FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT September 12, 2013
Elisabeth A. Shumaker
Clerk of Court
SCOTT THORNTON,
Petitioner - Appellant, No. 13-6021
(D.C. No. 5:12-CV-00221-M)
v. (W.D. Oklahoma)
JUSTIN JONES, Director,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, O’BRIEN and GORSUCH, Circuit Judges.
Applicant Scott Thornton, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the denial by the United States District Court
for the Western District of Oklahoma of his application for relief under 28 U.S.C. § 2254.
See 28 U.S.C. § 2253(c)(1) (requiring COA to appeal denial of § 2254 application). We
deny a COA and dismiss the appeal.
I. BACKGROUND
Applicant was charged in Oklahoma state court on eight counts: attempted
robbery with an imitation firearm; kidnapping for the purpose of extortion; assault and
battery with a dangerous weapon; two counts of first-degree burglary; two counts of
kidnapping; and attempted unauthorized use of a credit card. He requested leave to
proceed as his own counsel, invoking his constitutional right to do so under Faretta v.
California, 422 U.S. 806, 835–36 (1975). The court granted the request and appointed an
attorney to serve in a standby capacity.
Under a plea agreement, Applicant pleaded guilty to all eight counts and was
sentenced to concurrent 30-year terms on each count. After unsuccessfully moving to
withdraw his plea, he challenged his convictions on direct appeal to the Oklahoma Court
of Criminal Appeals (OCCA), this time represented by counsel. The OCCA summarily
denied relief. Applicant filed in state court a pro se application for postconviction relief,
which the OCCA also denied.
In February 2012 Applicant filed his pro se § 2254 application. The application
raises seven claims: (1) that Applicant was denied effective assistance of appellate
counsel on direct appeal to the OCCA; (2) that the trial court failed to advise him of the
nature and consequences of pleading guilty; (3) that the trial court failed to make an
adequate determination of voluntariness before accepting his guilty plea; (4) that he was
denied counsel during his guilty-plea proceeding despite the absence of a waiver; (5) that
he was denied counsel during his withdrawal-of-plea proceeding despite the absence of a
waiver; (6) that the state breached the plea agreement by failing to give him credit for
time served; and (7) that he was denied a full and fair opportunity to present his claims in
state court. Applicant requested appointment of counsel and an evidentiary hearing.
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The magistrate judge issued a Report and Recommendation (R&R) recommending
denial of Applicant’s application and his requests for counsel and an evidentiary hearing.
The district court adopted the R&R and denied a COA. Applicant applies to us for a
COA on four issues. He also renews his request for an evidentiary hearing.
II. DISCUSSION
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id. If the application was denied on procedural
grounds, the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but he must also show “that
jurists of reason would find it debatable . . . whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.
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Because Applicant is pro se, we construe his filings liberally. See Sines v. Wilner,
609 F.3d 1070, 1074 (10th Cir. 2010). We understand him to request a COA on four
claims: (1) ineffective assistance of appellate counsel; (2) denial of trial counsel without
a waiver; (3) involuntariness of his guilty plea because the trial court did not properly
advise him of his rights; and (4) involuntariness of the plea because the state breached the
plea agreement. The gist of these claims was presented to the OCCA in Applicant’s state
postconviction proceedings. The OCCA held that all claims except ineffective assistance
were waived because they could have been raised on direct appeal but were not. This
procedural bar rested on an adequate and independent state-law ground, see Smith v.
Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). Therefore, we may not consider the
merits of the barred claims unless Applicant can show cause for his procedural default
and prejudice arising from the alleged violations of federal law. See Clayton v. Gibson,
199 F.3d 1162, 1175 (10th Cir. 1999). The only form of cause argued by Applicant is
ineffective assistance of appellate counsel. We turn to that issue.1
Applicant focuses only on his appellate counsel’s omission of certain state- and
federal-law issues on direct appeal; he does not press his earlier argument that counsel
1
Applicant argued in district court that he could not have asserted the breach of the plea
agreement on direct appeal, as he did not discover the alleged breach until after his direct-
appeal brief had already been filed. But he has not argued that point in this court,
perhaps because the alleged breach “could have been discovered with due diligence”
before the state-court brief was filed. Slaughter v. State, 969 P.2d 990, 993 (Okla. Crim.
App. 1998). Indeed, Applicant argued below that “appellate counsel’s failure to review
[Applicant’s] case file” resulted in a failure to raise the issue that he was “the victim of a
failed plea agreement.” R., Vol. 1 pt. 1 at 12.
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should have done more to attack the factual basis of his guilty plea. We do not defer to
the OCCA’s adjudication of the claim because it applied the incorrect standard for
reviewing a claim of ineffective appellate counsel. See McGee v. Higgins, 568 F.3d 832,
838–39 (10th Cir. 2009). We can easily dispose of the claim, however, because if an
issue lacks merit, appellate counsel’s omission of it was not deficient performance. See
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). We divide the omitted issues
into two categories: (A) denial of Applicant’s right to trial counsel and (B) invalidity of
his guilty plea.
A. Right to Counsel
Applicant claims that he did not validly waive the right to counsel at the June 10,
2012, plea proceeding or the June 29 withdrawal-of-plea proceeding. This claim has no
merit under either federal or Oklahoma law.
A defendant may waive his right to counsel and represent himself so long as the
waiver is competent, knowing, and voluntary. See Maynard v. Boone, 468 F.3d 665, 676
(10th Cir. 2006). A waiver is competent if the defendant “has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding and has a
rational as well as factual understanding of the proceedings against him.” Id. (internal
quotation marks omitted). And it is knowing and voluntary if the defendant “actually
does understand the significance and consequences” of his decision and “the decision is
uncoerced.” Id. at 677 (internal quotation marks omitted). Oklahoma’s standards
governing the waiver of the right to counsel substantially mirror the federal standards.
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See Johnson v. State, 556 P.2d 1285, 1296 (Okla. Crim. App. 1976) (“All that is required
for an effective election for self-representation is that the defendants have full knowledge
or adequate warning concerning this right and a clear intent to exercise it.”).
Applying these standards to the record before us, we conclude that a reasonable
jurist would not debate the district court’s determination that Applicant validly waived
his right to counsel. Although Applicant contends that on two occasions in 2009 he
withdrew his waiver of counsel, it is clear that he again validly waived his right to
counsel in January 2010, and he points to no prejudice from not having counsel in the
interim. Applicant further suggests that the court should have obtained a new waiver
before taking his plea on June 10 and before hearing his request to withdraw his plea on
June 29; but once a defendant has made a valid waiver of the right to counsel, the trial
court need not ensure its validity at every later proceeding. See Panagos v. United States,
324 F.2d 764, 765–66 (10th Cir. 1963); Gillespie v. Hunter, 159 F.2d 410, 411 (10th Cir.
1947). Applicant cites no Oklahoma case to the contrary.
Finally, Applicant complains that he did not have the benefit of standby counsel at
the June 29 proceeding. The record, however, indicates otherwise. And even if
Applicant were correct, neither the federal Constitution nor Oklahoma law requires that
standby counsel be made available for a defendant who has validly waived the right to
counsel. See United States v. Chavis, 461 F.3d 1201, 1205–06 (10th Cir. 2006); Bowen v.
State, 606 P.2d 589, 594 (Okla. Crim. App. 1980); Parker v. State, 556 P.2d 1298, 1302
(Okla. Crim. App. 1976).
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Because there is no merit to Applicant’s claims that he was denied the right to trial
counsel, reasonable jurists could not debate whether Applicant’s appellate counsel was
deficient for failing to argue the matter
B. Validity of Guilty Plea
Applicant claims that his appellate counsel should have argued that his guilty plea
was invalid. To satisfy due process, a guilty plea must be both knowing and voluntary.
See Tovar Mendoza v. Hatch, 620 F.3d 1261, 1269 (10th Cir. 2010) (“[T]he longstanding
test for determining the validity of a guilty plea . . . is whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” (internal quotation marks omitted)).
No reasonable jurist would debate the district court’s determination that these
requirements were satisfied. Appellate counsel was undoubtedly not ineffective in failing
to challenge Applicant’s plea on appeal.
Applicant also suggests that his appellate counsel should have argued that his
guilty plea was involuntary because the state later breached its promise of credit for time
served, apparently one of the terms of the plea agreement. But in reply to the state’s
response to his § 2254 application, Applicant conceded that he “did not raise breach of
plea agreement as a ground for ineffective assistance of appellate counsel in state court.”
R., Vol. 1 pt. 1 at 348. This theory of ineffectiveness is therefore treated as procedurally
defaulted. See DeRosa v. Workman, 679 F.3d 1196, 1235 (10th Cir. 2012).
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Applicant has not shown that his appellate counsel omitted any meritorious issues
on direct appeal, so he has not shown that the district court’s rejection of his claim of
ineffective appellate counsel was debatable or wrong. Accordingly, he cannot show that
the district court’s denial of his remaining claims on the ground of procedural default was
debatable or wrong. Finally, because his claims were “capable of resolution on the
record,” the district court did not abuse its discretion in denying an evidentiary hearing.
Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).
III. CONCLUSION
We DENY Applicant’s application for a COA and DISMISS the appeal. We
GRANT Applicant’s motion to proceed in forma pauperis (IFP). Judge O’Brien dissents
from the grant of IFP status.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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