* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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. 

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

### SEP 1 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HARLEY R. ROBERTS, Petitioner-Appellant,

v. H. N. SCOTT, Respondent-Appellee. No. 98-6119 (D.C. No. CIV-97-821-R) (W.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , 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); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Harley Ray Roberts brought this pro se petition forhabeas corpus relief under 28 U.S.C. § 2254, alleging that he received i neffective assistance of-2-

counsel with respect to a plea agreement disposing of three state criminal proceedings, and that his sentence exceeded that pr ovided by the agreement. The district court denied relief, concluding that the c laims were procedurally barred, and denied Mr. Roberts’ request for a certificate o f appealability. Mr. Roberts appeals and renews his request for a certificate of appealability. We agree with the district court that Mr. Roberts’ claims are barred. We therefore deny his motion for a certificate of appealability and dismi ss his appeal. The state court proceeding at issue disposed of thr ee criminal actions against Mr. Roberts: in case number CRF-86-658 he w as charged with robbery with a firearm after former conviction of two or mo re felonies; in case number CRF-87-89 he was charged with twenty-five counts of unauthorized use of a credit card; and in case number CRF-86-659 he was c harged with one count of assault and battery with a deadly weapon after form er conviction of two or more felonies and one count of carrying a concealed weap on after former conviction of two or more felonies. Mr. Roberts pled guilty to a ll the charges and was sentenced to life imprisonment in CRF-86-658, concu rrent sentences of twentyfive years on the twenty-five counts in CRF-87-89, and two life sentences on the two counts in CRF-86-659. Mr. Roberts did not take a direct appeal. In 1992, he filed unsuccessful petitions for state post-conviction relief challeng ing his convictions in all three-3-

cases. Those petitions contained allegations of in effective counsel which Mr. Roberts subsequently abandoned. In 1996, Mr. Roberts filed second petitions in state court seeking post-conviction relief in all three cases, in which he asserted new ineffective assistance of counsel claims and co ntended that his sentence exceeded that provided in the plea agreement. The state district court ruled that these claims were procedurally barred by Mr. Robert s’ failure to raise them on direct appeal or in his first state post-convictionproceedings. The state Court of Criminal Appeals held that Mr. Roberts’ sentence un der the count charging him with carrying a concealed weapon was not legally va lid and was therefore not immune from collateral attack. Accordingly, the ap pellate court ordered that sentence vacated and remanded the matter to the dis trict court to impose a proper sentence. The court affirmed the denial of post-co nviction relief in all other respects, agreeing with the district court that the remaining claims were procedurally barred. Mr. Roberts then filed this petition for federal habeas corpus relief under section 2254, reasserting with respect to all three state cases that his counsel was ineffective and that his sentence exceeded that pro vided in the plea agreement. After ascertaining that Mr. Roberts had in fact fil ed two requests for state postconviction relief in each case, the federal distric t court held the claims procedurally barred by Mr. Roberts’ failure to rais e them previously.1 Mr. Roberts’ assertion that he pled to and was sentenced under an invalid

concealed weapon charge was not deemed defaulted bythe state appellate court. The court did conclude, however, that any claim of ineffectiveness in this regard was procedurally barred by Mr. Roberts’ failure to raise it in his first state postconviction challenge to this conviction. Although we may thus consider the invalid sentence claim on the merits, Mr. Roberts r eceived all the relief he is due on this claim when he was resentenced on the charge from life to ten days in jail. As the state appellate court observed, Mr. Roberts actually received more than he bargained for as a result of his resentencing. Lik ewise, given the two remaining life sentences to which Mr. Roberts was subject on the other charges covered by the plea agreement, Mr. Roberts has failed to show that this error had an impact on his decision to enter into the plea agreement. -4- With the exception of the sentence on Mr. Roberts’ concealed weapon conviction, 1 the state appellate court’s denial of state post-c onviction relief was explicitly grounded on procedural default, namely M r. Roberts’ failure to raise the issues on direct appeal or in his first post-convic tion proceedings. When a federal habeas petitioner seeks to raise claims that have b een defaulted in state court, he must show both cause for the default and prejudice resulting from the constitutional violation. See Klein v. Neal , 45 F.3d 1395, 1400 (10th Cir. 1995). Moreover, we have held that ineffective assistance of counsel claims that were raised for the first time in second state post-conv iction proceedings, are barred unless the petitioner can make the requisite showin g. See Moore v. Reynolds , No. 97-6065, 1998 WL 387452, at *6-7 (10th Cir. July 13 , 1998). Mr. Roberts has not shown cause for his failure to raise the defaulted claims in his first state postconviction proceedings. He likewise has failed to show that he falls within the-5-

narrow exception created to prevent a fundamental m iscarriage of justice. That inquiry focuses on factual as opposed to legal inno cence, and is foreclosed in this case by Mr. Roberts’ guilty pleas. See Klein, 45 F.3d at 1400

. Accordingly, we conclude that the claims raised in Mr. Roberts’ fed eral habeas petition are procedurally barred. We DENY Mr. Roberts’ request for a certificate of appealab ility and DISMISS his appeal. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge