F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 1 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
HARLEY R. ROBERTS,
Petitioner-Appellant,
No. 98-6119
v. (D.C. No. CIV-97-821-R)
(W.D. Okla.)
H. N. SCOTT,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY 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 cause is
therefore ordered submitted without oral argument.
Harley Ray Roberts brought this pro se petition for habeas corpus relief
under 28 U.S.C. § 2254, alleging that he received ineffective assistance of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
counsel with respect to a plea agreement disposing of three state criminal
proceedings, and that his sentence exceeded that provided by the agreement. The
district court denied relief, concluding that the claims were procedurally barred,
and denied Mr. Roberts’ request for a certificate of appealability. Mr. Roberts
appeals and renews his request for a certificate of appealability. We agree with
the district court that Mr. Roberts’ claims are barred. We therefore deny his
motion for a certificate of appealability and dismiss his appeal.
The state court proceeding at issue disposed of three criminal actions
against Mr. Roberts: in case number CRF-86-658 he was charged with robbery
with a firearm after former conviction of two or more felonies; in case number
CRF-87-89 he was charged with twenty-five counts of unauthorized use of a
credit card; and in case number CRF-86-659 he was charged with one count of
assault and battery with a deadly weapon after former conviction of two or more
felonies and one count of carrying a concealed weapon after former conviction of
two or more felonies. Mr. Roberts pled guilty to all the charges and was
sentenced to life imprisonment in CRF-86-658, concurrent sentences of twenty-
five years on the twenty-five counts in CRF-87-89, and two life sentences on the
two counts in CRF-86-659.
Mr. Roberts did not take a direct appeal. In 1992, he filed unsuccessful
petitions for state post-conviction relief challenging his convictions in all three
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cases. Those petitions contained allegations of ineffective counsel which Mr.
Roberts subsequently abandoned. In 1996, Mr. Roberts filed second petitions in
state court seeking post-conviction relief in all three cases, in which he asserted
new ineffective assistance of counsel claims and contended that his sentence
exceeded that provided in the plea agreement. The state district court ruled that
these claims were procedurally barred by Mr. Roberts’ failure to raise them on
direct appeal or in his first state post-conviction proceedings. The state Court of
Criminal Appeals held that Mr. Roberts’ sentence under the count charging him
with carrying a concealed weapon was not legally valid and was therefore not
immune from collateral attack. Accordingly, the appellate court ordered that
sentence vacated and remanded the matter to the district court to impose a proper
sentence. The court affirmed the denial of post-conviction relief in all other
respects, agreeing with the district court that the remaining claims were
procedurally barred.
Mr. Roberts then filed this petition for federal habeas corpus relief under
section 2254, reasserting with respect to all three state cases that his counsel was
ineffective and that his sentence exceeded that provided in the plea agreement.
After ascertaining that Mr. Roberts had in fact filed two requests for state post-
conviction relief in each case, the federal district court held the claims
procedurally barred by Mr. Roberts’ failure to raise them previously.
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With the exception of the sentence on Mr. Roberts’ concealed weapon
conviction, 1 the state appellate court’s denial of state post-conviction relief was
explicitly grounded on procedural default, namely Mr. Roberts’ failure to raise the
issues on direct appeal or in his first post-conviction proceedings. When a federal
habeas petitioner seeks to raise claims that have been defaulted in state court, he
must show both cause for the default and prejudice resulting from the
constitutional violation. See Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995).
Moreover, we have held that ineffective assistance of counsel claims that were
raised for the first time in second state post-conviction proceedings, are barred
unless the petitioner can make the requisite showing. See Moore v. Reynolds, No.
97-6065, 1998 WL 387452, at *6-7 (10th Cir. July 13, 1998). Mr. Roberts has not
shown cause for his failure to raise the defaulted claims in his first state post-
conviction proceedings. He likewise has failed to show that he falls within the
1
Mr. Roberts’ assertion that he pled to and was sentenced under an invalid
concealed weapon charge was not deemed defaulted by the state appellate court.
The court did conclude, however, that any claim of ineffectiveness in this regard
was procedurally barred by Mr. Roberts’ failure to raise it in his first state post-
conviction challenge to this conviction. Although we may thus consider the
invalid sentence claim on the merits, Mr. Roberts received all the relief he is due
on this claim when he was resentenced on the charge from life to ten days in jail.
As the state appellate court observed, Mr. Roberts actually received more than he
bargained for as a result of his resentencing. Likewise, given the two remaining
life sentences to which Mr. Roberts was subject on the other charges covered by
the plea agreement, Mr. Roberts has failed to show that this error had an impact
on his decision to enter into the plea agreement.
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narrow exception created to prevent a fundamental miscarriage of justice. That
inquiry focuses on factual as opposed to legal innocence, and is foreclosed in this
case by Mr. Roberts’ guilty pleas. See Klein, 45 F.3d at 1400. Accordingly, we
conclude that the claims raised in Mr. Roberts’ federal habeas petition are
procedurally barred.
We DENY Mr. Roberts’ request for a certificate of appealability and
DISMISS his appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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