* After examining the briefs and the appellate record , this three-judge panel

has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. 

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

### OCT 27 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BOBBY JOE HICKMAN,

Petitioner - Appellant,

v. DENISE SPEARS,

Respondent - Appellee. No. 97-6008

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. 96-CV-1353)

Submitted on the briefs: * Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal Public Defender, Denver, Colorado, for Appellant. W.A. Drew Edmondson, Attorney General of Oklahoma, and William R. Holmes, Assistant Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Appellee.

Before ANDERSON , TACHA , and BALDOCK , Circuit Judges.- 2 -

TACHA , Circuit Judge.

Petitioner Bobby Joe Hickman, an Oklahoma state pri soner proceeding pro se and in forma pauperis, appeals from the districtcourt’s order denying his petition for a writ of habeas corpus, filed in acco rdance with 28 U.S.C. § 2254. We exercise jurisdiction pursuant to 28 U.S.C. § 22 53. For the reasons set forth below, we affirm. On April 12, 1994, in Jefferson County District Cou rt, State of Oklahoma, petitioner pled guilty to Unlawful Possession of Marijuana-Second and Subsequent Offense, Okla. Stat. Ann. tit. 63, § 2-4 02(B)(2) (West 1997). At the time plaintiff entered his guilty plea, he had fourprior felony convictions, three non-drug related. Consequently, petitioner was sentenced under Oklahoma’s Habitual Criminal Act, Okla. Stat. Ann. tit. 21, §5 1, and received the minimum sentence of twenty years imprisonment. Following h is conviction, petitioner failed to file an application withdrawing his guilty plea within the period required by Oklahoma law and did not otherwise attempt to pe rfect a direct appeal. On February 1, 1996, petitioner filed an applicatio n for post-conviction relief in Oklahoma state court claiming that: 1) he had received ineffective assistance of counsel and 2) his sentence was illeg al because it exceeded statutory guidelines. The state courts denied petitioner’s application on procedural default- 3 -

grounds because he had failed to properly raise his claims in a motion to withdraw his guilty plea, or otherwise on direct ap peal. On June 27, 1996, Hickman filed a petition for a writ of habeas corpu s in federal district court. The habeas corpus petition raises the same claims prese nted to the state courts in petitioner’s application for post-conviction relief. In addition, petitioner argues that it was improper for the state courts to deny p etitioner post-conviction relief based on his procedural default. Pursuant to 28 U. S.C. § 636(b)(1)(B), the matter was referred to a magistrate judge, who recommended denying the petition for a writ of habeas corpus. The district court adopted the magistrate’s recommendation on December 12, 1996. Petitioner fi led a notice of appeal on December 26, 1996. This court granted petitioner’s application for a certificate of appealability on October 14, 1997, and this appe al followed.
I. Before we address the merits of Mr. Hickman’s claim s, we must first examine whether we should deny his habeas corpus pe tition because of procedural default in state court. On habeas review, this cou rt will not consider issues that have been defaulted in state court on an independen t and adequate state procedural ground, unless the petitioner can demons trate cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 749-50 (1991). “A state procedural ground is indep endent if it relies on state law,- 4 -

rather than federal law, as the basis for the decis ion.” English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998). For the state ground to be adequate, it must be “‘strictly or regularly followed’” and “applied ‘ev enhandedly to all similar claims.’” Duvall v. Reynolds , 139 F.3d 768, 797 (10th Cir. 1998) (quoting Hathorn v. Lovorn , 457 U.S. 255, 263 (1982)). In reviewing a denial of a petition for habeas corpus, we review the district court’s c onclusions of law de novo and accept its findings of fact unless they are clearly erroneous. See Wildermuth v. Furlong , 147 F.3d 1234, 1236 (10th Cir. 1998).
A. Under Oklahoma law, a defendant whose conviction is based upon a guilty plea must pursue an appeal to the Court of Criminal Appeals by petition for a writ of certiorari. See Okla. Stat. Ann. tit. 22, § 1051. To commence obt aining a writ of certiorari to appeal a guilty plea conviction, t he petitioner must file an application to withdraw the plea within ten days of the judgment and sentence.
See Okla. R. Crim. App. 4.2(A). In any event, he mustfile the petition for a writ of certiorari within 90 days of conviction. See Okla. Stat. tit. 22, § 1051. Failure to follow these procedural requirements prevents any further post-conviction relief unless petitioner shows a sufficient reason for the default. See Worthen v. Meachum , 842 F.2d 1179, 1181 (10th Cir. 1988), overruled o n other grounds , Coleman v. Thompson , 501 U.S. 722 (1991); Webb v. State , 661 P.2d 904, 905- 5 -

(Okla. Crim. App. 1983). Based upon our review of relevant case law, we conclude that the Court of Criminal Appeals of Okla homa’s decision denying post-conviction relief as to petitioner’s illegal s entence claim rested on independent and adequate state procedural grounds. However, as discussed below, the state procedural default with respect to petitioner’s ineffective assistance of counsel claim requires closer review. This court has vigorously scrutinized the adequacy of state rules involving procedural default which have the effect of barring federal habeas review of ineffective assistance of counsel claims. See, e.g

. , English v. Cody , 146 F.2d 1257, 1259 (10th Cir. 1998), Jackson v. Shanks , 143 F.3d 1313, 1318-19 (10th Cir. 1998); Brecheen v. Reynolds , 41 F.3d 1343, 1363-64 (10th Cir. 1994). We give special attention to ineffective assistance of counsel claims because of the unique concerns associated with them. As stated bythe Supreme Court in Kimmelman v. Morrison :

Because collateral review will frequently be the on ly means through which an accused can effectuate the right t o counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an acc used’s right to effective representation. A layman will ordinarily be unable to recognize counsel’s errors and evaluate counsel’s p rofessional performance; consequently a criminal defendant will rarely know that he has not been represented competently until aftertrial or appeal, usually when he consults another lawyer about his c ase. 477 U.S. 365, 378 (1986) (internal citation omitted ). Noting these concerns, this- 6 -

court held in Brecheen v. Reynolds that the failure to raise an ineffective assistance of counsel claim on direct appeal does n ot preclude federal habeas review of the claim, even if such failure is charac terized as a procedural default under state law. See 41 F.3d at 1363-64. This court based its conclusi on on “the interplay of two factors: (1) the general need for additional fact-finding for the proper resolution of a claim of ineffective assista nce; and (2) the need to allow a petitioner to consult with different counsel on app eal in order to obtain an objective assessment of trial counsel’s performance .” English , 146 F.3d at 1260. We find that the short time frame in which petition er had to perfect a certiorari appeal under Oklahoma law did not give him sufficie nt opportunity to discover and develop his ineffective assistance of counsel c laim. Therefore, we find these procedural rules to be inadequate grounds for denyi ng review of petitioner’s ineffective assistance of counsel claim. According ly, we address the merits of this claim despite petitioner’s state procedural de fault.
B. Having found Oklahoma’s procedural rules governing certiorari appeals to be independent and adequate state grounds for denyi ng review of petitioner’s illegal sentence claim, we will not address the mer its of this claim unless the petitioner shows cause for the default and prejudic e resulting therefrom, or that failure to review his claim will result in a fundam ental miscarriage of justice.- 7 -

“The determination of cause and prejudice and of fu ndamental miscarriage of justice are both matters of federal law.” Demarestv. Price , 130 F.3d 922, 941 (10th Cir. 1997). Petitioner contends that his state law procedural default was the result of his trial counsel’s failure to discover t he trial court’s alleged sentencing error and subsequent failure to advise petitioner t o pursue a direct appeal. Attorney error amounting to constitutionally ineffe ctive assistance of counsel constitutes “cause” for a procedural defaul t. See Coleman v. Thompson , 501 U.S. 722, 754 (1991). An individual’s Sixth Am endment right to effective counsel “is limited to the first appeal as of right .” See Evitts v. Lucey , 469 U.S. 387, 396 (1985). “Although a guilty plea appeal is technically referred to in Oklahoma as a ‘certiorari appeal’, Oklahoma [courts have] always treated this appeal as an appeal of right.” Randall v. State , 861 P.2d 314, 316 (Okla. Crim. App. 1993). Thus, Mr. Hickman was entitled to effe ctive counsel during the time period available for appeal of his conviction. Bec ause the same legal standards govern petitioner’s underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, we must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim.
II. Petitioner asserts that his Sixth Amendment right t o effective assistance of- 8 -

counsel was violated when his trial counsel failed to object to the imposition of an enhanced sentence under Oklahoma’s Habitual Crim inal Act. We disagree. “A claim of ineffective assistance of counsel prese nts a mixed question of law and fact which we review de novo.” Brewer v. Reyno lds , 51 F.3d 1519, 1523 (10th Cir. 1995). To prevail on this claim, petiti oner must show: 1) that his counsel’s performance fell below an objective stand ard of reasonableness and 2) that the deficient performance was prejudicial to h is defense. See Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). To satisfy the fi rst prong of this test, petitioner must overcome the “strong presumption th at counsel’s conduct falls within the wide range of reasonable professional as sistance.” Id. at 689; see also Duvall v. Reynolds , 139 F.3d 768, 777 (10th Cir. 1998). We review pe titioner’s ineffective assistance of counsel claim from the pe rspective of his counsel at the time he rendered his legal services, not in hindsig ht. See Strickland , 466 U.S. at 689. In addition, in considering counsel’s perform ance, we focus on “not what is prudent or appropriate, but only what is constituti onally compelled.” United States v. Chronic , 466 U.S. 648, 665 n.38 (1984). To satisfy the se cond prong, petitioner must show that “there is a reasonable pr obability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. Petitioner argues that his counsel’s failure to obj ect to his enhanced- 9 -

sentence under Oklahoma’s Habitual Criminal Act amo unted to constitutionally deficient performance because the sentence he recei ved exceeded that allowed by Oklahoma law. In particular, petitioner asserts th at his counsel should have discovered that his second drug conviction could no t trigger an enhanced penalty under the Habitual Criminal Act because this offens e, second marijuana possession, is already subject to a specific senten ce enhancement provision under Oklahoma’s Uniform Controlled Dangerous Substance A ct, Okla. Stat. tit. 63, § 2-402. Petitioner further argues that § 2-402 wo uld have limited his sentence to ten years, thereby making the trial court’s imposit ion of a twenty year sentence appealable error. We disagree. There is no clear Oklahoma authority supporting petitioner’s argument, and we find that a reasonabl e and competent counsel might conclude that, based on the lack of legal authority and the plain language of the Habitual Criminal Act, petitioner’s sentence was pr oper. Oklahoma’s Habitual Criminal Act states: “Every per son who, having been twice convicted of felony offenses, commits a third , or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished by imprisonment . . . f or a term of not less than twenty (20) years.” Okla. Stat. Ann. tit. 21, § 51 (B). The plain language of this1 By way of comparison, the sentence enhancement prov ision of the

Oklahoma Uniform Controlled Dangerous Substances Ac t makes an initial marijuana offense a misdemeanor and second or subse quent offenses for marijuana a felony punishable by two to ten years. See Okla. Stat. Ann. tit. 63, § 2-402(B)(2). - 10 - statute makes it applicable to all felonies, whethe r or not they are drug-related. 1 The question at issue is whether Oklahoma law otherwise prevents the application of the Habitual Criminal Act to petitio ner’s drug offense. Oklahoma has a general statutory provision prohibiting multi ple punishment which states:

If there be in any other chapter of the laws of thi s state a provision making any specific act or omission crimi nal and providing the punishment therefor, and there be in this penal code any provision making the same act o r omission a criminal offense or prescribing the punishment thereof, that offense and the punishment thereof, shall be governed by the special provision s made in relation thereto, and not by the provisions of this penal code. But an act or omission which is m ade punishable in different ways by different provision s of this code may be punished under either of such provisions, except that in cases specified in Secti ons 51 and 54 of this title, the punishments therein presc ribed are substituted for those prescribed for a first of fense, but in no case can it be punished under more than o ne; and an acquittal or conviction and sentence under e ither one, bars the prosecution for the same act or omiss ion under any other. Okla. Stat. tit. 21, § 11(A). Petitioner argues th at this language prevents his marijuana possession offense from being enhanced un der both the controlled substance statute and the Habitual Criminal Act. Oklahoma law provides no clear- 11 -

support for this conclusion. In fact, it likely supports the opposite. The Court of Criminal Appeals of Oklahoma has already examined t he interplay of the three relevant statutes in this case: 1) Okla. Stat. tit. 21, § 11(A); 2) the Habitual Criminal Act; and 3) § 2-204 of the Uniform Control led Dangerous Substances Act. It held that when a person has been previousl y convicted of both drug and non-drug felonies, a court may use either the Habit ual Criminal Act or the Uniform Controlled Dangerous Substances Act to enhance the sentence for a new felony drug offense. See Cooper v. State , 806 P.2d 1136, 1139 (Okla. Crim. App. 1991); Jones v. State , 789 P.2d 245, 247 (Okla. Crim. App. 1990). As noted above, the plain language of the Habitual Criminal Act makes it applicable to all felonies . Because the Habitual Criminal Act does not defin e the term “felony,” the determination of what is or is n ot a felony must necessarily be made by reference to another provision of law. Okl ahoma courts have concluded that an offense’s categorization under provisions o f law outside the state’s penal code may be used when making the determination as t o what constitutes a felony under the Habitual Criminal Act. As recently state d by the Court of Criminal Appeals of Oklahoma, “[t]he power to define crime a nd punishment . . . lies with the legislature . . . . When deciding whether an a ct has been classified as a felony crime, the Court looks to the specific legislative definition not the ordinary definition of a felony or the punishment imposed.” Walker v. State , 953 P.2d- 12 -

354, 356 (Okla. Crim. App. 1998). For example, in Chapple v. State , the Court of Criminal Appeals of Oklahoma held that the plain la nguage of the Habitual Criminal Act permitted any felonyto be used as a predicate offense. 866 P.2d 1213, 1217 (Okla. Crim. App. 1993). The court then held that under Okla. Stat. tit. 47, § 11-902, a provision outside of the state ’s penal code, a second DUI committed within ten years of the first DUI convict ion is “deemed, under Oklahoma law, to be a felony offense.” Id. Consequently, the court found the felony DUI conviction was not “immune from use unde r the Habitual Criminal Act.” Id. Like the second DUI offense in Chapple , petitioner’s second drug offense is a felony under Oklahoma law. See Okla. Stat. tit. 63, § 2-402(B)(2) (“A second or subsequent violation of this section with respec t to . . . marijuana . . . is a felonypunishable by imprisonment for not less than two ( 2) nor more than ten (10) years.”) (emphasis added). Additionally, we c ould find no Oklahoma authority prohibiting the application of the Habitu al Criminal Act to drug-related felonies when the drug offense would have been a mi sdemeanor had it been a first offense. Based on the plain language of the Habitu al Criminal Act and the lack of any clear authority prohibiting its use to enhance petitioner’s drug offense, we find that a reasonable and competent counsel could have concluded that petitioner’s second drug offense would constitute a“felony” for the purposes of- 13 -

the Habitual Criminal Act and that his client, with four prior felony convictions (three non-drug related), would be subject to sente nce enhancement under the Act. Therefore, we conclude that counsel’s failur e to object to the enhancement of petitioner’s sentence under Oklahoma’s Habitual Criminal Act did not amount to constitutionally deficient performance. Cf. Jackson v. Shanks , 143 F.3d 1313, 1321 (10th Cir. 1998) (“Absent counsel’s omission o f an obvious winner on appeal, we are not inclined to second-guess appellate counsel’s decision to eliminate arguable but weak claims.”). Consequentl y, having failed to satisfy the first prong of the Stricklandtest, petitioner’s ineffective assistance claim is without merit. Based on these same considerations, we also find th at petitioner has failed to show “cause” for his procedural default in state court as to his illegal sentence claim. A reasonable and competent counsel could, a s discussed above, conclude that there was no error in Mr. Hickman’s sentence a nd therefore no basis for a plea withdrawal or an appeal. In addition, Mr. Hic kman cannot show that denying review of his claim based on his state law procedur al default will result in a miscarriage of justice, for to meet this standard, “the petitioner must supplement his habeas claim with a colorable showing of factua l innocence.” Demarest v. Price , 130 F.3d 922, 941 (10th Cir. 1997). Petitioner h as presented no evidence of his innocence. Therefore, Mr. Hickman has not m ade a sufficient showing- 14 -

under Colemanto excuse his state law procedural default with re spect to his illegal sentence claim, and, accordingly, we shall not address its merits.
III. For the above reasons, the order of the district co urt denying Mr. Hickman’s petition for a writ of habeas corpus is A FFIRMED.