that claim has been waived
    and COA should not have been granted.
    2.
    We have also carefully reviewed the record with regard to claim one and
    claims three through eight and agree with the reasoning set forth by the magistrate
    judge precluding such claims as procedurally barred by Oklahoma state law. See
    -3-

    Okla. Stat. tit. 22, 1086 (All grounds for relief available to an applicant under
    this act must be raised in his original, supplemental or amended application. Any
    ground . . . not so raised . . . may not be the basis for a subsequent application,
    unless the court finds a ground for relief asserted which for sufficient reason was
    not asserted or was inadequately raised in the prior application.). According to
    the district court, Oklahomas procedural bar rule is both adequate and
    independent such that it precludes Hughess claims. The district court further
    reasoned that Hughes could not overcome the procedural bar both because he
    failed to demonstrate that any ineffectiveness on the part of his counsel
    constituted cause for the default and he failed to show any fundamental
    miscarriage of justice. We therefore conclude that Hughes has not made a
    substantial showing of the denial of a constitutional right. 28 U.S.C.
    2253(c)(2); accord Slack v. McDaniel, 529 U.S. 473, 484 (2000) .
    3.
    Finally, the district court, in granting Hughes permission to proceed in
    forma pauperis (ifp), required Hughes to pay the filing fee in accordance with
    28 U.S.C. 1915(b)(1). However, this court has previously concluded that the
    Prison Litigation Reform Act, which amended 28 U.S.C. 1915(b)(1) to impose
    filing fee obligations on a prisoner who brings a civil action or files an appeal
    in forma pauperis, is inapplicable to 28 U.S.C. 2254 habeas corpus
    -4-

    proceedings. McIntosh v. United States Parole Commn, 115 F.3d 809, 811 (10th
    Cir. 1997); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997),
    overruled on other grounds by United States v. Hurst, 322 F.3d 1256 (10th Cir.
    2003). Therefore, the district court should not have ordered Hughes to pay the
    filing fee.
    Finding that Hughes is not entitled to habeas relief under 2254, we
    withdraw the prior grant of COA as improvidently granted. Accordingly, we
    VACATE this courts grant of COA and DISMISS the appeal as to all claims
    raised by Hughes. We sua sponte VACATE the district courts order granting ifp
    to the extent that it required Hughes to pay the filing fee.
    Entered for the Court
    Per curiam

    -5-

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