Beavers v. Saffle

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 16 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

GARY ZANE BEAVERS,

Petitioner - Appellant,
vs. No. 99-6154

JAMES L. SAFFLE,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1401-A)

Mac Oyler, Oklahoma City, Oklahoma, for Petitioner - Appellant.

Kellye Bates, Assistant Attorney General (and W.A. Drew Edmondson, Attorney
General, with her on the brief), Oklahoma City, Oklahoma, for Respondent -
Appellee.

Before BALDOCK, KELLY, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant, Gary Zane Beavers appeals from the denial of his 28

U.S.C. § 2254 motion. On March 2, 1992, he pled guilty to first degree murder in

Oklahoma district court. After numerous state proceedings, he filed the present
habeas petition. Mr. Beavers’ habeas petition and request for a certificate of

appealability (COA) were both denied by the district court. We granted a COA on

four issues: (1) whether Mr. Beavers procedurally defaulted certain claims

because of advice given by the Oklahoma Court of Criminal Appeals (OCCA); (2)

the voluntariness of his plea; (3) ineffective assistance of counsel; and (4) the

applicability of Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998).

Background

The facts, according to Mr. Beavers, are as follows. On June 24, 1991,

Mr. Beavers and his wife took their daughter to a local motel to swim. Later in

the evening, Mr. Beavers – already drunk at the time – took his wife to the motel

bar. The victim, Raymond Matthews, was also at the bar and began touching and

making sexual remarks regarding Mrs. Beavers. Later that evening, in a motel

room with no one else present, Mr. Beavers killed Mr. Matthews by hitting him in

the head several times with a baseball bat.

Charges were filed against Mr. Beavers for murder and against his wife as

an accessory to murder. According to Mr. Beavers, he pleaded guilty for two

reasons. First, he indicates that the state used the unsubstantiated charges against

his wife as a tool to coerce him into pleading guilty. Aplt. App. at 90. Mr.

Beavers’ wife urged him to plead so that the charges against her would be

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dropped and she could take care of their young daughter. About a month after the

plea, the time to file an appeal had elapsed and the charges against his wife were

dropped.

Second, Mr. Beavers’ attorney misinformed him that it would take between

ten to twelve years to make parole on a life sentence for murder. In fact, the

average time to make parole in the Oklahoma prison system for a murder life

sentence was twenty-two and a half years. See id. at 94-95 (affidavit of Beavers’

counsel acknowledging that he gave incorrect information about parole). This

was an important factor in agreeing to plead, because Mr. Beavers “wanted to get

the sentence behind me before my young daughter, Nicole, was grown or an

adult.” Id. at 90.

State Procedural Background

Mr. Beavers did not file a direct appeal, allegedly because the charges had

not yet been dismissed against his wife and he feared that she would be

prosecuted if he appealed. Aplt. Br. at 18. On February 5, 1993, almost a year

after judgment, Mr. Beavers filed an “Application for An Evidentiary

Hearing/Application to Withdraw Plea/Alternative/Application to Appeal Out of

Time.” Aplt. App. at 22. This same application was later refiled on March 4,

1993. Id. at 46. Both applications contained numerous claims of error, including

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the involuntary plea and ineffective assistance grounds.

Mr. Beavers also attempted to raise claims by filing a writ of mandamus

with the OCCA. In a February 12, 1993 order, the OCCA denied the writ as an

improper procedure for challenging the conviction. Id. at 84. The OCCA

informed Mr. Beavers that

[t]he proper procedure for Petitioner to follow if he
desires an appeal out of time of his conviction is to file
an application for post-conviction relief in the District
Court of Oklahoma County requesting an appeal out of
time. Petitioner’s right to appeal the merits of the
allegations raised is dependent upon his ability to prove
he was denied an appeal through no fault of his own.

Id. at 85.

Mr. Beavers then filed another writ of mandamus on March 12, 1993 asking

the OCCA to order the district court to rule on his February 5 application. On

March 23, the OCCA denied the writ since Mr. Beavers did not have a “legal

right to a response by the District Court to a post-conviction application thirty-

five days after said application was filed in the District Court.” Id. at 87.

The district court subsequently denied the application for an evidentiary

hearing although no reasons were given and it is unclear exactly which

application the court dealt with. In its April 5, 1993 letter to Mr. Beavers, the

court simply stated: “Pursuant to your request for Application for An Evidentiary

Hearing by letter dated March 8, 1993, as per Judge Jackson, this request has been

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denied.” Aplt. App. at 70. Mr. Beavers, following the advice of the OCCA, then

filed a motion specifically designated as “Petition For An Appeal Out Of Time”

on April 26, 1993. Id. at 74. In this petition, he raised the involuntariness of his

plea but failed to allege the ineffective assistance claim. The district court denied

the petition on April 29, 1993 in a short letter which stated: “Your Petition for

Appeal Out of Time is hereby denied.” Id. at 81. The OCCA affirmed the denial

in an August 25, 1993 order. Id. at 82.

Several years later, Mr. Beavers filed another application for post-

conviction relief, raising six claims including the involuntary plea and ineffective

assistance. On June 20, 1997, the Oklahoma district court denied the petition,

stating that all grounds for relief “must be raised in his original supplemental or

amended application.” Id. at 121. As Mr. Beavers failed to show a sufficient

reason why his new claims were not raised on direct appeal or in the first

application, the court refused to consider the petition. The denial of the petition

was affirmed by the OCCA on August 27, 1997. Id. at 122. Mr. Beavers filed his

habeas petition on the same day. Id. at 1. The federal district court held that Mr.

Beavers was procedurally barred from bringing his claims and this appeal

followed.

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I. Advice of the OCCA

Mr. Beaver’s first claim of being misled by the OCCA is a question of state

procedural law. “[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution,

laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67

(1991). The right to challenge a sentence in a post-conviction application is not

constitutionally based. Therefore, any advice the OCCA gave concerning such a

right is beyond the scope of habeas review. 1

II. Involuntary Plea

Mr. Beavers claims that his plea is involuntary because “the prosecution

coerced him into pleading guilty by threatening to prosecute his wife.” Aplt. Br.

at 18. “Normally, before habeas relief may be granted a Petitioner is required to

exhaust his remedies in state courts.” Barnett v. Hargett, 174 F.3d 1128, 1134

(10th Cir. 1999). Mr. Beavers did not bring a direct appeal of this claim, and is

therefore barred from raising it in federal court unless he can show either (1)

1
We note that Mr. Beavers’ claim would summarily fail on the merits as
well. The advice given by the OCCA was an almost verbatim rendition of
Oklahoma Court of Criminal Appeals Rule 2.1E, which correctly stated the
standard for seeking an appeal out of time.

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cause for the failure to appeal and prejudice resulting therefrom, or (2) that the

denial of habeas would result in a fundamental miscarriage of justice.

See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Mr. Beavers argues that the pending threat of prosecution against his wife

was sufficient cause for failing to bring a direct appeal because the charges

against her were only dropped after his deadline for bringing the appeal had

passed. Interference by officials which makes compliance with a state procedural

rule impracticable can rise to the level of cause for failure to act. See Demarset

v. Price, 130 F.3d 922, 941 (10th Cir. 1997). However, Mr. Beavers’ claim does

not comport with the record. First, there is no evidence that the state was

prosecuting Mrs. Beavers in bad faith. Second, neither the prosecutor nor any

other state official informed Mr. Beavers that his wife would be prosecuted if he

did not plead guilty. Rather, as Mr. Beavers stated in affidavit: “My wife was

constantly urging me to enter a plea of guilty so she could get the charges against

her disposed of . . . .” Aplt. App. at 90. Finally, Mr. Beavers himself previously

denied, both orally and in writing, the very allegation he now raises. The

following colloquy took place between Mr. Beavers and the court during the entry

of plea:

THE COURT: Do you plead guilty of your own
free will and without any coercion or compulsion of any
kind?
THE DEFENDANT: My own free will.

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 THE COURT: And without any coercion or
compulsion of any kind?
THE DEFENDANT: Yes.
THE COURT: Have you been forced, abused,
mistreated, threatened or promised anything by anyone
to have you enter your plea?
THE DEFENDANT: No.

Aplt. App. at 107; see also id. at 97 (giving the exact same answers to the same

questions in written form). Given these facts, Mr. Beavers has failed to prove

cause for his procedural default.

Nor can Mr. Beavers demonstrate that a fundamental miscarriage of justice

would occur if his claim is procedurally barred. To meet this test, a criminal

defendant must make a colorable showing of factual innocence. See Herrera v.

Collins, 506 U.S. 390, 404 (1993). “The exception is intended for those rare

situations ‘where the State has convicted the wrong person of the crime.... [Or

where] it is evident that the law has made a mistake.’” Klein v. Neal, 45 F.3d

1395, 1400 (10th Cir. 1995) (citation omitted). Mr. Beavers does not claim that

he is innocent of killing Raymond Matthews. Rather, he claims that he is not

guilty of first degree murder because he was intoxicated and acted in self defense.

However, these arguments go to legal innocence, as opposed to factual innocence.

See id.; see also Brecheen v. Reynolds, 41 F.3d 1343, 1357 (10th Cir. 1994).

Having failed to show sufficient reason for his failure to seek direct appeal, Mr.

Beavers’ claim of involuntary plea based on alleged threats is procedurally barred

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and we will not hear it for the first time on habeas.

III. Ineffective Assistance

A claim of ineffective assistance of counsel is reviewed de novo. See

Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998). In Brecheen, this

court held that failure to bring an ineffective assistance claim on direct appeal in

Oklahoma state court did not procedurally bar federal habeas review of the claim.

We subsequently narrowed that holding to allow the state to prove the adequacy

of the state procedural bar, i.e. the right to a direct appeal, in vindicating Sixth

Amendment interests. See Hooks v. Ward, 184 F.3d 1206, 1213-18 (10th Cir.

1999); English v. Cody, 146 F.3d 1257, 1261-64 (10th Cir. 1998).

Here, the state endorses the district court’s conclusion that Mr. Beavers’

ineffectiveness claim is procedurally barred because it was not raised in his first

application for post-conviction relief. See Aplee. Br. at 13-14. We held in Moore

v. Reynolds, 153 F.3d 1086, 1096-97 (10th Cir. 1999), that raising the ineffective

assistance claim for the first time in a second application for post-conviction

relief was insufficient to preserve a claim for federal review and constitutes

independent and adequate state procedural bar. See Medlock v. Ward, 200 F.3d

1314, 1323 (10th Cir. 2000). Thus, a defendant not procedurally barred by the

failure to raise an ineffectiveness claim on direct appeal, must ordinarily raise the

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claim in his first application for post-conviction relief.

Mr. Beavers did raise an ineffective assistance claim in his February 5

(refiled March 4) application but failed to do so in his April 26 application. Thus,

the critical question is whether the February/March application was an application

for post-conviction relief. If so, it was the first application and Mr. Beavers’

ineffective assistance claim is not procedurally barred.

State procedural rules that bar habeas review of ineffective assistance

claims are viewed “with a healthy degree of skepticism.” Smallwood v. Gibson,

191 F.3d 1257, 1268 (10th Cir. 1999). Oklahoma Rules specify that a petition for

an appeal out of time is an application for post-conviction relief. See Okla. Crim.

Rules 2.1E(1). Although not determinative, Mr. Beavers specifically

characterized the February/March application as an “Application To Appeal Out

Of Time.” The critical factor in this inquiry, however, is the manner in which the

Oklahoma courts treated the application. In dealing with the 1997 application for

post-conviction relief, the Oklahoma district court specifically noted that Mr.

Beavers’ first application (i.e. the February/March application) was treated “as an

application for post-conviction relief and apparently denied by Judge Jackson . . .

.” Aplt. App. at 118. This treatment is determinative. Thus, Mr. Beavers’

ineffective assistance claim was raised in his first application for post-conviction

relief and is not procedurally barred.

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 The federal district court, however, refused to address the ineffective

assistance claim because Mr. Beavers had not alleged the facts underlying his

claim in the first application. “Although petitioner raised a generic claim of

ineffective assistance of counsel in his first application for post-conviction relief,

he provided no factual basis for the trial court to review the effectiveness of

counsel. . . . [Therefore] petitioner failed to raise his claims of ineffective

assistance of counsel in his first application for post-conviction relief.” Aplt.

App. at 189-90.

This determination fails to take into consideration the context of the

application and how it was handled by the OCCA. Mr. Beavers was seeking an

appeal out of time, which would only be granted upon proof that he was denied an

appeal through no fault of his own. If the motion were granted, Mr. Beavers

would then be required to pursue his direct appeal in the normal course (i.e. by

filing a notice of intent to appeal and then briefing his arguments). See Okla.

Crim. Rules 2.1E(2). If the motion were denied, he could appeal the denial but

must still show that he was without fault. Neither the district court nor the OCCA

would rule on the merits of Mr. Beavers’ ineffective assistance claim based upon

his appeal out of time motion. See Young v. State, 902 P.2d 1089, 1090 n.1

(Okla. Crim. App. 1994); Buchanan v. Page, 451 P.2d 17, 18 (Okla. Crim. App.

1969).

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 Indeed, that is what happened. In denying Mr. Beavers’ “application for

post-conviction relief/request for appeal out of time,” the OCCA affirmed the

district court’s denial solely on the basis that “he has not established that his

failure to appeal was through no fault of his own, the critical issue to appeal out

of time.” Aplt. App. at 82. In view of the OCCA’s advice to Mr. Beavers’ on

how to proceed, and its subsequent denial of Mr. Beavers’ first postconviction

application on the sole and express basis that an appeal out of time was not

warranted, it is not outcome determinative that the factual basis for the claim was

not specified in the first application. We have not hesitated to allow federal court

consideration of an ineffectiveness claim on habeas where a petitioner has been

afforded no opportunity to develop the claim. See Stouffer v. Reynolds, No. 99-

6327, 2000 WL 728826, * 1, 4 n.2 (10th Cir. June 7, 2000) (rejecting State’s

exhaustion defense where OCCA declined to accept petitioner’s filings). Given

our resolution, we need not address whether procedural bar in these circumstances

would constitute an independent and adequate state law ground precluding review

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of Mr. Beavers’ ineffectiveness claims. 2 We now turn to the merits of the claim. 3

“[G]ross misadvice concerning parole eligibility can amount to ineffective

assistance of counsel.” Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988).

2
We do note that a post-conviction application confined to the issue of an
appeal out of time does not appear to have any factfinding procedure “whereby a
petitioner can adequately develop the factual basis of his claims of
ineffectiveness.” English, 146 F.3d at 1263. The pertinent inquiry is “the ability
to prove [defendant] was denied an appeal through no fault of his/her own.”
Okla. R. Crim. App. 2.1E(1) (citing Smith v. State, 611 P.2d 276 (Okla. Crim.
App. 1980)).
3
The dissent suggests that Mr. Beavers did not “fairly present” this claim to
the state court in his first application. See 28 U.S.C. § 2254(b)(1)(A) (exhaustion
requirement). A federal claim that is procedurally defaulted on adequate and
independent state law grounds has not been properly exhausted, i.e. fairly
presented to the state court. See Edwards v. Carpenter, 120 S. Ct. 1587, 1592
(2000); O’Sullivan v. Boerckel, 526 U.S. 838, 848-49 (1999). Procedural default
protects the integrity of the exhaustion requirement–a petitioner that merely lets
the time run on state remedies or presents a federal claim to a state court “in such
a manner that the state court could not, consistent with its own procedural rules,
have entertained it,” has not given the state a fair opportunity to pass on the
claims. Edwards, 120 S. Ct. at 1592.
There is a "strong presumption" in favor of requiring exhaustion of state
remedies. See Castille v. Peoples, 489 U.S. 346, 349 (1989). "An exception is
made only if there is no opportunity to obtain redress in state court or if the
corrective process is so clearly deficient as to render futile any effort to obtain
relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); 28 U.S.C.
§ 2254(b)(1)(B). Here, Mr. Beavers presented his federal ineffectiveness claim to
the OCCA, though it was not factually developed in the first application.
Regardless, it is apparent that a more detailed account of the ineffective
assistance claim in the first application would have been futile because the
appeal-out-of-time issue is decided on the basis of fault, not on the merits of the
claims sought to be advanced. See Young v. State, 902 P.2d 1089, 1090 n.1
(Okla. Crim. App. 1994); Buchanan v. Page, 451 P.2d 17, 18 (Okla. Crim. App.
1969); see also Bear v. Boone, 173 F.3d 782, 784 (10th Cir. 1999) (invoking
futility in exhaustion context).

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See also Lucero v. Attorney General, No. 99-1070, 1999 WL 1206658, at *2 (10th

Cir. Dec. 16, 1999) (unpublished); Meyers v. Gillis, 93 F.3d 1147, 1153-54 (3d

Cir. 1996); James v. Cain, 56 F.3d 662, 667-69 (5th Cir. 1995); United States v.

Keller, 902 F.2d 1391, 1394 (9th Cir. 1990); Holmes v. United States, 876 F.2d

1545, 1552 (11th Cir. 1989); O’Tuel v. Osborne, 706 F.2d 498 (4th Cir. 1983);

Cepulonis v. Ponte, 699 F.2d 573, 577 (1st Cir. 1983); cf. Worthen v. Meachum,

842 F.2d 1179, 1184 (10th Cir. 1988), overruled on other grounds, Coleman v.

Thompson, 501 U.S. 722 (1991) (noting that “a bad guess by his attorney does not

render a plea involuntary” but is only involuntary “when the attorney is held to

have been constitutionally ineffective.”). In order to succeed on a claim of

ineffective assistance, Mr. Beavers must establish that his counsel’s performance:

(1) fell below an objective standard of reasonableness and (2) that he was

prejudiced by this performance. See Scoggin v. Kaiser, 186 F.3d 1203, 1206

(10th Cir. 1999).

First, attorney advice which misrepresents the date of parole eligibility by

several years can be objectively unreasonable. See O’Tuel, 706 F.2d at 501

(holding that ten year difference in parole dates deprived defendant of effective

assistance). Second, Mr. Beavers alleges that he “would not have waived my

rights to a jury trial and entered a plea of guilty . . . had I known that it would

take twenty-two and one-half (22 ½) years to make parole.” Aplt. App. at 90.

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This may be sufficient to meet the prejudice requirement. See Hill v. Lockhart,

474 U.S. 52, 59 (1985) (defendant must “show 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 trial.”).

If the facts alleged by Mr. Beavers are true, he would be entitled to relief

under 28 U.S.C. § 2254(d)(1). See Miller, 161 F.3d at 1253. Trial counsel admits

that he gave incorrect advice and that parole eligibility was an important part of

the plea. See Affidavit of Counsel, Aplt. App. at 94-95 (“One of Mr. Beavers’

major concerns was the amount of time it would take to make parole on a life

sentence. I advised him that it would take ten (10) to twelve (12) years to make

parole . . . . I have since learned . . . that my statement to Mr. Beavers was wrong

and that it was wrong at the time given.”). The crime of first degree malice

murder was punishable by either life imprisonment without parole or life

imprisonment, thus further highlighting the importance of parole eligibility. As

noted, Mr. Beavers contends that he would have insisted on going to trial.

Thus, having pursued but been denied a hearing on this claim in state court,

Mr. Beavers is entitled to a hearing. See Miller, 161 F.3d at 1253. Accordingly,

we remand this issue to the district court to conduct an evidentiary hearing. See

Yordan v. Dugger, 909 F.2d 474, 478-79 (11th Cir. 1990) (remanding for

evidentiary hearing); Holmes, 876 F.2d at 1553 (same); Sparks, 852 F.2d at 884

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(same); see also United States v. Leonard, No. 91-5021, 1992 WL 232468 (10th

Cir. Aug. 28, 1992). If the court determines that Mr. Beavers’ factual allegations

are uncontested or true and he was denied the effective assistance of counsel, then

it must order an appropriate remedy. Oklahoma can either retry Mr. Beavers

within a reasonable period of time, or reduce his sentence so as to provide parole

eligibility within ten to twelve years. See O’Tuel, 706 F.2d at 501; see also

Strader v. Garrison, 611 F.2d 61, 65 (4th Cir. 1979).

Our resolution of Mr. Beavers’ ineffective assistance claim as not

procedurally barred makes it unnecessary for us to further discuss the import of

Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998), on this case.

Accordingly, we AFFIRM the denial of the habeas petition on the claims of

misleading advice from the OCCA and involuntary plea based on threat of

prosecution, REVERSE on the claim of involuntary plea based on ineffective

assistance of counsel, and REMAND for an evidentiary hearing.

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No. 99-6154, Beavers v. Saffle

BALDOCK, Circuit Judge, dissenting.

Principles of comity and federalism demand that a federal habeas

petitioner timely raise his federal constitutional claims in state court with

sufficient specificity to allow the state court a fair opportunity to consider those

claims in the first instance. E.g., Picard v. Connor, 404 U.S. 270, 278 (1972)

(holding that “the substance of a federal habeas corpus claim must first be

presented to the state courts.”). Provided that an “adequate and independent”

state-law procedural basis justifies the habeas petitioner’s continuing state

detention, a petitioner who fails to timely raise such claims in state court

is procedurally barred from subsequently raising those same claims in federal

court, unless he can “demonstrate cause for the default and actual prejudice as

a result of the alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Proper application of these legal principles to the record facts of this

case compels the conclusion that Petitioner has procedurally defaulted his

claim he received ineffective assistance of trial counsel when, in March 1992,

he pled guilty to first degree murder as a result of counsel’s advice regarding

his parole eligibility. In its haste to reach the merits of Petitioner’s ineffective

assistance of counsel claim, however, the court foregoes proper application
of these longstanding principles because, according to the court, Petitioner

raised this claim in his first application for state post-conviction relief.

I disagree, and dissent. 1

My review of the record reveals that Petitioner’s February 5, 1993

“Application to Appeal Out of Time,” which the court properly construes as

a first application for state post-conviction relief, Court’s Op. at 10, failed

to “fairly present” his claim of ineffective assistance of counsel based on

counsel’s advice regarding Petitioner’s parole eligibility. See Smallwood v.

Thompson, 191 F.3d 1257, 1266-69 (10th Cir. 1999), petition for cert. filed

(U.S. March 9, 2000) (No. 99-9445) (applying procedural bar where petitioner

failed in his first application for state post-conviction relief to provide state

courts with the factual basis for his federal ineffective assistance of counsel

claim). Nor did Petitioner raise this claim in his second application filed

1
This court has viewed with skepticism Oklahoma’s state procedural rule
barring ineffective assistance of trial counsel claims not raised on direct appeal.
See Miller v. Champion, 161 F.3d 1249, 1252 (10th Cir. 1998). Perhaps this
explains why the State does not argue that Petitioner has foregone his right to
assert his ineffective assistance claim by failing to raise it on direct appeal.
Rather, the State argues procedural default based only on Petitioner’s failure to
raise this claim in his first application for state post-conviction relief. While the
court could address sua sponte the question of Petitioner’s possible procedural
default resulting from his failure to effect a direct appeal, see Hardiman v.
Reynolds, 971 F.2d 500, 502-05 (10th Cir. 1992), it apparently exercises its
discretion not to do so. See id. at 504 (holding that a court may raise a state
procedural bar defense sua sponte, but need not do so).

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April 26, 1993. See Court’s Op. at 10.

After multiple state filings, Petitioner finally raised his present ineffective

assistance of counsel claim before the state courts for the first time in March

1997, five years after his guilty plea. Both the Oklahoma State District Court

and Court of Criminal Appeals denied Petitioner’s ineffective assistance of

counsel claim as procedurally barred. See Aplt’s App. at 114-124. Because

the Oklahoma state courts never had a timely opportunity to consider Petitioner’s

ineffective assistance of counsel claim, and now deem it procedurally barred,

see Okla. Stat. Ann. tit. 22, § 1086 (West 1986), the district court properly held

that Petitioner was procedurally barred from raising it in a § 2254 petition. 2 See

Moore v. Reynolds, 153 F.3d 1086, 1096-97 (10th Cir. 1998), cert. denied, 526

U.S. 1025 (1999) (petitioner’s failure to raise ineffective assistance of counsel

claims until his second application for state post-conviction relief precluded

2
Because Petitioner eventually raised his present ineffective assistance
of counsel claim in the Oklahoma state courts, he has exhausted his state remedies
as to this claim as required by 28 U.S.C. § 2254(b)(1)(A). See Edwards v.
Carpenter, 120 S. Ct. 1587, 1592 (2000) (where a petitioner presents his claim to
the state court in a manner such that the state court will not reach it under its own
procedural rules, petitioner has exhausted his state remedies); Coleman. 501 U.S.
at 732 (“A habeas petitioner who has defaulted his federal claims in state court
meets the technical requirements for exhaustion; there are no state remedies any
longer ‘available’ to him.”). See generally Bailey v. Nagle, 172 F.3d 1299,
1306-07 (11th Cir. 1999) (Carnes, J., concurring) (explaining the related
doctrines of exhaustion and procedural bar).

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federal habeas review of those claims). See also Medlock v. Ward, 200 F.3d

1314, 1323 (10th Cir. 2000) (recognizing that Oklahoma’s procedural rule barring

claims not raised in a first state post-conviction petition is independent and

adequate).

In his first application submitted February 1993, Petitioner set forth nine

“propositions” of error which allegedly entitled him to an appeal out of time.

Aplt’s App. at 27-28. Proposition eight addresses trial counsel’s performance:

“The totality of the absence of attorney’s performance rendered his assistance

totally deficient and the conviction was rendered in violation of the sixth

amendment.” Id. at 28. Why Petitioner believed counsel’s performance was

deficient is anybody’s guess. The possible reasons are endless and the Oklahoma

state courts were not required to surmise what those reasons might be.

A claim is “fairly presented” to the state courts only if a petitioner

describes the operative facts and legal theories on which he bases his claim.

Otherwise, the state courts have no “fair opportunity” to consider the claim.

As Judge Henry recently explained for our court:

“Fair presentation” of a prisoner’s claim to the state courts means
that the substance of the claim must be raised there. The prisoner’s
allegations and supporting evidence must offer the state courts “a
‘fair opportunity’ to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Therefore, although a habeas
petitioner will be allowed to present “‘bits of evidence’” to a federal
court that were not presented to the state court that first considered
his claim, evidence that places the claims in a significantly different

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 legal posture must first be presented to the state courts.

Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997) (citations omitted).

None of Petitioner’s arguments in his February 1993 application even

remotely refer to trial counsel’s improper advice regarding Petitioner’s parole

eligibility. The only factual references to his trial counsel’s performance in

the eight page document pertain to counsel’s failure to appeal a “question of

law” involving non-verbal communications between a husband and wife in the

presence of a six-year-old child. On appeal, Petitioner doesn’t even argue

he raised his claim of ineffective assistance of counsel in his February 1993

application. Nor does he set forth sufficient cause for his default. Instead,

he argues a miscarriage of justice would result from our failure to address his

claim. 3 Nonetheless, this court sets a dangerous precedent for federal-state

relations by concluding sua sponte that Petitioner preserved his claim by

raising it in his February 1993 application.

This court dismisses the application’s lack of specificity because

“[n]either the [Oklahoma] district court nor the OCCA would rule on the

3
The fundamental miscarriage of justice exception is available only
where a petitioner provides the court with a colorable showing of factual
innocence. Herrera v. Collins, 506 U.S. 390, 404 (1993). Petitioner makes
no such showing in this case.

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merits of Mr. Beavers’ ineffective assistance claim based upon his appeal

out of time motion.” Court’s Op. at 11. In other words, the court concludes

that Petitioner’s failure to specify the factual basis of his claim in his first

application is of no consequence. Why then does the court require Petitioner

to even mention his ineffective assistance of counsel claim in his application

at all? Given the court’s reasoning, such a requirement appears to be an

unnecessary formality.

The court’s reasoning is circular. To justify reaching the merits of

Petitioner’s claim, the court first concludes that Petitioner’s application

constituted a petition for state post-conviction relief. Then, to avoid application

of the “fair presentation” doctrine, the court concludes that the petition’s cursory

allegations are sufficient because really the petition was an application for

an appeal out of time. In this context, the court suggests that “a more detailed

factual account of the ineffective assistance claim in the first application would

have been futile because the appeal-out-of-time issue is decided on the basis of

fault, not on the merits of the claim sought to be advanced.” Court’s Op. at 13

n.3. If this is so, why does the court require Petitioner to raise an ineffective

assistance of counsel claim in his application at all since surely to do so was futile

as well?

Based on the foregoing, it is painfully apparent that the question in this

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case is not, as this court suggests, whether the Oklahoma state courts would

rule on the merits of Petitioner’s ineffective assistance of counsel claim, but

rather whether Petitioner “fairly presented” his claim to the state courts in a

timely manner, thus providing our state brethren a “fair opportunity” to consider

it consistent with principles of comity and federalism. Plainly, Oklahoma

law required Petitioner to set forth the factual basis for his claim in his February

1993 application. Under Smith v. State, 611 P.2d 276, 277 (Okla. Crim. App.

1980), the proper procedure for Petitioner to seek an appeal out of time was to

file an application for post-conviction relief in the state trial court. The form of

application for post-conviction relief applicable to Petitioner’s case is set forth in

Okla. R. Crim. App. 5.4 (West 1986) (superceded by Okla. R. Crim. App. Form

13.11 (West Supp. 2000)). This form plainly required the Petitioner to set

forth his ineffective assistance of counsel claim in factual detail. 4

“Whenever a federal court grants habeas relief to a state prisoner the

issuance of the writ exacts great costs to the State’s legitimate interests in

4
The court’s suggestion that Petitioner had no opportunity to develop his
present ineffective assistance of counsel claim in his first application for post
conviction relief is incorrect. See Court’s Op. at 12. As a basis for his failure to
timely appeal his conviction, Petitioner could have easily stated he didn’t appeal
because his counsel advised him he would be eligible for parol in ten to twelve
years, rather than the twenty years he now claims. Petitioner could have just as
easily attached his counsel’s affidavit in support of his claim. See Aplt’s App. at
94-95.

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finality.” Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam). The

longer the period between trial and retrial, the greater the costs and burdens.

Id. Today, this court ignores the “important interest in finality served by state

procedural rules, and the significant harm to the States that results from the

failure of federal courts to respect them.” Coleman, 501 U.S. at 750.

Over eight years after Petitioner pled guilty to first degree murder, this

court tells the district court to conduct an evidentiary hearing into Petitioner’s

ineffective assistance of counsel claim even though an independent and

adequate state procedural ground bars Petitioner from pursuing this claim

in state court. See Moore, 153 F.3d 1096-97. See also Coleman, 501 U.S.

at 732 (“The independent and adequate state ground doctrine ensures that the

States’ interest in correcting their own mistakes is respected in all federal

habeas cases.”). “No procedural principle is more familiar [or well established]

. . . than that a constitutional right may be forfeited in criminal . . . cases by the

failure to make timely assertion of the right before a tribunal having jurisdiction

to determine it.” Yakus v. United States, 321 U.S. 414, 444 (1944).

Because (1) Petitioner failed to fairly present his claim of ineffective

assistance of counsel to the Oklahoma state courts in his first application

for state post-conviction relief, and (2) the Oklahoma state courts consider

Petitioner procedurally barred from raising his claim in a successive application,

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he likewise is procedurally barred from asserting that claim in federal court.

See Moore, 153 F.3d at 1096-97. The district court got it right the first time.

Accordingly, I would affirm the judgment of the district court in all respects.

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