*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ WAYNE CURTIS RIDGEWAY, Petitioner-Appellant,

v. STEVE KAISER, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 99-7018 (E.D. Okla.) (D.Ct. No. 97-CV-595-S)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Appellant Wayne Curtis Ridgeway, a state inmate app earing pro se , appeals the district court’s decision dismissing his habeas corpus petition pursuant to 28 U.S.C. § 2254 and denying his request for a certifi cate of appealability. We deny Mr. Ridgeway’s request for a certificate of appealability and dismiss his appeal.

Mr. Ridgeway pled guilty to attempted first degree rape and forcible oral sodomy after former conviction of two or more felon ies. The state trial court sentenced him to two consecutive terms of imprisonm ent consisting of eighty-one years for the rape and twenty years for the sodomy charge. Mr. Ridgeway subsequently filed a motion to withdraw his guilty plea contending it was not knowing and voluntary. The state trial court denie d the motion, and on appeal, the Court of Criminal Appeals for the State of Oklahoma denied Mr. Ridgeway’s petition for writ of certiorari.

Thereafter, Mr. Ridgeway filed a pro se application for state postconviction relief claiming the state trial court er red in enhancing his sentences for convictions arising out of the same transaction or occurrence. He claimed the enhancement resulted in the court wrongfully senten cing him under the habitual criminal statute, Okla. Stat. tit. 21, § 51(b). In attempting to overcome the procedural bar in raising these new claims, Mr. Rid geway suggested his trial and-3-

appellate counsel were ineffective because they fai led to raise these issues on direct appeal. The trial court denied the applicat ion, and the Oklahoma Court of Criminal Appeals affirmed finding Mr. Ridgeway fail ed to show cause why either he or his counsel were prevented from constructing or raising these claims on direct appeal. In addition, the court concluded th e record did not show deficient performance by his appellate counsel in failing to raise these claims, that Mr. Ridgeway was somehow improperly sentenced as an hab itual offender, or that he received a sentence in excess of the law.

In his federal habeas corpus petition, Mr. Ridgewayclaimed: (1) the state trial court improperly enhanced his sentences with convictions arising out of the same transaction or occurrence; (2) the state trial court denied him due process of law because it sentenced him under the habitual off ender statute; (3) his state appellate counsel was ineffective because he failed to raise the ineffectiveness of his trial counsel in not challenging the use of his prior convictions; and (4) he was never informed of the actual minimum or maximum ran ge of punishment for the crimes at issue.

The district court assigned the petition to a feder al magistrate judge who recommended dismissal of Mr. Ridgeway’s petition. The magistrate judge-4-

determined Mr. Ridgeway failed to show entitlement to federal habeas relief on the issues involving the use of his prior convictio ns and the habitual offender statute in determining his sentence. With respect to Mr. Ridgeway’s claim of ineffective assistance of counsel, the magistrate j udge found that the Oklahoma Court of Criminal Appeals, after analyzing the clai m under the correct federal standards, properly found no merit to the claim. F inally, after reviewing the record, the magistrate judge determined the court a dvised Mr. Ridgeway of the minimum and maximum sentences when he entered his p lea, so his plea was voluntary, knowing and intelligent. The district c ourt adopted the magistrate judge’s findings and recommendations and dismissed the petition.

On appeal, Mr. Ridgeway raises the same issues pres ented to and addressed by the district court. He also claims insufficientevidence supports the magistrate judge’s findings and conclusions, and for the firsttime on appeal, alleges his innocence to the crimes surrounding his three priorfelony convictions used to enhance his sentence.

We review de novo both the legal bases for the district court’s dism issal of Mr. Ridgeway’s § 2254 petition, s ee Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998), and Mr. Ridgeway’s ineffect ive-5-

assistance of counsel claim. United States v. Prows , 118 F.3d 686, 691 (10th Cir 1997). We review the district court’s factual find ings for clear error, presume the state court’s factual findings are correct, and aff ord deference to the state court’s construction of state law. Jackson , 143 F.3d at 1317. In considering Mr. Ridgeway’s appeal, his pro se pleadings must be construed liberally and held to a less stringent standard than formal pleadings draft ed by lawyers. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v . Kerner , 404 U.S. 519, 520-21 (1972)).

With these standards in mind, we begin by noting th at Mr. Ridgeway failed to present the issues involving the use of his prio r convictions and the habitual offender statute on direct appeal to the Oklahoma C ourt of Criminal Appeals. Under Oklahoma law, if a prisoner bypasses an issue on direct appeal, he may not assert that issue in application for state post-con viction relief, unless “sufficient reason” prevented assertion of the error or it was caused by a procedural error of counsel. See Jones v. State , 704 P.2d 1138, 1140 (Okla. Crim. App. 1985). In this case, the Oklahoma Court of Criminal Appeals d etermined Mr. Ridgeway failed to show a sufficient reason for the procedur al error or that his appellate counsel rendered deficient performance by failing t o raise these claims on direct appeal. Thus, the state appeals court concluded Mr . Ridgeway procedurally-6-

defaulted his claims as to the use of his prior con victions and the habitual offender statute.

Despite his procedural default at the state level, Mr. Ridgeway in his federal appeal renews his argument that the state t rial court improperly used his prior convictions and the habitual offender statute s in determining his sentencing. In his attempt to overcome the procedural bar on hi s defaulted state claim, Mr. Ridgeway again suggests his default resulted from h is appellate counsel’s failure to raise the prior convictions and habitual offende r claims on direct appeal. The general rule is that failure to raise a claim at tr ial or on direct appeal will preclude federal habeas corpus review of the merits of the c laim absent a showing of either cause and prejudice, or a fundamental miscarriage o f justice. Brecheen v. Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994), cert. denied, 515 U.S. 1135 (1995). However, when the underlying claim is inef fective assistance of counsel, this general rule no longer applies and federal hab eas review may occur. Id. In order for Mr. Ridgeway to succeed on this ineffecti ve assistance of counsel claim, he must show his attorney’s performance was deficie nt, and that the deficient performance prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984).-7-

Even construing Mr. Ridgeway’s pro se pleadings liberally, a review of the record establishes he has not shown the requisite c ause and prejudice, or ineffective assistance of counsel, necessary to ove rcome the procedural bar surrounding his claim. While he premises his defau lt on ineffective assistance of appellate counsel, the record shows his counsel’s p erformance was not deficient. Specifically, his appellate counsel explained he di d not raise the prior conviction and habitual offender statute issues on direct appe al because Rule 4.2(b) of the Rules of the Oklahoma Court of Criminal Appeals man dates that no matter may be raised in the petition for writ of certiorari un less the same issues were raised in the application to withdraw the guilty plea. Becau se Mr. Ridgeway’s application to withdraw the plea did not raise these issues, hi s appellate counsel reasonably believed he was restricted from raising them on dir ect appeal, unless he supplemented the record. Our record shows appellat e counsel explained to Mr. Ridgeway the possibility of pursuing the prior conv iction issue by supplementing the record with certified copies of those convictio ns, but that Mr. Ridgeway failed to assist counsel in pursuing this course of action . Thus, Mr. Ridgeway fails to establish that ineffective assistance of appellate counsel resulted in his default.

Mr. Ridgeway’s conclusory and unsupported assertionthat he is innocent of the prior convictions on which his sentence is base d is also insufficient to-8-

overcome his procedural default, or to undermine ou r confidence in his guilty plea to the instant convictions. See Schlup v. Delo , 513 U.S. 298, 316 (1995). The fact Mr. Ridgeway claims his innocence as to his pr ior convictions for the first time on appeal, coupled with his failure to allege his innocence as to the charges in his instant convictions, leads us to conclude th at he has not made a colorable showing of innocence necessary under the fundament al miscarriage of justice standard. Because Mr. Ridgeway has not shown any o ther reason for failing to raise these issues on direct appeal, the district c ourt properly concluded that he failed to present an argument supporting federal habeas relief.

Mr. Ridgeway also contends his appellate counsel wa s ineffective because he failed to raise, on direct appeal, the issue of his trial counsel’s ineffectiveness in not challenging the use of his prior convictions . However, it was not unreasonable for Mr. Ridgeway’s appellate counsel t o omit such a claim in the direct appeal involving Mr. Ridgeway’s motion to wi thdraw his guilty plea, because the motion centered on Mr. Ridgeway’s alleg ed uninformed guilty plea and not on ineffective assistance of counsel. More over, as noted, appellate counsel attempted to assist Mr. Ridgeway in supplem enting the record with his prior convictions in order to ultimately initiate aproper appeal of those issues. Thus, we do not consider his appellate counsel’s pe rformance deficient.-9-

Finally, we conclude Mr. Ridgeway’s guilty plea was not involuntary, unknowing or unintelligent. The transcripts of the plea and sentencing hearings clearly establish Mr. Ridgeway knew, prior to plea ding guilty, that the minimum sentence was twenty years and that no maximum penal ty existed.

In order to obtain a certificate of appealability, Mr. Ridgeway must make “‘a substantial showing of the denial of a constitutional right.’” Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996) (quoting 28 U.S.C . § 2253), cert. denied, 519 U.S. 1081 (1997), and overruled on other grounds by United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct 1375 (1998). Mr. Ridgeway fails to make such a showing.

For these reasons, we deny Mr. Ridgeway’s request f or a certificate of appealability, and DISMISS his appeal.
Entered by the Court: WADE BRORBY United States Circuit Judge