F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 20 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SONNY LAUREN HARMON,
Petitioner-Appellant,
v. No. 96-6135
STEVE HARGETT, ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER
Before TACHA, EBEL, and BRISCOE, Circuit Judges.
On the court’s own motion, we recall the mandate, withdraw the order and
judgment filed on January 24, 1997, and vacate the judgment. A substitute order
and judgment is filed this date.
Appellant filed a petition for rehearing which challenges portions of the
order and judgment that are unaffected by this revision. The petition for
rehearing is denied.
Entered for the Court
PATRICK FISHER, Clerk
By Ardell Schuler
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 20 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SONNY LAUREN HARMON,
Petitioner-Appellant,
v. No. 96-6135
(D.C. No. CV-95-190-C)
STEVE HARGETT, ATTORNEY (W.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA, EBEL, 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.
This order and judgment is not binding precedent, except under the doctrines of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.
Petitioner-appellant Sonny Lauren Harmon, a state prisoner appearing pro
se and in forma pauperis, appeals from the district court’s denial of his petition
for habeas relief filed under 28 U.S.C. § 2254. We dismiss the appeal.
When petitioner filed his notice of appeal on April 5, 1996, the prerequisite
to an appeal from the denial of a § 2254 petition was a certificate of probable
cause. The district court denied petitioner’s motion for a certificate of probable
cause, and petitioner filed a motion for a certificate of probable cause in this
court which has not been decided. With the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(Apr. 24, 1996), the certificate of probable cause is replaced by the certificate of
appealability, which may issue “only if the applicant has made a substantial
showing of the denial of constitutional right,” see 28 U.S.C. § 2253(c)(2).
Because the standards for obtaining a certificate of appealability are the same as
the previous standards for obtaining a certificate of probable cause, we apply the
amended statute to pending cases such as this one. See Lennox v. Evans, 87 F.3d
431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997). We conclude that
petitioner has not made the required showing.
In March 1993, petitioner pled guilty in Cleveland County, Oklahoma, to a
charge of escape from a penal institution. See R. Doc. 2, ex. 2 at 1. Petitioner
was sentenced to three years’ imprisonment, “to run consecutive to any term
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defendant is currently serving and . . . also to run concurrent with Grady County
Case # CF-92-160.” Id. at 2. At the time of sentencing, petitioner was serving a
sentence out of Garvin County and, unbeknownst to the Cleveland County district
court or prosecutor, had also already been sentenced on the Grady County charge.
Because the Grady County sentence had been ordered to run concurrent with the
Garvin County sentence, the sentence on the Cleveland County charge could not
be served as pronounced. Therefore, three months after entering the sentence, the
Cleveland County court amended its sentence to run consecutively to both the
Garvin and Grady County sentences.
Petitioner filed this petition for relief, which was denied. On appeal,
petitioner contends that: (1) the sentencing court lacked jurisdiction to amend the
sentence; (2) the trial court failed to properly advise him of his right to appeal the
amendment and, as a result, he was denied an appeal through no fault of his own;
and (3) he was denied effective assistance of counsel at the sentencing hearing.
Petitioner’s claims of error are without merit. First, the state trial court’s
exercise of jurisdiction to amend petitioner’s sentence raises a question of state
law that we will not overturn unless it conflicts “with fundamental principles of
liberty and justice.” Ewing v. Winans, 749 F.2d 607, 609 (10th Cir. 1984),
limited by Martinez v. Sullivan, 881 F.2d 921, 926 n.2 (10th Cir. 1989)
(modifying Ewing on a point not relevant here). In this case, it clearly does not.
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The record confirms that the parties intended that petitioner’s Cleveland County
sentence would run consecutive to any other sentence he was then serving, which
actually included his Grady County sentence as well as his Garvin County
sentence. The Oklahoma Court of Criminal Appeals determined that the
Cleveland County court acted properly in amending its sentence. R. Doc. 2,
ex. 12. We also have previously held “that courts have the power and the duty to
correct judgments containing clerical errors or judgments issued due to
inadvertence or mistake.” Security Mut. Cas. Co. v. Century Cas. Co., 621 F.2d
1062, 1065 (10th Cir. 1980). Therefore, we find no error of constitutional
dimension here.
Petitioner’s second claim of error fails as well. The federal constitution
does not require state courts to inform criminal defendants who plead guilty of
their right to appeal. See Laycock v. New Mexico, 880 F.2d 1184, 1187-88 (10th
Cir. 1989) (citing Crow v. United States, 397 F.2d 284, 285 (10th Cir. 1968).
Further, a defense attorney’s obligation to advise a defendant who has pled guilty
of his appeal rights is limited to cases where: (1) a claim of constitutional error
which could result in setting aside the plea is made; or (2) the defendant inquires
about his appeal rights. See id. Neither situation exists in this case.
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Because petitioner’s claim of ineffective assistance of counsel is based on
his first two claims of error and we have determined them to be without merit, his
ineffective assistance claim fails as well.
Finally, petitioner asks us to order transcripts of the sentencing hearings.
We see no reason to do so, as petitioner does not give any indication at all what
they will show to effectively counter the state trial court exhibits that have
already been provided.
Because petitioner has failed to make the required showing, he is not
entitled to a certificate of appealability. Petitioner’s application for a certificate
of appealability is DENIED, and his appeal is DISMISSED. The mandate shall
issue forthwith.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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