McGee v. Higgins

FILED
United States Court of Appeals
Tenth Circuit

June 16, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER DWAYNE MCGEE,

Petitioner-Appellant,

v. No. 07-6243

HASKELL HIGGINS, Warden,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:06-CV-00807-R)

Submitted on the briefs: *

Fred Randolph Lynn, Tulsa, Oklahoma, for Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, Stephanie D. Jackson,
Assistant Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

*
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.
 Christopher Dwayne McGee, an Oklahoma state prisoner appearing with

appointed counsel, appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. After considering Mr. McGee’s

application for a certificate of appealability (COA) under 28 U.S.C. § 2253(c), we

previously granted a COA on the following claims: “(1) McGee’s ineffective

assistance of [appellate] counsel claim for failure to raise the specific

performance of his plea agreement, and (2) his claim that he did not voluntarily

change his plea to not guilty.” 1 Order of April 22, 2008 at 7. With regard to the

latter claim, we note that the COA grant included a Sixth Amendment claim based

on Mr. McGee’s allegation that he was not represented by counsel at the

withdrawal of plea hearing that was held in the state trial court on August 27,

2003.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the

district court’s denial of habeas relief on each of these claims.

1
To the extent that the pro se briefs and other filings that Mr. McGee
submitted to this court before we appointed counsel to represent him in this
appeal contain additional constitutional challenges relating to his plea agreement,
the withdrawal of his plea, and/or his trial in April 2004, we deny a COA on any
such claims because Mr. McGee has not made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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 I. Background.

In January 2001, Mr. McGee was charged in an Information filed in the

District Court of Stephens County, State of Oklahoma, with two counts of

distribution of a controlled dangerous substance (Counts I and III), and two

counts of conspiracy to distribute a controlled dangerous substance (Counts II and

IV), in violation of Okla. Stat. tit. 63, §§ 2-401(A) and 2-408. See R., Doc. 1,

Ex. E at 1-2. The Information stated that the punishment for each count was

“a fine of up to $20,000 or imprisonment for 2 years-Life, or both.” Id.; see also

Okla. Stat. tit. 63, §§ 2-401(B)(2) and 2-408. In February 2001, the government

filed a Supplemental Information informing the trial court that Mr. McGee had

three prior felony convictions under Oklahoma law. See Aplee. Second Supp. Br.,

Ex. 6.

Although not specifically indicated in the Supplemental Information, the

government filed the Supplemental Information in order to enhance Mr. McGee’s

sentences under Okla. Stat. tit. 21, § 51.1. At the time the Supplemental

Information was filed in February 2001, § 51.1(B) provided that “[e]very person

who, having been twice convicted of felony offenses, commits a third, or

thereafter, felony offenses . . ., shall be punished by imprisonment in the State

Penitentiary for a term of not less than twenty (20) years.” Okla. Stat. tit. 21,

§ 51.1(B) (eff. July 1, 1999). Due to the filing of the Supplemental Information,

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“the minimum sentence [Mr. McGee] was facing for each [of the four counts

charged against him] was twenty . . . years imprisonment, and the maximum

sentence was life.” Aplee. Second. Supp. Br. at 12. Effective July 1, 2001,

however, the Oklahoma legislature amended § 51.1, and, for drug offenses such

as those charged in the original Information filed against Mr. McGee, the

amended version of the statute provided that “[e]very person who, having been

twice convicted of felony offenses, commits a subsequent felony offense . . ., is

punishable by imprisonment in the State Penitentiary for a term in the range of

three times the minimum term for a first time offender to life imprisonment.”

Okla. Stat. tit. 21, § 51.1(C) (eff. July 1, 2001).

On November 21, 2001, Mr. McGee appeared in the trial court with counsel

and entered a plea of guilty to all four counts charged in the original Information.

See R., Doc. 8, Ex. 14. Pursuant to the terms of the plea agreement that

Mr. McGee negotiated with the State, although there was no “agreed

recommendation of the State as to penalty,” id. at 2, the government agreed to

drop the Supplemental Information and not seek to enhance Mr. McGee’s

sentences under Okla. Stat. tit. 21, § 51.1, see R., Doc. 8, Ex. 14 at 2-3. The trial

judge, the Honorable George W. Lindley, accepted Mr. McGee’s guilty plea and

specifically confirmed that there would be “no enhancer” based on Mr. McGee’s

prior felony convictions. Id. at 3.

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 Judge Lindley subsequently sentenced Mr. McGee at a hearing held on

January 7, 2002. After hearing arguments from counsel for Mr. McGee and the

government, neither of whom said anything about the terms of the plea

agreement, Judge Lindley made findings and imposed the following sentences:

Well, the Pre-Sentence Investigation indicates a prior history
of criminal activity. . . . Now, in this particular case the preparer
points out that Mr. McGee was not armed and there is no indication
that there was any violence associated with this activity. He does,
however, in the past have a robbery by fear conviction.[ 2] However,
the Pre-Sentence Investigation indicates that . . . Mr. McGee has not
had contact with law enforcement between 1989 and 2000.

I think the most disturbing matter in the report is the fact that
the Defendant, while in denial of the problem that he has, tested
positive for cocaine and marijuana at the time the Pre-Sentence
Investigation was conducted. I don’t think I have ever seen that in
twenty-eight years on the bench.

Mr. McGee, there are four charges against you, each of which
would carry life in the penitentiary as a maximum penalty. Because
of the past record and the circumstances surrounding the
Pre-Sentence, the Court will sentence you to a period of thirty years
on each of the counts against you, assess a two thousand five
hundred dollar fine and costs. I will order that these sentences run
concurrent, each with the other.

R., Doc. 8, Ex. 13 at 5-6.

Although Judge Lindley gave no explicit indication during the sentencing

hearing that he was relying on Mr. McGee’s prior felony convictions to enhance

2
We note that the Supplemental Information does not list a prior conviction
for robbery by fear, see Aplee. Second Supp. Br., Ex. 6, and this statement
appears to be a mistake.

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Mr. McGee’s sentences under Okla. Stat. tit. 21, § 51.1, the Judgment and

Sentence that Judge Lindley signed on the same day specifically states that “[t]he

Court finds the defendant has two or more prior felony conviction(s) and this

sentence has been enhanced in accordance with the provisions set forth in

21-51.” 3 See Aplee. Second Supp. Br., Ex. 7 at 1. But the Judgment and

Sentence does not indicate which version of the enhancement statute Judge

Lindley was applying. It is thus unclear whether he was applying the pre-July 1,

2001, version, which would have provided a sentencing range of twenty years to

life for each of the four counts charged against Mr. McGee, or the post-July 1,

2001, version, which would have provided a sentencing range of six years to life

for each count.

On January 10, 2002, Mr. McGee’s trial counsel filed a motion to withdraw

Mr. McGee’s guilty plea. Judge Lindley subsequently held a hearing on the

motion to withdraw, and Mr. McGee testified at the hearing that he was seeking

to withdraw his guilty plea because he had not understood the sentencing ranges

that applied to his case. See Aplee. Notice of Compliance with Order, Ex. 2 at 5,

6, 13. In a letter to the parties dated January 25, 2002, Judge Lindley summarily

denied Mr. McGee’s motion to withdraw his guilty plea. Id., Ex. 3.

3
The statute cited by Judge Lindley, Okla. Stat. tit. 21, § 51, is an earlier
version of Oklahoma’s prior felony enhancement statute that was repealed in
1999. As a result, we will assume that Judge Lindley meant to cite Okla. Stat. tit.
21, § 51.1 (eff. July 1, 1999) in the Judgment and Sentence.

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 Subsequently, with the assistance of appointed appellate counsel,

Mr. McGee filed a petition for a writ of certiorari in the Oklahoma Court of

Criminal Appeals (OCCA), arguing that the trial court had breached his plea

agreement by enhancing his sentences based on the prior felony convictions set

forth in the Supplemental Information. In a summary opinion entered on July 1,

2003, the OCCA granted Mr. McGee’s petition for certiorari, concluding as

follows:

The crux of McGee’s petition for certiorari is that he should be
allowed to withdraw his guilty plea because he pled guilty after the
State agreed to drop the “second page,” and the trial court agreed that
there would be “no enhancer” in the case. Yet the Record clearly
reveals that McGee’s ultimate conviction and sentence were based
upon a finding that he had two or more prior felony convictions; and
his sentence was enhanced accordingly.

On May 29, 2003, the State filed a notice with this Court
confessing error in this regard. The State admits that McGee’s guilty
plea was based upon an agreement that the second page would be
dropped, but that his ultimate sentence was enhanced based upon his
prior convictions. The State suggests that the proper remedy is to
remand the case to the district court, where McGee should be
allowed to withdraw his guilty plea. This Court agrees.

R., Doc. 8, Ex. 10 at 2. The OCCA therefore remanded the case to the trial court

with instructions that “McGee shall be allowed to WITHDRAW HIS GUILTY

PLEA to the four counts to which he pled in this case.” Id. at 3.

On remand to the trial court, a withdrawal of plea hearing was held before

Judge Lindley on August 27, 2003. The parties dispute what transpired at the

hearing and who attended the hearing, and we note that, during the proceedings in

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this case before the district court, the government represented that there is no

transcript of the hearing. See R., Doc. 18 at 1-2. The record does show, however,

that Judge Lindley entered a “Court Minute” in connection with the hearing,

stating that “Defendant enters a plea of not guilty on this 27th day of August,

2003.” Id., Doc. 18, Ex. 1. In addition, as the government has pointed out, there

is also a “‘jacket minute’ [from the trial court] dated August 27, 2003, noting that

‘counsel agrees for court to allow w/draw of guilty pleas. Def. enters N.G., Bond

set $25,000.00 report Oct. 14, 2003, as ordered.’” Id., Doc. 18 at 2 (quoting Ex. 2

to Doc. 18). According to Mr. McGee, however, he was not represented by

counsel at the hearing on August 27, 2003, and he further claims that he did not

voluntarily withdraw his guilty plea and enter a plea of not guilty at the hearing.

Instead, as alleged by Mr. McGee’s current counsel, Judge Lindley simply

“deemed his pleas of guilty changed to pleas of not guilty.” Aplt. First Supp. Br.

at 4.

In April of 2004, Mr. McGee was convicted by a jury of Count III

(distribution of a controlled dangerous substance after two or more prior felony

convictions) and Count IV (conspiracy to distribute a controlled dangerous

substance after two or more prior felony convictions). 4 See Aplee. Second Supp.

4
Counts I and II, which alleged distribution of and conspiracy to distribute a
controlled dangerous substance on a separate date, were dismissed by the trial
court during trial. See McGee v. State, 127 P.3d 1147, 1148 n.1 (Okla. Crim.
(continued...)

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Br., Ex. 8 at 1-4. The jury fixed punishment at twenty years’ imprisonment on

each count. Id. at 3-4. The jury had been instructed that the sentencing range for

both counts was six years to life. See Aplee. Notice of Compliance with Order,

Ex. 4 at 1-2, 3. On May 14, 2004, in accordance with the jury’s recommendation,

the Honorable Joe H. Enos sentenced Mr. McGee to twenty years’ imprisonment

on each count, and he ordered the terms of imprisonment to run consecutively, for

a total prison sentence of forty years. See Aplee. Second Supp. Br., Ex. 9 at 1.

Mr. McGee appealed his convictions on Counts III and IV to the OCCA,

raising five propositions of error that are not relevant to this appeal. See McGee

v. State, 127 P.3d 1147, 1148-49 (Okla. Crim. App. 2006). In a summary opinion

published on January 5, 2006, the OCCA affirmed Mr. McGee’s conviction on

Count III, but reversed and remanded with instructions to dismiss the conviction

on Count IV on grounds of insufficient evidence. Id. at 1149-50. As a result of

the OCCA’s action, Mr. McGee is serving one twenty-year prison sentence on one

distribution count.

Mr. McGee subsequently filed a pro se application for post-conviction

relief in the trial court, raising four claims: (1) ineffective assistance of appellate

counsel; (2) improper imposition of a sentence; (3) prosecutorial misconduct; and

(4) imposition of a fine not authorized by law. See R., Doc. 8, Ex. 7 at 3. The

4
(...continued)
App. 2006).

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trial court denied Mr. McGee’s application for post-conviction relief, and the

OCCA affirmed. Id. at 3-4. As the OCCA noted in its order affirming the denial

of post-conviction relief, “all of [Mr. McGee’s post-conviction] claims revolved

around his previous assertions of a violation of his prior plea agreement and

ineffective assistance of counsel.” Id. at 3. Mr. McGee did not assert any

challenges to the voluntariness of the not guilty plea that was entered at the

hearing that was held before Judge Lindley on August 27, 2003, or claim that he

was not represented by counsel at that hearing. Id., Exs. 4 and 6. Because

Mr. McGee likewise did not assert the latter claims in his two prior appeals to the

OCCA, he never asserted the claims in the state court proceedings.

In July 2006, Mr. McGee, proceeding pro se, filed his habeas petition under

28 U.S.C. § 2254 in the district court. In September 2007, the district court

entered an order denying Mr. McGee’s habeas petition. In its order, the court

summarized Mr. McGee’s habeas claims as follows:

The essence of [Mr. McGee’s habeas claims] is that he
instructed his appellate counsel during his certiorari appeal not to
seek withdrawal of his guilty plea but to seek a sentence modification
based upon the plea agreement that had been made; that he never
withdrew his guilty pleas and did not have counsel present with him
when he allegedly withdrew his guilty pleas . . . . Basically
[Mr. McGee] claims herein that his counsel for the certiorari appeal
was constitutionally ineffective and deprived him of a right to
specifically enforce his original plea agreement.

R., Doc. 19 at 1-2. The court then concluded that the claims were moot,

reasoning as follows:

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 Once [Mr. McGee] withdrew his guilty pleas, he was placed back in
the position that he was prior to plea negotiations . . ., so there was
no plea agreement that could be enforced. Having entered a plea of
not guilty, proceeded to trial, been convicted, appealed the
conviction and, had the conviction affirmed in part and reversed in
part on appeal, claims pertaining to [Mr. McGee’s] prior conviction
and sentence entered on January 7, 2002 are moot, including
[Mr. McGee’s] claim that his counsel on his certiorari appeal was
constitutionally ineffective.

Id. at 3. Mr. McGee is now appealing the district court’s denial of his habeas

petition.

II. Analysis.

As set forth below, although we affirm the district court’s denial of

Mr. McGee’s habeas petition, we do so for different reasons than those relied on

by the district court

A. Standard of Review.

In its order affirming the denial of Mr. McGee’s application for

post-conviction relief, the OCCA denied Mr. McGee’s claim that he received

ineffective assistance from his appellate counsel during his certiorari appeal on

the merits. See R., Doc. 8, Ex. 7 at 4. Thus, “ordinarily our review would be

limited to determining whether [Mr. McGee] can show that the state court’s

disposition is ‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States.’” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quoting

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28 U.S.C. § 2254(d)(1)). “However, this deferential standard of review does not

apply if the state court employed the wrong legal standard in deciding the merits

of the federal issue.” Id. We conclude that the OCCA applied the wrong standard

here.

As we recognized in Cargle, “[t]he proper standard for assessing a claim of

ineffectiveness of appellate counsel is that set forth in Strickland v. Washington,

466 U.S. 668 . . . (1984).” 317 F.3d at 1202. “Thus, the petitioner must show

both (1) constitutionally deficient performance, by demonstrating that his

appellate counsel’s conduct was objectively unreasonable, and (2) resulting

prejudice, by demonstrating a reasonable probability that, but for counsel’s

unprofessional error(s), the result of the proceeding . . . would have been

different.” Id.

In its order affirming the denial of Mr. McGee’s application for

post-conviction relief, the OCCA correctly paraphrased Strickland’s two-prong

inquiry when it addressed Mr. McGee’s claim that he received ineffective

assistance from his appellate counsel during his certiorari appeal. See R., Doc. 8,

Ex. 7 at 3-4 (citing Strickland, 466 U.S. at 687). But the OCCA also set forth a

different standard for analyzing the issue of whether appellate counsel’s

performance was deficient, stating that “[t]he fact appellate counsel fails to

recognize or raise a claim, regardless of merit, is not and cannot alone be

sufficient to establish ineffective assistance . . . .” Id. at 4 (emphasis added).

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In Cargle, we explicitly disavowed this standard as inconsistent with Strickland.

As we explained:

[The OCCA’s] truncation of the Strickland test [has]
enable[d] the OCCA to reject appellate ineffectiveness allegations
without any assessment of the merits of underlying predicate claims,
so that the OCCA has been able to declare that a “failure to raise
even a meritorious claim does not, in itself, constitute deficient
performance.” Slaughter v. State, 969 P.2d 990, 996
(Okla. Crim. App. 1998) . . . .

....

It is clearly wrong, as a matter of federal law, to require as a
necessary condition for relief under Strickland, something beyond the
obvious merit of the omitted claim. The very focus of a Strickland
inquiry regarding performance of appellate counsel is upon the merits
of omitted issues, and no test that ignores the merits of the omitted
claim in conducting its ineffective assistance of appellate counsel
analysis comports with federal law. A sufficiently meritorious
omitted claim certainly can, by itself (or in relation to other issues
that counsel did pursue), establish constitutionally deficient
performance by appellate counsel.

Cargle, 317 F.3d at 1204-05.

Although the OCCA’s order denying post-conviction relief does not

specifically state that the OCCA relied on the repudiated “regardless of merit”

standard to support its finding that Mr. McGee “has not established appellate

counsel’s performance was deficient,” R., Doc. 8, Ex. 7 at 4, its reference to

the standard in the immediately preceding sentence leads us to conclude that

the OCCA’s analysis necessarily “deviated from the controlling federal

standard . . . [and] is [therefore] not entitled to deference,” Cargle, 317 F.3d

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at 1205. Accordingly, we will not defer to the OCCA’s rejection of Mr. McGee’s

claim that he received ineffective assistance from his appellate counsel during his

certiorari appeal, and we will instead review the claim de novo.

B. Mr. McGee’s Appellate Ineffectiveness Claim.

As the Supreme Court explained in Strickland, it is not necessary “to

address both components of the [ineffective assistance of counsel] inquiry if the

defendant makes an insufficient showing on one.” 466 U.S. at 697.

In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies. The object of
an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course
should be followed.

Id. Because it is easier to dispose of Mr. McGee’s appellate ineffectiveness claim

on the ground of lack of sufficient prejudice, we will confine our analysis to the

prejudice prong of the Strickland inquiry.

As set forth above, in order to establish the requisite prejudice as a result

of being deprived of his original plea agreement, Mr. McGee must show that, but

for his appellate counsel’s unprofessional errors, there is a reasonable probability

that the result of his certiorari appeal to the OCCA and the resulting remand

to the trial court would have been different. See Cargle, 317 F.3d at 1202.

“A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. Thus, Mr. McGee must show a

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reasonable probability that the trial court, i.e., Judge Lindley, would have

sentenced him to a sentence of less than twenty years (the sentence ultimately

imposed after Mr. McGee’s trial and direct appeal to the OCCA) if his appellate

counsel had been successful in having the original plea agreement specifically

enforced and Mr. McGee resentenced on remand in accordance with that

agreement. This requires a specific showing that there is a reasonable probability

that Judge Lindley would have imposed a sentence of less than twenty years if he

had been presented with the opportunity to resentence Mr. McGee on the four

drug counts with no prior felony enhancers and thus a sentencing range of two

years to life on each count.

As set forth above, the prejudice inquiry is complicated by the intervening

amendment to Oklahoma’s prior felony enhancement statute and by the fact that it

is unclear which version of the enhancement statute Judge Lindley was applying

when he sentenced Mr. McGee to four thirty-year concurrent sentences in January

2002. Most importantly, it is unclear whether Judge Lindley was applying the

pre-July 1, 2001, version of the statute, which would have provided a sentencing

range of twenty years to life for Mr. McGee, or the post-July 1, 2001, version of

the statute, which would have provided a sentencing range of six years to life.

Consequently, we will perform a prejudice analysis under both versions of the

statute.

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 We conclude that Mr. McGee has failed to show a reasonable probability

that Judge Lindley would have sentenced him to a term of imprisonment of less

than twenty years if the plea agreement had been specifically enforced. First,

assuming that Judge Lindley was applying the post-July 2001 version of the

enhancement statute when he sentenced Mr. McGee to four thirty-year concurrent

sentences, we do not believe that Judge Lindley would have imposed shorter

sentences if the minimum sentence on each of the four counts was reduced from

six years to two years. In fact, Judge Lindley’s decision to impose enhanced

sentences that were twenty-four years above the six-year minimum belies any

such possibility. Further, we reject Mr. McGee’s argument that he can show

prejudice as a result of being deprived of his plea agreement because:

(1) Judge Lindley in effect sentenced him to seven and one half years on each of

the four enhanced counts when he imposed four thirty-year concurrent sentences;

and (2) Judge Lindley would have reduced each of the sentences by two thirds if

he had been presented with the opportunity to resentence Mr. McGee with a

two-year minimum sentence instead of a six-year minimum sentence. See Aplt.

Second Supp. Br. at 13-14. Simply put, Judge Lindley sentenced Mr. McGee to

four indivisible thirty-year sentences, and the fact that he ran the sentences

concurrently does not assist Mr. McGee in showing the requisite prejudice under

Strickland. Nor is there any indication in the trial court record that Judge Lindley

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based his sentences on any sort of ratio or correlation between the unenhanced

minimum sentence and the enhanced minimum sentence.

Second, assuming that Judge Lindley was applying the pre-July 2001

version of the enhancement statute when he sentenced Mr. McGee to four

thirty-year concurrent sentences, we do not believe that having the minimum

sentence reduced from twenty years to two years would have made any difference

in the sentences that Judge Lindley imposed. Although this is a closer question

given the larger difference between the unenhanced and enhanced minimum

sentences, we nonetheless conclude that a finding of no prejudice is required by

our published decision in Shaw v. Johnson, 786 F.2d 993 (10th Cir. 1986), and

is further supported by our unpublished decision in McCormack v. Jones,

248 F. App’x 29 (10th Cir. 2007).

In Shaw, an Oklahoma state prisoner brought a habeas action under

28 U.S.C. § 2254, arguing that “the Oklahoma court of criminal appeals

unconstitutionally denied [him] of his right to have a jury resentence him when

that court found that the jury had been erroneously instructed as to the minimum

number of years [he] could receive [under an earlier version of Oklahoma’s prior

felony enhancement statute].” Shaw, 786 P.2d at 995; see also id. at 997 (citing

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Okla. Stat. tit. 21, § 51(A) (1981)). In a thorough and extensive discussion that is

directly on point for purposes of this appeal, we rejected the prisoner’s argument.

After noting that Shaw was found guilty and sentenced to life imprisonment under

an enhancement statute that both defense and government counsel believed

required a minimum sentence of twenty years, we concluded as follows:

It later developed that the trial court, as well as all of counsel,
were laboring under a misapprehension as to the minimum sentence
which could be imposed if the jury found that Shaw had suffered one
prior felony conviction. Instead of being a twenty-year minimum, as
the jury was instructed, the actual minimum then permitted by statute
was ten years. . . . Shaw, in this federal habeas proceeding, asserts
that this error in the sentencing jury instruction is constitutional
error. He argues that under the circumstances, the Oklahoma Court
of Criminal Appeals should have remanded the case to the trial court
for a new resentencing trial where the jury would be properly
instructed as to the correct minimum sentence which could be
imposed, i.e., ten years and not twenty.

....

In [this] case, it is unlikely that the sentencing error had any effect
on Shaw’s sentence. The jury was instructed that the range of
punishment which could be imposed was from twenty years to life.
The jury rejected the argument of defense counsel that they give
Shaw a twenty-year sentence, and, instead, imposed the maximum
sentence allowable, i.e., life. It is pure speculation that the jury
would have imposed something less than life imprisonment had it
been properly instructed that the minimum possible sentence was ten
years, and not twenty. . . . See Hill v. Estelle, 653 F.2d 202, 205
(5th Cir. [1981]) . . . (error in minimum possible sentence did not
[require resentencing] when actual sentence given was large enough
to show that error did not prejudice defendant).

Shaw, 786 F.2d at 996-98; see also Hill, 653 F.2d at 205 (noting that “[i]t would

be an entirely different case if the judge had assessed [Hill’s] punishment at or

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near the [incorrect] minimum [of] five years . . ., because then Hill might have

received a sentence at or near the [correct] minimum [of] two years [if he had

been resentenced under the correct sentencing range], and thus his argument to

prejudice would have been substantial”).

Although Shaw involved a jury’s sentencing decision, while this case

involves a trial judge’s sentencing decision on a guilty plea, Shaw recognized a

general principle that applies with full force and effect here, i.e., a defendant is

not prejudiced by the use of an incorrect minimum sentence when the sentence

imposed is within the correct sentencing range and is substantially in excess of

the incorrect minimum sentence. Accord McCormack, 248 F. App’x at 34

(applying earlier version of Oklahoma’s prior felony enhancement statute and

holding that a prisoner challenging his enhanced sentence could not show

prejudice under Strickland where “the jury imposed a sentence . . . far above the

[mistakenly] instructed minimum of twenty years, [and] it [was thus] unlikely that

a [corrected] minimum of ten years would have led them to reduce the eighty

years imposed”).

In this case, of course, Judge Lindley did not impose the maximum

sentence of life imprisonment like the jury in Shaw. Nonetheless, assuming that

Judge Lindley was applying the pre-July 2001 version of the enhancement statute,

the thirty-year sentences that he imposed exceeded the incorrect minimum

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sentence (i.e., twenty years) by ten years, a substantial upward departure in

our opinion. 5 As a result, as in Shaw, it is pure speculation to say that

Judge Lindley would have imposed a sentence of less than twenty years if he had

been applying a two years to life sentencing range instead of a twenty years to life

sentencing range.

In sum, Mr. McGee has failed to show a reasonable probability that he

would have received a sentence of less than twenty years if Judge Lindley had

resentenced him without the prior felony enhancers. Accordingly, Mr. McGee has

failed to satisfy the prejudice prong of Strickland, and we affirm the denial of

habeas relief on his claim of ineffective assistance of appellate counsel.

C. Mr. McGee’s Challenges to the Withdrawal of Plea Hearing.

As noted above, Mr. McGee did not raise his challenges to the

withdrawal of plea hearing that was held in the trial court on August 27, 2003, in

any of the state court proceedings. As a result, no record was developed on the

questions of whether Mr. McGee’s not guilty plea was voluntary and whether he

was represented by counsel at the hearing. We therefore cannot decide these

issues based on the existing state court record. Indeed, Mr. McGee’s current

counsel conceded this point during the supplemental briefing in this appeal, as

5
Moreover, if Judge Lindley was applying the post-July 2001 version of the
enhancement statute, then he imposed a sentence that exceeded the incorrect
minimum sentence by twenty-four years, and Shaw applies with even more force.

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counsel candidly acknowledged that a remand for further development of the state

court record is required to resolve these issues. 6 See Aplt. First Supp. Br. at 5-6

(“The record does not adequately reflect that Mr. McGee was represented by

counsel at the hearing in question. At the very least, resolution of this issue

requires consideration of material not available in the record, which suggests the

necessity of reversal and remand.”); id. at 24 (“The record is insufficient to

demonstrate that the ‘withdrawals’ attributed to Mr. McGee of his guilty pleas

[were] counseled, and thus ‘voluntary.’ Definitive resolution of that issue would

require reversal and remand as it would require additional record material . . . .”).

As we understand defense counsel’s statements, counsel is in effect asking

this court to remand this matter to the district court for an evidentiary hearing on

the voluntariness and presence of counsel issues, so that a sufficient record can be

developed on those issues and the merits of the issues can be decided. This we

cannot do, however, because 28 U.S.C. § 2254(e)(2) bars such a course of action

at this stage of these proceedings.

6
In the pro se brief that he submitted to this court before his current counsel
was appointed to represent him, Mr. McGee likewise acknowledged the
deficiencies in the state court record with regard to the voluntariness and presence
of counsel issues. See Aplt. Pro Se Br. at 19 (filed January 10, 2008). In fact,
Mr. McGee specifically argued that the district court should have held an
evidentiary hearing in order to develop an adequate record. Id. Moreover,
foreshadowing his counsel’s present stance, Mr. McGee requested that this court
now grant him an evidentiary hearing. Id. at 23.

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 Section 2254(e)(2) provides that if a habeas petitioner “has failed to

develop the factual basis of a claim in the State court proceedings,” then a federal

district court shall not hold an evidentiary hearing on the claim unless the claim is

based on: “(i) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable; or (ii) a

factual predicate that could not have been previously discovered through the

exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A)(i) and (ii). A prisoner has

“failed to develop” a claim in state court proceedings if “there is lack of

diligence, or some greater fault, attributable to the prisoner or the prisoner’s

counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence . . . depends

upon whether the prisoner made a reasonable attempt, in light of the information

available at the time, to investigate and pursue claims in state court.” Id. at 435.

Consistent with these principles, we easily conclude that Mr. McGee failed

to exercise the required diligence to develop a record in the state court

proceedings on the voluntariness and presence of counsel issues. To begin with,

neither Mr. McGee’s appellate counsel in his certiorari and direct appeals to the

OCCA nor Mr. McGee himself in his pro se post-conviction proceeding ever

raised any sort of challenge to the withdrawal of plea hearing that was held in the

trial court on August 27, 2003.

Further, there is no indication in the record that the trial court or the OCCA

did anything to prevent Mr. McGee from developing a record on the voluntariness

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and presence of counsel claims. It is also clear that Mr. McGee cannot satisfy

either of the stringent exceptions in § 2254(e)(2) to excuse his lack of diligence,

as he is not relying on any new rule of constitutional law, and he has no basis for

asserting that he was unable to discover the factual predicates for the

voluntariness and presence of counsel claims. 7 To the contrary, since he himself

attended the withdrawal of plea hearing, Mr. McGee knew precisely what

transpired at the hearing and was thus immediately aware of the factual predicates

for his claims, and there is simply no excuse for his failure to assert the

voluntariness and presence of counsel claims in the state court proceedings.

Consequently, § 2254(e)(2) prohibits us from remanding the claims to the district

court for an evidentiary hearing, and, given the deficient record before us, we

must deny relief on the claims.

The judgment of the district court is AFFIRMED.

7
In fact, Mr. McGee informed his direct appeal counsel of the alleged lack
of defense counsel at the hearing that was held before the trial court on August
27, 2003, in a letter that he apparently sent to counsel in January 2005. See R.,
Doc. 16, Ex. 1 at 2. Counsel did not assert a claim based on this issue in Mr.
McGee’s direct appeal, however, id., Doc. 8, Ex. 1, and Mr. McGee also failed to
assert such a claim as part of the ineffective assistance of appellate counsel
claims that he pursued in his pro se post-conviction proceeding, id., Exs. 4 and 6.

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