* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l 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 This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 

### JAN 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID REDWINE, Petitioner-Appellant, v. H.N. “SONNY” SCOTT, Warden, Respondent-Appellee,
COMANCHE COUNTY DISTRICT COURT, Respondent. No. 98-6278 (D.C. No. 97-CV-359-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

Proceeding pro se , David Redwine seeks a certificate of appealability to challenge the district court’s denial of his applic ation for a writ of habeas corpus,- 2 -

and also moves to proceed in forma pauperis (“IFP”). For the reasons set forth below, we deny both requests. On January 31, 1995, Redwine pled guilty in the Dis trict Court of Comanche County, Oklahoma, to robbery in the first degree by force and fear, and was sentenced to twenty-five years’ imprisonment. (See R.# 21, Mag. Rep at 1.) Redwine failed to withdraw his guilty plea within the allotted ten-day period, and otherwise failed to appeal his conviction. (See id

. at 2.) However, he subsequently filed an application for state post-co nviction relief, which was denied by the state district court. (See id. ) Redwine appealed to the Oklahoma Court of Criminal Appeals, but the court dismissed the appeal, finding it barred because Redwine failed to submit either a filing fe e or pauper’s affidavit within the required time period. (See id. ) Redwine later filed a second application for post-conviction relief. The state district court d enied the petition as procedurally barred, and the Oklahoma Court of Criminal Appeals affirmed, stating in pertinent part: The [post-conviction] provisions of 22 O.S. 1991, § 1080, are not a substitute for a direct appeal. Permitting one to by-pass or waive a timely and direct appeal and proceed under 22 O.S. 1991, § 1080, without supplying sufficient reason erodes the limi tations and undermines the purpose of the statutory direct appe al. Petitioner’s application fails to articulate sufficient reason e xplaining his failure to timely file a certiorari appeal . . . . (See id. at 2-3 (internal citations omitted).)- 3 -

Redwine subsequently filed an application for a wri t of habeas corpus pursuant to 28 U.S.C. § 2254 in the federal distric t court, alleging relief on the grounds that the charging Information was not verif ied by the prosecuting attorney and was not signed by a judge until he hadbeen confined for ten months. (See R.#1, Habeas Pet. at 1; R. # 21, Mag. Rep. at 1.) The district court referred the application to a magistrate judge, who recommen ded that the petition be dismissed because the procedural default noted by the Oklahoma Court of Criminal Appeals was an independent and adequate st ate ground, and because Redwine failed to demonstrate cause for the default , or to demonstrate that failure to consider his claims would result in a fundamenta l miscarriage of justice. (See id. at 3-5 (citing, inter alia , Coleman v. Thompson , 501 U.S. 722, 750 (1991) (if state procedural bar rests on independent and adequ ate state grounds, habeas review also is barred “unless the prisoner can demo nstrate cause for the default and actual prejudice as a result of the alleged vio lation of federal law, or demonstrate that failure to consider the claims wil l result in a fundamental miscarriage of justice”).) Redwine filed a timely objection to the magistrate judge’s Report and Recommendation, and in reviewing the objections the district court found that Redwine had raised additional facts not presented t o or considered by the magistrate judge. (See R.# 41, Mag. Supp. Rep. at 1, 3.) Consequently, t he- 4 -

district court remanded the matter to the magistrat e judge for a Supplemental Report and Recommendation in light of the objection s. (See R.# 31, Order at 2- 3.) The magistrate judge subsequently issued a Sup plemental Report and Recommendation, which found that the additional fac ts failed to demonstrate cause, and again recommended that the habeas petiti on be denied because Redwine’s claims were procedurally barred. (See R.# 41, Mag. Supp. Rep. at 7.) On May 22, 1998, the district court adopted the Sup plemental Report and Recommendation and denied Redwine the writ of habea s corpus. (See R.# 47 at 1.) Redwine then filed a motion for reconsideration andobjections to the Supplemental Report and Recommendation. (See id. at 1-2.) The district court treated the motion and objections together as a mot ion to vacate and concluded that no relief was warranted. (See id. at 2-3.) On July 29, 1998, the district court denied Redwine’s application for a certificate of appealability because he failed to make a “substantial showing of the denial of con stitutional right” as required by 28 U.S.C. § 2253(c)(2), and denied his motion fo r IFP status because the appeal was not taken in good faith. (See R.# 53, Order at 1-2.) In this court, Redwine renews his request for a certificate of app ealability and IFP status. Redwine devotes a good portion of his brief to alle gations of ineffective assistance of counsel, but for the most part fails to refute the specific reasons why- 5 -

the district court, adopting the magistrate judge’s findings and recommendations, held Redwine’s claims barred by Coleman v. Thompson . Although Redwine asserted ineffective assistance of counsel as one c ause for his default, the magistrate judge correctly stated that, after a gui lty plea, counsel is required to advise a defendant of his appeal right only if (1) the defendant inquires about it, or (2) a claim of error is made on constitutional g rounds which could set aside the plea and about which counsel knew or should have kn own. (See R.# 21, Mag. Rep. at 4-5 (citing Hardiman v. Reynolds , 971 F.2d 500, 506 (10th Cir. 1992); Laylock v. Mexico , 880 F.2d 1184, 1187 (10th Cir. 1989).) Although Redwine pointed to his counsel’s failure t o contact him during the ten-day period for withdrawing his guilty plea, the magistrate judge observed that Redwine “makes no allegation that he contacted his counsel about an appeal during the relevant ten-day time period,” and thus is precluded from asserting ineffective assistance of counsel under the first p rong of Laylock . (See id. at 5.) With regard to the second prong, Redwine alleged th at his counsel knew the charging Information was not verified by the trial judge during his preliminary hearing. Redwine also alleged that his appointed c ounsel informed him that he could get a plea of less than twenty years, but a “ stand-in” attorney who represented him during the plea proceeding informedhim that the government’s offer was for twenty-five years. The magistrate ju dge found these allegations- 6 -

insufficient to warrant setting aside the guilty pl ea, as a guilty plea is generally subject to collateral attack only on the ground that it was not knowingly and voluntarily entered. (See id. at 5 (citing Tollett v. Henderson , 411 U.S. 258 (1973) (guilty plea generally subject to collateral attack only on ground that it was not knowingly and voluntarily entered); Lefkowitz v . Newsome , 420 U.S. 283, 288 (1975) (generally, guilty plea intelligently an d voluntarily made bars later challenges to pretrial proceedings); see also R.# 41, Mag. Supp. Rep. at 4.) The magistrate judge noted that there was every indicat ion that Redwine knew he would receive twenty-five years under the plea barg ain and voluntarily accepted it in lieu of going to trial and facing a possible lif e sentence. (See R.# 41, Mag. Supp. Rep. at 6.) As another cause for his procedural default, Redwin e asserted that he was not provided with a transcript. The magistrate jud ge noted, however, that Redwine would be constitutionally entitled to a tra nscript only if such was necessary for the resolution of his appeal, but that a transcript was not necessary to discover any defects in the charging Information . (See id. at 6 (citing Britt v. North Carolina , 404 U.S. 226 (1971); Williams v. Oklahoma City , 395 U.S. 458, 459 (1969).) In his brief, Redwine briefly presents two facts wh ich touch upon the district court’s finding of procedural bar. First, Redwine submits an affidavit- 7 -

supporting one claim of cause for his default, name ly, that he was not provided with a transcript for an appeal. The first Report and Recommendation stated that Redwine did not seek a transcript at public expense , but Redwine swears in his affidavit that he twice moved for a transcript at p ublic expense. (See Aplt. Br., “Sworn Affidavit.”) Second, Redwine states that, d uring the seventeen days after sentencing when he remained in the county jail, he had written numerous letters to his appointed attorney, but did not receive a respo nse. (See id. at 7-8.) We reject Redwine’s claim that the lack of a transc ript could be cause for his default. The magistrate judge correctly observ ed that the lack of a transcript could not constitute cause excusing Redwine’s defau lt because a transcript was not needed to discover any defects in the charging Information which Redwine challenged. (See R.# 21, Mag. Rep. at 6.) As for Redwine’s assertion that he wrote to counsel in the seventeen days following his conviction without response, this contention falls short of alleging that he asked counsel about his appeal rights durin g the ten-day period for withdrawing his guilty plea. In his habeas petitio n, Redwine did not allege that he wrote to counsel, but merely stated that, after the guilty plea had been entered, “[s]till no contact had been made with the Petition er’s Public Defender.” (R.#1, Habeas Pet. at 12.) Even with liberal construction for Redwine as a pro se petitioner, see Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998), we1 Redwine renews other allegations regarding ineffect ive assistance of

counsel which he raised below and which do not bearon the cause of his procedural default. Although the magistrate judge and district court did not address Redwine’s claim of ineffective assistance o f counsel outside the context of cause for his procedural default, we find such an omission to be harmless, as Redwine does not make the required showing of preju dice under Strickland v. Washington , 466 U.S. 668, 687 (1984). Redwine also claims that the prosecution impermissi bly reneged on a plea bargain which provided for twenty-years’ imprisonme nt, and instead offered a plea bargain for twenty-five years imprisonment, wi th the threat of a life sentence if Redwine proceeded to trial. (See Aplt. Br. at 3, 21-22.) Because Redwine did not raise this claim below, we refuse to exercise j urisdiction over it. See Sac and Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995). - 8 - cannot construe this vague statement as a declarati on that Redwine had tried to contact his attorney to inquire into his appeal rig hts after entry of his guilty plea. If Redwine did in fact try to contact his attorney, as Redwine asserts in his brief, and if he did so to inquire about his appeal rights , then the proper vehicle for Redwine to present such evidence not previously rai sed is a second application for habeas relief, although Redwine would have to s how that the “factual predicate for the claim could not have been discove red previously through the exercise of due diligence.” 28 U.S.C. § 2244(b)(2) . In the petition before us, we find that Redwine has failed to demonstrate that in effective assistance of counsel was cause for his procedural default. 1 Because Redwine is procedurally barred under Coleman v. Thompsonfrom presenting his claims in federal court, and has nototherwise made a substantial showing of the denial of a constitutional right, we DENY a certificate of- 9 -

appealability and DISMISS the appeal. Because we a gree with the district court that Redwine’s claim is not taken in good faith, (s ee R.# 53, Order at 2 (citing McIntosh v. United States Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997)), we DENY his motion for IFP status. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge