F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 21 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
BRANDON PAUL OWENS,
Petitioner - Appellant,
v.
No. 02-6170
(D.C. No. 01-CV-1388-R)
REGINALD HINES, Warden and THE
(W.D. Oklahoma)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents -Appellees.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and HARTZ, Circuit Judges.
Brandon P. Owens, a pro se prisoner, seeks a certificate of appealability
from the district court’s denial of his petition for habeas relief. Owens pled
guilty and was convicted of Feloniously Carrying a Weapon, After Former
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Conviction of Two or More Felonies, and he received a twenty-year prison
sentence. After the statutory period for withdrawing his guilty plea had expired,
Owens filed a petition for state post-conviction relief, asserting three grounds for
relief: (1) denial of a direct appeal through no fault of his own; (2) denial of his
right to counsel as a result of a conflict of interest; and (3) denial of his due
process and equal protection rights by enhancement of his sentence. Owens v.
State, No. PC-2001-704, slip op. at 1 (Okla. Crim. App. Aug. 17, 2001). The
Oklahoma Court of Criminal Appeals (OCCA) denied relief, id. at 4, rejecting
Owens’s first ground on the merits and the second and third grounds as
procedurally barred. The provisions of the Anti-Terrorism and Effective Death
Penalty Act (AEDPA) apply to this petition.
As to the first and third grounds, we deny a certificate of appealability
substantially for the reasons given by the district court.
In his second ground for relief, Owens argues that he was denied effective
assistance of trial counsel when his attorney “enticed” him into pleading guilty by
stating that if he did not accept the offer the prosecutor would withdraw from plea
negotiations and “pick a redneck jury.” (Aplt. B. 10.) Owens argues that such
enticement amounts to a conflict of interest. The OCCA did not consider the
merits of this claim because it concluded that this claim was procedurally barred
because it was not raised on direct appeal. The district court denied habeas relief
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on this claim, reasoning that it was procedurally barred because “the Petitioner
was aware of the factual basis for this claim, and could have raised it as a ground
for withdrawal of his plea.” (Slip op. at 2 (citing English v. Cody, 146 F.3d 1257,
1264 (10th Cir. 1999).) The district court concluded alternatively that this claim
fails on the merits.
We assume, for purposes of this opinion, that Oklahoma’s procedural bar of
this claim is not adequate to bar our consideration of this claim, and therefore that
our review of its merits is de novo. See Johnson v. Gibson, 169 F.3d 1239, 1252
(10th Cir. 1999) (deciding petitioner’s claim on the merits after assuming that
claim is not procedurally barred). We conclude that Owens has failed to
demonstrate that counsel’s performance amounted to ineffective assistance of
counsel. See Fields v. Gibson, 277 F.3d 1203, 1216 (10th Cir. 2002) (holding
that counsel did not render deficient performance in convincing the petitioner to
plead guilty, because counsel “did not coerce Fields but merely ‘strongly urged’
him to do what they thought was in his best interest ”). Owens alleges only that
counsel advised him that, if he rejected the plea offer, the prosecution would not
make other offers and that the jury composition would be unfavorable. Because
such advice plainly does not amount to coercion, see id. at 1210, 1212-14 (finding
no coercion where counsel “pulled out all the stops” to convince her client to
plead guilty, telling her client that if he did not plead guilty he would be
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sentenced to death, whereas if he pled guilty he very likely would not, and
enlisting family members to urge him to plead guilty), Owens’s claim is without
merit.
Liberally construed, Owens’s petition also argues that counsel was
ineffective for failing to argue that Owens was ineligible for the twenty-year
sentence he received. We assume for purposes of this appeal that this claim was
exhausted and that Oklahoma’s procedural bar is not adequate to foreclose our de
novo consideration of this claim. Owens was sentenced under 21 O.S. § 51(B),
which provided a sentence of “not less than” twenty years for “[e]very person
who, having twice been convicted of felony offenses, commits a third . . . felony
offense[] within ten (10) years of the date following the completion of the
execution of the sentence.” 1 Owens contends that counsel should have argued
that § 51(B) did not apply to him because he had not yet completed his term of
imprisonment on his prior felony convictions. We find no ineffective assistance
of counsel. Owens’s eligibility for § 51(B) enhancement began after he was
“twice . . . convicted of felony offenses.” See Kirkendall v. State, 725 P.2d 882,
884 (Okla. Crim. App. 1986) (“When an appeal has not been perfected within six
21 O.S. § 51 was repealed effective July 1, 1999 (Owens was sentenced
1
in April, 2000) and replaced with 21 O.S. § 51.1. The new § 51.1(B) is
substantially identical in all relevant respects to the provision under which Owens
was sentenced.
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months of the judgment and sentence as provided by law, that judgment and
sentence may be used to enhance punishment in a subsequent trial under 21
O.S.1981, § 51.”). 2 Contrary to Owens’s present argument, the statutory phrase
“within ten (10) years of the date following the completion of the execution of the
sentence” describes only the end point, and not the starting point, of § 51(B)
eligibility. Accordingly, counsel’s decision not to challenge Owens’s § 51(B)
eligibility was not deficient performance.
CONCLUSION
For the foregoing reasons, a certificate of appealability is DENIED and the
appeal is DISMISSED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
2
Owens does not allege that, at the time he received his present sentence,
he had perfected an appeal as to his prior convictions or less than six months had
passed since entry of judgment.
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