FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 22, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MILTON THOMAS WALTON,
Petitioner - Appellant,
v. No. 09-5119
(D.C. No. 4:06-CV-00204-CVE-FHM)
MR. FRANKLIN, Warden, (N.D. Okla.)
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Petitioner-Appellant Milton T. Walton, appearing pro se, seeks a certificate
of appealability (“COA”) allowing him to appeal the district court’s order denying
his petition for a writ of habeas corpus with prejudice. 28 U.S.C. § 2254. To
obtain a COA, Mr. Walton must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). Mr. Walton has not made the requisite showing, and
therefore we deny a COA and dismiss the appeal.
Mr. Walton is currently serving a sentence of 50 years in prison for
attempted robbery by force after conviction of two or more prior felonies and
misdemeanor obstructing a police officer. 1 R. 6, 18, 57. An Oklahoma state
court convicted him after a jury trial. 1 R. 57. Mr. Walton directly appealed his
conviction to the Oklahoma Court of Criminal Appeals (OCCA), 1 R. 50-90, and
that court affirmed, 1 R. 117-20. The state district court subsequently denied his
application for post-conviction relief, and the OCCA affirmed. 1 R. 121-30. Mr.
Walton filed his federal petition for a writ of habeas corpus on April 18, 2006. 1
R. 5.
In his federal habeas petition, Mr. Walton raised three grounds of error: (1)
tainted identification; (2) prosecutorial misconduct; and (3) ineffective assistance
of counsel by failure to inform Petitioner of an offered plea and failure to raise
the issue of illegal arrest. 1 R. 9-11. Nearly three years later, Mr. Walton filed a
motion to amend his original petition to include two claims: that the Oklahoma
procedural bar was improper, and that the state district court lacked jurisdiction to
sentence him as an habitual criminal because the original information did not
charge him as an habitual criminal. 1 R. 279-85. In its order denying Mr.
Walton’s habeas petition, the district court first denied his motion to amend
because it did not relate back to his original petition and was therefore barred by
AEDPA’s one-year statute of limitations. 1 R. 302-04; see 28 U.S.C. § 2244(d)
(one-year statute of limitations applies to state prisoners’ habeas petitions). The
district court denied relief on Mr. Walton’s first two claims (tainted identification
and prosecutorial misconduct) on the merits. 1 R. 305-14. The district court held
that Mr. Walton’s third claim (ineffective assistance of counsel) was procedurally
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barred because the OCCA did not adjudicate it on the merits. 1 R. 314-20.
Mr. Walton’s petition for a COA raises a set of issues somewhat different
from those presented in his original § 2254 petition. He has separated his
ineffective assistance of counsel claim into two claims on appeal: one based on
his pretrial counsel’s failure to inform him of an offered plea, Pet. Br. at 3-8, and
another based on his pretrial counsel’s failure to raise the issue of an illegal
arrest, Pet. Br. at 9-11. He also presents one of the claims presented to the
district court in his time-barred motion to amend: the state district court’s lack of
jurisdiction to sentence him as an habitual offender because the original
information failed to charge him as such. Pet. Br. at 8-9.
We reject Mr. Walton’s claim that the state district court lacked
jurisdiction. First, Mr. Walton does not challenge the district court’s denial of his
motion to amend. Therefore, we conclude that he has abandoned any challenge
on the grounds that the district court misapplied AEDPA’s statute of limitations.
See Fairchild v. Workman, 579 F.3d 1134, 1146 (10th Cir. 2009). Second, we
will not consider claims that the petitioner did not present to the district court in
his habeas petition. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004);
United States v. Cook, 997 F.2d 1312, 1316 & n.4 (10th Cir. 1993). Our waiver
rule also applies to claims submitted after the expiration of the AEDPA time bar.
Third, even if we were to construe Mr. Walton’s repeated presentation of the
claim as a challenge to the application of the AEDPA time bar, we conclude that
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the district court appropriately determined that his proposed amendment did not
relate back to his original petition. Without any grounds for equitable tolling, we
are bound by AEDPA’s time bar.
Mr. Walton’s claims for relief based on ineffective assistance of counsel
are procedurally barred because the OCCA did not adjudicate them on the merits.
Mr. Walton does not challenge the district court’s determination that the OCCA
did not adjudicate these claims on the merits on direct appeal or in proceedings
for post-conviction relief. (In post-conviction proceedings, the OCCA held that
Mr. Walton’s ineffective assistance claims were procedurally barred because he
failed to raise them on direct appeal, 1 R. 315-16.) Rather, he claims that he
should have enjoyed one of the exceptions to Oklahoma’s procedural bar that we
recognized in English v. Cody, 146 F.3d 1257 (10th Cir. 1998). “[T]he Oklahoma
bar will apply in those limited cases meeting the following two conditions: trial
and appellate counsel differ; and the ineffectiveness claim can be resolved upon
the trial record alone.” Id. at 1264. Therefore, the procedural bar does not apply
where trial and appellate counsel are the same, or the ineffectiveness claim cannot
be resolved on the trial record alone. Mr. Walton acknowledges that his trial and
appellate counsel differed. Pet. Br. at 6. Mr. Walton does not dispute that his
illegal arrest/ineffective assistance claim can be resolved on the trial record alone.
Therefore, this claim fails as procedurally barred.
Mr. Walton does, however, dispute that his plea offer/ineffective assistance
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claim can be resolved upon the trial record. Pet. Br. at 6. English’s second
condition requires that the claim can be resolved on the trial record alone or that
there exist “a sufficient procedural mechanism on direct appeal whereby
defendants can adequately develop the factual basis of their ineffective assistance
claims.” English, 146 F.3d at 1263. As the OCCA and the district court
observed, Mr. Walton had already developed the factual basis of this claim before
his direct appeal. 1 R. 129, 317-18. That is, Mr. Walton admits that he knew of
the plea offer during his direct appeal. Pet. Br. at 7. Because both conditions of
English are satisfied, Oklahoma’s procedural bar applies to his plea
offer/ineffective assistance claim as well.
In addition, Mr. Walton does not make the requisite showing of cause and
prejudice or a fundamental miscarriage of justice to avoid the procedural bar. Mr.
Walton does not allege actual innocence, as required to demonstrate a
fundamental miscarriage of justice. See Beavers v. Saffle, 216 F.3d 918, 923
(10th Cir. 2000). Mr. Walton blames his appellate counsel for his failure to raise
on direct appeal his pretrial counsel’s failure to inform him of the plea offer,
alleging that he informed his appellate counsel of the issue. Pet. Br. at 7.
However, Mr. Walton cannot assert his appellate counsel’s ineffective assistance
as cause for his pretrial counsel’s ineffective assistance if he has procedurally
defaulted on that claim and not shown cause and prejudice for the default.
Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Murray v. Carrier, 477 U.S. 478,
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489 (1986). Because Mr. Walton failed to present a claim of ineffective
assistance of appellate counsel in his state post-conviction proceedings, he has
procedurally defaulted on it. He alleges no cause and prejudice for this default.
Accordingly, Mr. Walton has failed to make out adequate cause for the procedural
default of his ineffective assistance of pretrial counsel claim. Without a showing
of cause and prejudice or a fundamental miscarriage of justice to overcome the
procedural bar, Mr. Walton’s plea offer/ineffective assistance claim fails.
We DENY a COA and all other pending motions and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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