* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

.

UNITED STATES COURT OF APPEALS Filed 1/6/97 FOR THE TENTH CIRCUIT

MARKIE K. GARNER,

Petitioner-Appellant,

v. R. MICHAEL CODY,

Respondent-Appellee. No. 95-6353 (D.C. No. CIV-95-372-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner appeals the denial of his request for ha beas relief pursuant to 28 U.S.C. § 2254. In August 1993, petitioner pled gui lty in Oklahoma state court to auto theft, attempted escape, and destruction of pu blic property, all after former conviction of a felony. He did not seek to withdraw his guilty plea or take a direct appeal within the statutory time period, buthe later filed a habeas petition in state court. Petitioner argued in his state pet ition that his convictions for attempted escape and destruction of public propertyarose out of the same transaction and, therefore, violated double jeopardy; that the prior convictions used to enhance his sentence were not shown to be f inal; and that his trial counsel was ineffective because he did not ask petitioner i f he wanted to withdraw his guilty plea within ten days and did not raise the d ouble jeopardy issue. See R. Vol. I, Doc. 13, Ex. B at 2. The trial court denie d petitioner’s claims on the merits. On appeal, the Oklahoma Court of Criminal Appeals determined that petitioner had not established that he was denied a n appeal through no fault of his own. The court concluded, therefore, that petition er had procedurally defaulted his claims by failing to take a direct appeal. Petitioner then brought the present federal habeas action, in which he asserted essentially the same claims that he raised in state court. Respondent argued that petitioner’s claims were procedurally b arred due to his failure to take a direct appeal. The district court, relying on th is court’s unpublished order and1 “The [adequate and independent state ground] doctri ne applies to bar

federal habeas when a state court declined to addre ss a prisoner’s federal claims because the prisoner had failed to meet a state pro cedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman v. Thompson , 501 U.S. 722, 729-30 (1991). If a prisoner is in custody pursuant to a state court judgment that rests on an adequate and independent state ground, such as procedural defaul t, then a federal court will not address the merits of the prisoner’s federal claims , see id. at 730, 736, “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrat e that failure to consider the claims will result in a fundamental miscarriage of justice,” id. at 750. -3- judgment in Thompson v. Champion , No. 93-6325, 1994 WL 589458, at **1 (10th Cir. Oct. 20, 1994), held that Oklahoma’s procedura l rule barring petitioner’s claim for ineffective assistance of counsel did notconstitute an “adequate” state ground. 1 Therefore, the district court held petitioner had not defaulted his ineffective assistance claim. The court considered the merits of petitioner’s ineffective assistance claim, which included an ass essment of petitioner’s double jeopardy and sentencing enhancement claims, and, fi nding no merit, denied the habeas petition. On appeal, respondent contends that we should recog nize the procedural bar applied by the Oklahoma Court of Criminal Appea ls and affirm the denial of relief on that basis. Respondent bases his argumenton the following amendment to 28 U.S.C. § 2254: An application for a writ of habeas corpus on behal f of a person in custody pursuant to a judgment of a State court sha ll not be granted-4-

with respect to any claim that was adjudicated on t he merits in State court proceedings unless the adjudication of the cl aim- (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. Antiterrorism and Effective Death Penalty Act of 19 96 (AEDPA), Pub. L. No. 104-132, sec. 104(3), § 2254(d), 110 Stat. 1214, 12 19. Respondent argues that we should apply this new standard of review retroactively and further contends that the new sta ndard requires us to give deference to Oklahoma’s determination that petition er’s claims were barred, unless we conclude that Oklahoma’s decision was a r esult of either an unreasonable application of federal law as determin ed by the Supreme Court or an unreasonable determination of the facts based on th e state court record. Respondent then concludes that, because the Supreme Court has not deemed Oklahoma’s procedural rule unreasonable, and becaus e the record supports the Oklahoma court’s determination that petitioner did not establish that he failed to take a direct appeal through no fault of his own, w e must deem petitioner’s claims procedurally barred. Respondent’s argument has one fundamental flaw: th e standard of review under 28 U.S.C. § 2254 (both before and after AEDPA ), specifically relates to2 “A state court finding of procedural default is ind ependent if it is separate

and distinct from federal law.” Maes v. Thomas , 46 F.3d 979, 985 (10th Cir.), cert. denied , 115 S. Ct. 1972 (1995). A finding of procedural default is considered “adequate” if it has been applied evenha ndedly “‘in the vast majority’ of cases.” Id. at 986 (quoting Andrews v. Deland , 943 F.2d 1162, 1190 (10th Cir. 1991), cert. denied , 502 U.S. 1110 (1992)). -5- claims that were adjudicated on the merits in state court, and does not affect the adequacy or independence of a state court’s procedu ral bar. 2 The Oklahoma Court of Criminal Appeals made only one merits dete rmination: that petitioner did not fail to take an appeal through no fault of his own. The district court did not refuse to apply the procedural bar based on its review of this determination, however. Rather, it refused to apply the bar based on its own determination that the state procedural rule did not constitute an “ad equate” state ground that would bar federal habeas review. In Thompson , 1994 WL 589458, at **1, a panel of this court con cluded that Oklahoma’s rule requiring ineffective assistance cl aims to be brought on direct appeal was “still evolving,” and, therefore, did “n ot qualify as a ‘strictly or regularly followed’ state practice.” We need not d ecide whether this view of Oklahoma’s practice is still accurate, see, e.g. , Berget v. State , 907 P.2d 1078, 1084 (Okla. Crim. App. 1995)(“This Court’s preferre d method still requires such a challenge [to the assistance of trial counsel] to be raised on direct appeal, not through a collateral attack, or it is waived.”), be cause we have declared-6-

Oklahoma’s procedural rule inadequate, when appliedto claims of ineffective assistance of trial counsel, on another basis, see Brecheen v. Reynolds , 41 F.3d 1343, 1363-64 (10th Cir. 1994), cert. denied , 115 S. Ct. 2564 (1995). In Brecheen , we noted that ineffective assistance of trial cou nsel claims will frequently need additional factual developmentbeyond that set forth in the appellate record and, therefore, collateral proceed ings will often be the only effective forum in which a defendant can assert suc h a claim. Id. at 1363-64. Therefore, when the claim at issue is one for ineff ective assistance of trial counsel, the general rule that claims not raised attrial or on direct appeal will preclude federal habeas review “must give way becau se of countervailing concerns unique to ineffective assistance claims.” Id. at 1363. The practical effect of this ruling [by the Oklahom a court] is to force [the petitioner] either to raise this claim on dire ct appeal, with new counsel but without the benefit of additional fact- finding, or have the claim forfeited under state law. This Hobson’s cho ice cannot constitute an adequate state ground under the contr olling case law because it deprives [the petitioner] of any meaning ful review of his ineffective assistance claim. Id. at 1364. Therefore, based on our holding in Brecheen , the district court properly concluded that petitioner’s claim of ineffective as sistance of trial counsel was not barred by his failure to raise it on direct appeal. See also Brewer v. Reynolds , 51 F.3d 1519, 1522 (10th Cir. 1995)(“[T]he failure to raise a claim of ineffective-7-

assistance of counsel on direct review will not pre clude federal review of that claim.”), cert. denied , 116 S. Ct. 936 (1996). Petitioner’s double jeopa rdy and sentence enhancement claims would still be barred b y his failure to take a direct appeal, however, unless he can demonstrate either c ause for his default and actual prejudice, or that failure to review those claims w ould result in a fundamental miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). We turn, then, to the merits of petitioner’s ineffe ctive assistance claim, which, if established, could constitute cause for h is procedural default, id. at 754. Petitioner alleges that his trial counsel was const itutionally ineffective because (1) he did not contact petitioner during the ten-day period following his guilty plea, (2) he did not ask petitioner whether he want ed to withdraw his plea and file an appeal, and (3) he did not advise petitioner of his double jeopardy claim. “An attorney has no absolute duty in every case to advi se a defendant of his limited right to appeal after a guilty plea. Failure to no tify the defendant of this limited right is not in itself ineffective assistance.” Laycock v. New Mexico , 880 F.2d 1184, 1187-88 (10th Cir. 1989)(citations omitted). Counsel has a duty to inform the defendant of the limited right to appeal from aguilty plea only “if the defendant inquires about an appeal right,” or “[i]f a claim of error is made on constitutional grounds, which could result in setti ng aside the plea.” Id. at 1188. In the latter situation, counsel has a duty to info rm the defendant of his appeal-8-

rights if “counsel either knows or should have learned of his client’s claim or of the relevant facts giving rise to that claim.” Har diman v. Reynolds , 971 F.2d 500, 506 (10th Cir. 1992)(quotation omitted). Here, the record reflects that the trial court advi sed petitioner of his right to withdraw his guilty plea and file an appeal within ten days of the plea. R. Vol. I, Doc. 18, Ex. C at 13. The trial court also advised petitioner that he had the right to postpone transportation to the penitentiary, and remain in the local jail, during those ten days, but petitioner waived this right. Id. The record does not reflect that petitioner made any attempt to contact his cou nsel to inquire about an appeal, nor, as the Oklahoma Court of Appeals noted, does it reflect that petitioner had any desire to withdraw his plea or file an appeal w ithin the statutory ten-day period. Further, because we agree with the distric t court that petitioner’s double jeopardy claim is without merit, petitioner has notdemonstrated that his counsel knew or should have known of the existence of const itutional error that could have resulted in the setting aside of petitioner’s guilty plea. Therefore, we conclude that counsel’s assistance was not constitutionally ineffective. Our conclusion on the merits of petitioner’s ineffe ctive assistance claim leads to the further conclusion that petitioner has not demonstrated cause for his procedural default of his double jeopardy and sente ncing enhancement claims. Therefore, these claims will be barred unless petit ioner can demonstrate that-9-

barring those claims would result in a fundamental miscarriage of justice. In the noncapital context, this requires a showing of actu al innocence, see United States v. Richards , 5 F.3d 1369, 1371 (10th Cir. 1993)(citing Sawyer v. Whitley , 505 U.S. 333, 339-41 (1992)), which petitioner has not alleged. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

William F. Downes District Judge