F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 29 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
GUY GRANVILLE WILLIAMS,
Petitioner - Appellant,
No. 99-6165
v.
(D.C. No. CIV-98-614-R)
(Western District of Oklahoma)
H. N. SCOTT,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Pro se petitioner Guy Granville Williams seeks a certificate of
appealability, pursuant to 28 U.S.C. § 2253(c), to challenge the district court’s
dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. §
2254. The district court dismissed Williams’ petition due to a state procedural
bar and Williams’ failure to allege a cognizable constitutional claim against the
state. Williams brought two claims: first, that the court violated his due process
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and equal protection rights by failing to advise him of his right to be represented
by appointed counsel on direct appeal; and second, that the state’s judicial
procedures were inadequate to afford him a full and fair determination on the
merits of his claims because he was not afforded an evidentiary hearing in his
second post-conviction proceeding. We decline to issue a certificate of
appealablity. See 28 U.S.C. § 2253(c)(2).
Following pleas of guilty to murder in the first degree and assault and
battery with a deadly weapon with intent to kill, Williams was sentenced, on
September 30, 1981, to two concurrent terms of life imprisonment. At
sentencing, Williams, represented by counsel, waived Oklahoma’s normal 10-day
period in which to file a direct appeal of his conviction. He did not move to
withdraw his guilty pleas or to file a direct appeal.
Williams first sought to challenge his conviction and sentence in an
application for state post-conviction relief, filed in January 1983. He argued that
his guilty pleas were tainted with unconstitutionality due to the failure of the trial
court and counsel to advise him as to the nature and essential elements of the
crimes to which he had pled guilty; and that failure to advise him of those matters
was tantamount to ineffective assistance of counsel. The state district court
denied Williams’ application on May 4, 1983, finding his claims to be without
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merit, and Williams appealed. The Oklahoma Court of Criminal Appeals affirmed
the denial of his application in an order filed on May 12, 1983.
In a second application for state post-conviction relief, filed in August
1996, Williams claimed that the trial court denied him the right to appeal by
failing to inform him of his right to be represented by appointed counsel on direct
appeal. The district court held that Mr. Williams’ new claim was barred under the
Oklahoma Post-Conviction Procedure Act, 22 Okla. Stat. Ann §§ 1080-87, which
states:
All grounds for relief available to an applicant under this act must be raised
in his original, supplemental or amended application. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently
waived in the proceeding that resulted in the conviction or sentence or in
any other proceeding the applicant has taken to secure relief 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.
22 Okla. Stat. Ann. § 1086. The Oklahoma Court of Criminal Appeals affirmed,
reiterating the district court’s holding that his new claim was procedurally barred
and stating that he had “failed to provide a sufficient reason for this failure to
present his claim within his first post-conviction application.”
In May 1998 Williams filed a petition for a writ of habeas corpus in federal
district court. The district court denied Williams relief on both his claims on the
grounds that they are procedurally barred by his failure to raise them in his first
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petition for post-conviction relief, adding that even if his claims had not been
procedurally barred, the court deny the petition on the merits.
We agree with the district court that Oklahoma’s procedural bar rule is
“independent” and “adequate” and that William’s failed to show “cause and
prejudice” or a “fundamental miscarriage of justice” sufficient to overcome his
procedural default of his right to appeal claim. See Coleman v. Thompson , 501
U.S. 722, 750 (1991).
Williams also claims that the Oklahoma courts denied him evidentiary
hearings on his second post-conviction petition in violation of their procedural
rules. Even if Williams could overcome his procedural default, he is not entitled
to a certificate of appealability because we can find no indication that Oklahoma
violated its own rules of judicial procedure by failing to grant Williams
evidentiary hearings on his post-conviction petitions. Under the Oklahoma Post-
Conviction Procedure Act, 22 Okla. Stat. Ann. § 1084, an Oklahoma court must
conduct an evidentiary hearing on appeal only “[i]f the application cannot be
disposed of on the pleadings and record, or there exists a material issue of fact.”
In the present case, Williams has made no showing either that the application
could not be resolved on the pleadings and record or of a material issue of fact.
Williams fails to present any cognizable federal due process claim.
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A certificate of appealability is DENIED. This matter is DISMISSED.
ENTERED FOR THE COURT,
Carlos F. Lucero
Circuit Judge
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