*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or 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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

Harley Ray Roberts brought this pro se petition for habeas corpus relief

under 28 U.S.C. § 2254, alleging that he received ineffective assistance of
-2-

counsel with respect to a plea agreement disposing of three state criminal

proceedings, and that his sentence exceeded that provided by the agreement. The

district court denied relief, concluding that the claims were procedurally barred,

and denied Mr. Roberts’ request for a certificate of 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 dismiss his appeal.

The state court proceeding at issue disposed of three criminal actions

against Mr. Roberts: in case number CRF-86-658 he was charged with robbery

with a firearm after former conviction of two or more 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 charged with one count of

assault and battery with a deadly weapon after former conviction of two or more

felonies and one count of carrying a concealed weapon after former conviction of

two or more felonies. Mr. Roberts pled guilty to all the charges and was

sentenced to life imprisonment in CRF-86-658, concurrent 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 challenging his convictions in all three
-3-

cases. Those petitions contained allegations of ineffective 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 contended that his sentence

exceeded that provided in the plea agreement. The state district court ruled that

these claims were procedurally barred by Mr. Roberts’ failure to raise them on

direct appeal or in his first state post-conviction proceedings. The state Court of

Criminal Appeals held that Mr. Roberts’ sentence under the count charging him

with carrying a concealed weapon was not legally valid and was therefore not

immune from collateral attack. Accordingly, the appellate court ordered that

sentence vacated and remanded the matter to the district court to impose a proper

sentence. The court affirmed the denial of post-conviction 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 provided in the plea agreement. 

After ascertaining that Mr. Roberts had in fact filed two requests for state postconviction relief in each case, the federal district court held the claims

procedurally barred by Mr. Roberts’ failure to raise them previously. 
1

 Mr. Roberts’ assertion that he pled to and was sentenced under an invalid

concealed weapon charge was not deemed defaulted by the 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 received 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. Likewise, 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-conviction relief was

explicitly grounded on procedural default, namely Mr. Roberts’ failure to raise the

issues on direct appeal or in his first post-conviction proceedings. When a federal

habeas petitioner seeks to raise claims that have been 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-conviction proceedings, are barred

unless the petitioner can make the requisite showing. 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 miscarriage of justice. That

inquiry focuses on factual as opposed to legal innocence, 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’ federal habeas petition are

procedurally barred.

We DENY Mr. Roberts’ request for a certificate of appealability and

DISMISS his appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge