*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and 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 

### OCT 22 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANIEL J. MACIE, Petitioner-Appellant,

v. H.N. "SONNY" SCOTT, Warden, Respondent-Appellee. No. 97-6128 (D.C. No. CIV-97-28-W) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, HENRY, 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. There fore, the case is ordered submitted without oral argument. Petitioner Daniel J. Macie, a state inmate appearin g pro se, appeals the district court's order dismissing his habeas petiti on under 28 U.S.C. § 2254. Macie pleaded guilty in state court on April 22, 19 94, to one count of second-2-

degree rape, one count of sodomy, and one count of forcible sodomy. He was sentenced to fifteen years' imprisonment on the rap e conviction, ten years' imprisonment on the sodomy conviction, and ten year s' imprisonment on the forcible sodomy conviction, with the sentences to b e served consecutively. Macie did not withdraw his guilty plea or file a direct appeal. He filed an application for post-conviction relief in state court, which wa s denied and the denial was affirmed by the Oklahoma Court of Criminal Appeals. Macie asks us to grant him a certificate of appeala bility to appeal the district court's denial of his habeas petition. Th is court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In his federal habeas petition, Macie argued (1) his plea was not knowingly, volunt arily, and intelligently entered; (2) there was no factual basis for a guilty plea to second degree rape; (3) the information was fatally defective; (4) he was c harged under an unconstitutionally vague statute; and (5) he receiv ed ineffective assistance of counsel. Federal habeas review is barred when a "state priso ner has defaulted his federal claims in state court pursuant to an indepe ndent and adequate state procedural rule," unless the prisoner can demonstrate cause and "actual prejudice" or that failure to review the petition will result in a "fundamental miscarriage of1 Although Macie did not present his ineffective assistance of counsel claim on

direct appeal, it is not procedurally barred. SeeBrecheen v. Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994). -3- justice." Coleman v. Thompson , 501 U.S. 722, 750 (1991). Macie did not present any of his claims to the state court on dir ect appeal, as is required by Oklahoma state law. The district court concluded M acie waived his first four claims under an "adequate and independent" state pr ocedural rule when he failed to raise them on direct appeal. Moreover, Macie ha s not demonstrated cause and prejudice for failure to raise his claims in compli ance with Oklahoma law, or that failure to consider his claims will result in a "fu ndamental miscarriage of justice." We agree with the district court's rulings and conc lude Macie's first four claims are procedurally barred. 1 Macie argues he received ineffective assistance of counsel at trial because his counsel (1) failed to investigate and research the Oklahoma rape statute to which he pleaded guilty; (2) advised Macie to entera guilty plea while he was involuntarily intoxicated; (3) failed to present mi tigating testimony during sentencing; and (4) failed to advise him of his rig ht to appeal. To prove he received ineffective assistance of counsel, Macie m ust show his counsel was deficient and that counsel's deficiency prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 686 (1984). In applying the Strick landtest to establish counsel was deficient, Macie must show co unsel gave advice that was-4-

not "within the range of competence demanded of att orneys in criminal cases." Hill v. Lockhart , 474 U.S. 52, 56 (1985). Prejudice is shown by de monstrating there is a "reasonable probability, but for the att orney's errors, [petitioner] would not have pleaded guilty but would have insisted on going to trial." Id . at 59. We review a claim of ineffective assistance of counsel de novo. See Nickel v. Hannigan , 97 F.3d 403, 408 (10th Cir.), cert. denied 117 S. Ct. 112 (1996).

Failing to Investigate Rape Statute Macie argues if his counsel had investigated the st atute and the facts, he would have discovered Macie should not have been ch arged with second degree rape because the victim was not under the age of si xteen. The magistrate found that trial counsel entered into a strategy of recommendi ng a guilty plea on three serious felony counts . . . reliev[ing] petit ioner of being charged with other crimes and . . . provid[ing] him with a lesser sentence on Counts II and III than if he had gone t o trial. . . . Petitioner and trial counsel clearly weighed the ri sks of going to trial and chose to enter a guilty plea in an effort to re ceive lighter sentences for three crimes. Doc. 12 at 10-11. The district court adopted the m agistrate's findings. Judicial scrutiny of counsel's performance must be highly deferential and a court must indulge a strong presumption that, underthe circumstances, the challenged action is considered sound strategy. Un ited States v. Andrews , 790 F.2d 803, 814 (10th Cir. 1986). The validity of a guilty plea depends upon a-5-

defendant's knowing and voluntary choice among alte rnatives. Moore v. U.S. , 950 F.2d 656, 660 (10th Cir. 1991). We must make adetermination in light of all of the circumstances presented in the record. Andr ews , 790 F.2d at 814. In Macie's application for post-conviction relief file d in state court and attached to respondent's response filed before the federal dist rict court, Macie stated that his counsel told him if he did not plead to all three c ounts, the district attorney would bring additional charges. From this, we can conclu de that by pleading guilty to all three counts, Macie possibly avoided being char ged with additional counts. See id . Macie has not demonstrated how he was prejudiced by counsel's representation. Advising Macie to Enter Guilty Plea While Involuntary Intox icated Macie argues counsel erred in allowing him to entera guilty plea while he was involuntarily intoxicated. The record indicate s the court found Macie was competent to enter a guilty plea. Counsel has file d an affidavit stating Macie did not appear to be intoxicated at the time of the ple a. The affidavit also stated that counsel asked Macie if he was under the influence o f any drugs, alcohol, or other substance at the time of the plea and that Macie de nied any such influence. Counsel was not ineffective in advising Macie to pl ead guilty under these circumstances.-6- Failing to Present Mitigating Testimony Macie argues counsel erred by failing to present mi tigating evidence during sentencing. The wisdom of counsel's decision to fo rgo presentation of mitigating testimony during sentence is debatable; however, th e decision was within the range of competence demanded of attorneys in crimin al cases. Hill , 474 U.S. at 56. Failing to Advise of Right to Appeal The record reflects the court advised Macie of his right to appeal at the time he entered his guilty plea. Counsel was not i neffective for failing to advise Macie of his right to appeal. See Laycock v. New Mexico , 880 F.2d 1184, 1187- 88 (10th Cir. 1989) (attorney has no absolute duty to advise client of limited right to appeal after guilty plea). Macie’s motion for leave to proceed in forma pauper is is GRANTED. The certificate of appealability is DENIED and this app eal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge