F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 22 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
ALFONSO THOMAS, JR.,
Petitioner-Appellant,
vs. No. 97-6089
(D.C. No. CIV-96-964-R)
STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **
Petitioner-appellant, Alfonso Thomas, Jr., appeals from the denial of his
habeas petition, 28 U.S.C. 2254, and seeks a certificate of appealability, 28
U.S.C. § 2253(c)(1). He claims ineffective assistance of trial and appellate
counsel regarding plea proceedings and a failure to advise him of the elements of
the underlying offenses.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
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 cause is therefore ordered submitted without oral argument.
Background
At the age of 18, Mr. Thomas entered blind pleas in two cases that were
consolidated for purposes of pleas and sentencing. Mr. Thomas was 17 years old
at the time of the offenses. In CF-89-400, he plead guilty to first degree robbery,
receiving a 15-year sentence. In CF-89-5838, he plead guilty to first degree
robbery, first degree burglary, unauthorized use of a motor vehicle, and kidnaping
for purposes of extortion, receiving 35-, 20-, 5- and 35-year sentences,
respectively. The sentences in CF-89-5838 ran concurrently, but consecutively to
that in CF-89-400, resulting in an effective sentence of 50 years. The day after
sentencing, Mr. Thomas unsuccessfully moved to withdraw his pleas. That denial
was later upheld by the Oklahoma Court of Criminal Appeals, which allowed Mr.
Thomas to file a certiorari petition out of time.
Mr. Thomas then filed his first federal habeas petition which was dismissed
for failure to exhaust state remedies. Thereafter, his state application for post-
conviction relief was denied, the Oklahoma Court of Criminal Appeals holding
that his pleas were knowing and voluntary, and that his claim of inadequate
advice as to the elements of the offenses was barred by res judicata. See I R. doc.
1, attach. (No. PC 95-1428). That court also held that his claims of ineffective
assistance of counsel were waived, not having been raised on direct appeal. See
id. Mr. Thomas filed this second federal habeas petition on June 17, 1996.
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Discussion
The state defended on the sole ground that Mr. Thomas’s second petition
was barred by the one-year limitation period in 28 U.S.C. § 2244(d)(1). Because
the instant petition was filed within one year of the April 24, 1996 enactment of
the Antiterrorism and Effective Death Penalty Act, the state’s theory lacks merit.
See United States v. Simmonds, 111 F.3d 737, 745 (10th Cir. 1997). Moreover,
in light of Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir. 1994), cert.
denied, 515 U.S. 1135 (1995), Mr. Thomas’s claims of ineffective assistance of
counsel are not procedurally barred and may be considered on the merits, despite
a failure to raise them on direct appeal. See Brewer v. Reynolds, 51 F.3d 1519,
1522 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996).
The predicate of all Mr. Thomas’s claims is that he was promised a ten-year
sentence by his attorney if he entered a plea in both cases. Mr. Thomas contends
that his mother dismissed the attorney prior to the plea, yet the attorney insisted
that he could not be dismissed. We have carefully reviewed the state court
transcript and it is completely inconsistent with the version that Mr. Thomas now
claims. Moreover, given that the pleas and sentencings in both cases occurred
simultaneously, it is noteworthy that Mr. Thomas only challenges the longer
sentence in CF-89-5838, and not the sentence in CF-89-400. Both were a product
of the same attorney’s representation. Although our review of whether a state
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court plea is knowing and voluntary is de novo, we defer to the state court’s
findings unless unreasonable “in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2); see Marshall v. Lonberger, 459 U.S. 422,
431-32 (1983). Mr. Thomas has not come forward with sufficient grounds to
undermine the state court’s findings and overcome the strong presumption that his
statements during the plea hearings were truthful. See Blackledge v. Allison, 431
U.S. 63, 74 (1977); Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th Cir.), cert.
denied, 117 S. Ct. 493 (1996). The fact that the trial court did not recite the
elements of each crime does not render the plea involuntary where (a) counsel had
discussed the plea with Mr. Thomas, (b) the plea proceedings contain Mr.
Thomas’s factual recitations by affidavit of the events giving rise to the charges,
and (c) the plea colloquy contains further admissions, thereby indicating that Mr.
Thomas understood the charges and their consequences. See Henderson v.
Morgan, 426 U.S. 637, 646-47 (1976); Bonvillain v. Blackburn, 780 F.2d 1248,
1250 (5th Cir.), cert. denied, 476 U.S. 1143 (1986).
The claim of ineffective assistance of counsel at the trial level must
likewise fail. To prove ineffective assistance of counsel in the context of a guilty
plea, Mr. Thomas must show deficient performance by trial counsel that
prejudiced him--that “there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to
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trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466
U.S. 668, 694 (1984). Our review of the district court’s decision on ineffective
assistance is de novo. See Nickel v. Hannigan, 97 F.3d 403, 408 (10th Cir. 1996),
cert. denied, 117 S. Ct. 1112 (1997).
Mr. Thomas has identified several generic deficiencies with counsel’s
performance including counsel’s alleged (1) conflict of interest because counsel
had been terminated, (2) instructions to Mr. Thomas concerning the plea hearing,
(3) failure to investigate and present evidence, (4) failure to initiate plea bargain
negotiations, (5) failure to prepare for the withdrawal of plea hearing, (6) failure
to adequately confer with Mr. Thomas prior to the hearings, and (7) failure to
challenge the competency of Mr. Thomas. 1 Given the grounds raised in Mr.
Thomas’s petition regarding his ineffectiveness claim, see I R. doc. 1, we resolve
this case on the prejudice prong, Strickland, 466 U.S. at 687, and nothing in the
record suggests that Mr. Thomas would have preferred a trial to the pleas he
1
Grounds not raised below are normally waived. See United States v.
Cook, 997 F.2d 1312, 1316 & n.4 (10th Cir. 1993). In his appellate brief, Mr.
Thomas asserts that inadequate evidence in the record exists to support a finding
of competence. The record establishes that competency was raised at the plea
hearing, but because Mr. Thomas had been previously adjudicated competent in
another proceeding, no hearing was held. See generally United States v.
Williams, 113 F.3d 1155, 1159-60 (10th Cir. 1997); Williamson v. Ward, 110
F.3d 1508, 1514-1521 (10th Cir. 1997); Sena v. New Mexico State Prison, 109
F.3d 652, 654-55 (10th Cir. 1997). We express no opinion on this issue because
it is not properly before us.
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entered. To the contrary, Mr. Thomas faced very serious charges with potential
life sentences. The plea colloquy suggests that he did not want to appear before a
jury having previously been adjudicated competent by a jury. The basis of Mr.
Thomas’s effort to withdraw his plea, the unlikely possibility that a convicted and
incarcerated coparticipant would testify that Mr. Thomas was not the ringleader,
simply pales in contrast to the overwhelming evidence of guilt given his
admissions and the State’s proffer concerning his involvement in the crimes.
Mr. Thomas also argues that appellate counsel was ineffective because he
failed to pursue issues obvious from the record, namely (1) ineffective assistance
of trial counsel, (2) lack of competency to enter a plea, (3) lack of a voluntary and
intelligent plea, and (4) multiplicity of the offenses in CF-89-5838 were
multiplicitous because under Oklahoma law only a single offense was involved.
With respect to appellate counsel, only issue (3) was asserted below, see I R. doc.
1 (“Ground Five”), and thus it is all that we consider. See Radmacher v.
Colorado Ass’n of Soil Conservation Dists. Med. Benefit Plan, 11 F.3d 1567,
1571-72 (10th Cir. 1993); Cook, 997 F.2d at 1316 & n.4. We have rejected the
claim that Mr. Thomas’s plea was not knowing and voluntary given the federal
grounds relied upon in the petition. Thus, Mr. Thomas suffered no prejudice and
the claim must be rejected.
Because Mr. Thomas has not made “a substantial showing of the denial
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of a constitutional right” given the grounds contained in his petition, we DENY a
certificate of appealability and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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Thomas v. Hargett
Combined Opinion