F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 23 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
GREGORY LESLIE GIBSON,
Petitioner-Appellant,
v. No. 99-6304
(W.D. Okla.)
TWYLA SNYDER, (D.Ct. No. 97-CV-1343)
Respondent-Appellee.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Gregory Leslie Gibson, a state inmate appearing pro se, appeals
*
This order and judgment is not binding precedent except under the doctrines of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.
the district court’s decision dismissing his habeas corpus petition filed pursuant to
28 U.S.C. §2254 and denying his request for a certificate of appealability. 1 We
grant Mr. Gibson’s request for a certificate of appealability and his motion to
proceed in forma pauperis, affirm the district court’s decision in part, and reverse
and remand the district court’s decision in part for reconsideration. 2
Mr. Gibson pled nolo contendere to a charge of trafficking in illegal
narcotics after former conviction of two or more prior felonies, and received a
sentence of fifty years. Mr. Gibson entered his nolo contendere plea as part of a
plea agreement in order to avoid a mandatory sentence of life without parole. Mr.
Gibson later moved to withdraw his plea, claiming he entered it involuntarily due
to ineffective assistance of his counsel based on his counsel’s failure to raise vital
challenges to the plea. He also summarily alleged other acts of deficient counsel
1
Initially, we found Mr. Gibson’s notice of appeal untimely filed. However, in
his Petition to reopen his case, filed with the district court, Mr. Gibson provided a copy of
an outgoing prison mail log showing a timely mailing to the clerk of court under the
prisoner “mailbox” rule. Giving Mr. Gibson the benefit of the doubt, and finding his
follow-up mailings created an inference he filed a timely notice of appeal, the district
court vacated and re-entered its January 28, 1998 order as of July 27, 1999. Thereafter,
Mr. Gibson filed a timely notice of appeal.
2
In light of our decision to remand the district court’s decision in part for
reconsideration, we grant Mr. Gibson’s motion to amend his application for a certificate
of appealability and supporting brief.
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performance including failure to: (1) seek extraordinary relief by not requesting
an evidentiary hearing; (2) call witnesses; (3) return his calls and correspondence;
(4) prosecute his defense; (5) withdraw as counsel; (6) challenge his prior
convictions; and (7) properly advise him in this and another case. Following a
hearing on the matter, the state court denied his motion to withdraw his plea and
the Oklahoma Court of Criminal Appeals affirmed the state court’s decision.
Mr. Gibson then filed his federal habeas petition raising an involuntary plea
claim. Specifically, he claimed the trial court did not: (1) advise him of the
presumption of innocence, his constitutional right against self-incrimination or
the state’s burden to prove his guilt beyond a reasonable doubt; or (2) inquire as
to whether his plea was coerced. He also claimed neither counsel nor the trial
court advised him of the nature or elements of the charges against him including
the state’s burden of proving he “knowingly” possessed the cocaine in his pocket.
He also asserted his attorney provided ineffective assistance of counsel by
coercing him to plead nolo contendere and by failing to: (1) investigate the fact
the indictment did not state “knowingly” as an element of the crime; (2) file a
motion to suppress; (3) file a timely appeal; (4) allow the court to accept his plea
knowing he was not advised of all his rights; (5) seek extraordinary relief; (6)
withdraw as counsel; and (7) investigate the circumstances of his arrest.
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The magistrate judge issued a Report and Recommendation, recommending
dismissal of the petition on the issue of the voluntariness of his plea. 3 The
magistrate judge determined Mr. Gibson “was fully informed of the charge
against him, his rights with respect to that charge, and the consequences of
entering a plea,” and that he consciously chose to enter his plea. The magistrate
judge addressed many of the issues concerning the voluntariness of Mr. Gibson’s
plea (id. at 7-11) and acknowledged he raised an issue on the element of
“knowing” possession. However, the magistrate judge did not specifically
address the “knowing” possession issue or determine whether Mr. Gibson
exhausted his state habeas remedies on that or the other issues of ineffective
assistance of counsel prior to seeking federal relief. The district court
nevertheless adopted the magistrate judge’s Report and Recommendation and
denied Mr. Gibson’s petition.
On appeal, Mr. Gibson again claims his plea was involuntary, unknowing,
3
In the recommendation, the magistrate judge found Mr. Gibson’s habeas petition
timely filed under either the one-year limitation period or under the tolling period of the
one-year limitation period as extended by the ninety-day period for filing petitions for
certiorari with the United States Supreme Court. While we agree Mr. Gibson’s petition
was timely filed under the one-year limitation period, we have determined the ninety-day
filing time does not extend to petitions filed under 28 U.S.C. § 2254. See Rhine v. Boone,
182 F.3d 1153, 1155-56 (10th Cir. 1999), cert. denied 120 S. Ct. 808 (2000).
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and unintelligent based on his counsel’s failure to explain the elements or nature
of the drug charge. In support, he suggests his plea was not knowing and
intelligent because he was not advised the state had to prove he “knowingly” and
“intentionally” possessed the drugs. He also raises numerous other issues--some
for the first time on appeal and others which he may have raised either before the
state courts or the federal district court.
In reviewing the district court’s denial of Mr. Gibson’s § 2254 petition, we
review the court’s factual findings under a clearly erroneous standard and its legal
conclusions de novo. Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999),
cert. denied, 120 S. Ct. 244 (2000). Keeping this standard in mind, we have
reviewed the entire record and generally agree with the magistrate judge’s
analysis of the issues addressed concerning the voluntariness of Mr. Gibson’s
plea. The plea hearing and plea documents show Mr. Gibson was informed of,
and clearly understood, he was charged with the crime of trafficking in illegal
narcotics after former conviction of two or more prior felonies, the sentence he
faced, and many of his other requisite rights prior to pleading nolo contendere.
We also hold it is clear no one coerced Mr. Gibson into his plea.
However, in light of the magistrate judge’s and district court’s failure to
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address the specific issue raised by Mr. Gibson concerning the element of
“knowing” possession or to ascertain whether he properly exhausted that or the
other remaining unaddressed ineffective assistance of counsel issues, we feel
compelled to remand for a determination on those issues.
For these reasons, we grant Mr. Gibson’s request for a certificate of
appealability and his motion to proceed in forma paurperis, AFFIRM the district
court’s decision in part, and VACATE the district court’s decision and
REMAND in part for reconsideration consistent with this Order and Judgment.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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