* This order and judgment is not binding precedent, except under the doctrines of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

### NOV 28 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEONARD RENAL ROBERTS,

Petitioner - Appellant, No. 97-5096

v. (N.D. Oklahoma) RONALD CHAMPION; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees. (D.C. No. 94-CV-690)

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. The c ase is therefore ordered submitted without oral argument.1 Roberts has applied to this court for a certificate of appealability to prosecute his

appeal. Because he filed his petition for habeas corpus on July 13, 1994, prior to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996, he does not need a certificate of appealability to proceed. SeeUnited States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Pursuant to the requirements of 28 U.S.C. § 2253 in effect at the time the petition was filed in the district court, we grant a certificate of probable cause and proceed to the merits of Roberts’ appeal.

-2- Leonard Renal Roberts, an inmate in the Oklahoma pr ison system, appeals the district court’s denial of his petition for a w rit of habeas corpus pursuant to 28 U.S.C. § 2254. 1 Roberts contends that (1) he was denied the opportunity to present witnesses and documentary evidence at his p arole probable cause hearing and denied the right to an executive parole revocat ion hearing; (2) the Oklahoma state courts suspended his right to habeas corpus i n violation of the Oklahoma Constitution and statutes and the United States Con stitution; and (3) he was denied effective assistance of counsel at trial and on appeal. We grant a certificate of probable cause and affirm the distri ct court’s denial of Roberts’ petition.

BACKGROUND In 1976, Roberts was convicted in Tulsa County District Court of attempted robbery with firearms after former conviction of a felony, and on appeal his conviction was upheld. Roberts v. Oklahoma , 571 P.2d 129 (Okla. Crim. App.2 We will address each of Roberts’ claims in the current appeal even though he

pursued some of them in his earlier, abandoned appeal. We do not find any jurisdictional (continued...) -3- 1977). Petitioner then filed applications for post -conviction relief in state court in 1979, 1981, 1988, and 1989, which were denied an d the denials were affirmed on appeal. In 1990, Roberts was released on parole . In 1992, he was convicted of larceny in Tulsa County District Court, his paro le was revoked, and he was sent back to prison. In September 1993, Roberts fi led his fifth action for postconviction relief in state court, alleging, inter a lia, due process violations at his parole revocation hearings and ineffective assistan ce of appellate counsel. Again, relief was denied and the denial was affirmed on ap peal. Roberts, in July 1994, filed this § 2254 habeas corpus petition in federal district court, raising ten grounds for relief. OnNovember 8, 1995, the district court denied relief as to three of the claims becau se they were procedurally barred, and it denied relief on three other claims because they were unreviewable in a federal habeas proceeding. The district courtdid not rule on the four other claims and ordered limited discovery as to those is sues. Roberts then filed a notice of appeal from the court’s denial of the sixclaims. The district court granted Roberts’ motion to proceed in forma pauperis , but denied his request for a certificate of probable cause. We subsequently d ismissed the appeal for lack of prosecution. 22 (...continued)

basis for Roberts’ first appeal from the district court’s partial denial of the habeas petition. The district court’s order was not final, and there was no basis for an interlocutory appeal. -4- After examining the briefs and additional evidence presented on the four remaining claims, the district court found that Rob erts had not waived his executive parole revocation hearing and that he had not waived any procedural errors that may have occurred at the probable cause hearing. Accordingly, the court stayed the habeas petition for 90 days to all ow the State to grant Roberts de novo probable cause and executive parole revocationhearings. The district court ordered that if the hearings were granted, the habe as petition would be denied; otherwise, the court would grant the petition. Rob erts filed a petition for rehearing, claiming that because four years had elapsed since the initial parole revocation hearing and some of his witnesses were d ead or unavailable, de novo hearings were inappropriate and that the habeas pet ition should be granted. The district court denied the motion. After the State granted the rehearings and again re voked Roberts’ parole, the district court dismissed the habeas petition. Roberts then filed four separate motions asking for reconsideration, rehearing, vacation of the dismissal, relief from judgment, and entry of default judgment, which the district court denied.-5-

To the extent this appeal by Roberts is comprehensi ble and as illuminated by his petition and subsequent pleadings, he argues that (1) he was denied the opportunity to present witnesses and documentary ev idence at his parole probable cause hearing and denied the right to an executive parole revocation hearing; (2) the Oklahoma state courts suspended his right to habeas corpus in violation of the Oklahoma Constitution and statutes and the United S tates Constitution; and (3) he was denied effective assistance of counsel at trial and on appeal.

DISCUSSION Roberts first contends that he was not allowed to p resent witnesses and evidence at his parole probable cause hearing and t hat he was denied the right to an executive revocation hearing. The district court essentially agreed with this assertion and Roberts was granted de novo hearings. Roberts now complains that he never was granted a probable cause hearing and that the district court abused its discretion in granting the hearings instead of simply granting his petition. He argues that Oklahoma law requires both hearings to be held within 120 days and that holding the hearings four years later has deni ed him the ability to present witnesses who are now unavailable. As to the contention that no probable cause hearing was held, we note that the written record of the executive parole revocati on hearing indicates that a-6-

finding of probable cause was made on August 20, 19 96. R. Vol. I, tab 42 at 3. Even if Roberts was not allowed to attend the heari ng at which probable cause was found, his right to due process was not violate d. When there has been a conviction for a criminal offense committed subsequ ent to the release on parole, no probable cause hearing is required. Moody v. Da ggett , 429 U.S. 78, 86 & n.7 (1976). “This is so both because the subsequent co nviction obviously gives the parole authority ‘probable cause or reasonable grou nd to believe that the . . . parolee has committed acts that would constitute a violation of parole conditions,’ Morrissey v. Brewer , 408 U.S. 471, 485 (1972), and because issuance of the warrant does not immediately deprive the parolee of liberty.” Moody , 429 U.S. at
86 n.7. The record also shows that at the de novo parole re vocation hearing held on September 5, 1996, Roberts was permitted to introdu ce evidence, including the affidavits of one co-defendant and one other indivi dual who were both involved in the 1992 larceny conviction that led to Roberts’ parole revocation. R. Vol. I, tab 42 at 3-4. The affidavits stated that Roberts was neither involved in, nor had knowledge of, the 1992 crime for which he was convi cted. Id. At the hearing Roberts also maintained his innocence and pointed o ut that the conviction was being appealed. The parole board considered the ev idence presented and recommended that his parole be revoked.-7-

The district court has the discretion either to all ow the state to conform to the district court’s ruling on federal grounds with in a specified period of time or to release the petitioner depending on the circumst ances giving rise to the petition. See Jefferson v. Hart , 84 F.3d 1314, 1316-17 (10th Cir.), cert. denied , 117 S. Ct. 258 (1996); Harris v. Champion , 48 F.3d 1127, 1132-33 (10th Cir. 1995); Capps v. Sullivan , 13 F.3d 350, 352 (10th Cir. 1993). Delay in hold ing a parole revocation hearing by itself is not a per se violation of due process entitling an inmate to release. See McNeal v. United States , 553 F.2d 66, 68 (10th Cir. 1977). If the error “forming the basis for the relief cannot be corrected in further proceedings,” it is appropriate for the district court to grant the petition without allowing the state to correct its error. C apps , 13 F.3d at 352. Yet, conditional orders granting de novo parole revocati on hearings are often the most appropriate form of relief. See Phifer v. Warden , 53 F.3d 859, 863-65 (7th Cir. 1995); see also Jefferson , 84 F.3d at 1316-17. Here, the errors alleged by Roberts were properly r esolved by the new parole revocation hearing. Because Roberts was abl e to present evidence and rebut evidence presented at the hearing, even thoug h some testimony might not have been available, we find that the de novo heari ng properly resolved petitioner’s first claim.-8-

Roberts’ second contention, that the state courts s uspended his right to a writ of habeas corpus, is a challenge to the propri ety of state post-conviction procedures. Because this is collateral to his alle ged illegal detention, it is not a proper basis for relief in a federal habeas action. See Steele v. Young , 11 F.3d 1518, 1524 (10th Cir. 1993); Hopkinson v. Shillinge r , 866 F.2d 1185, 1218-19 (10th Cir.), on reh’g , 888 F.2d 1286 (1989), overruling on other grounds recognized byDavis v. Maynard , 911 F.2d 415, 417 (10th Cir. 1990). Roberts’ third argument is that he was denied eff ective assistance of counsel. Roberts asserts that his trial counsel sh ould have objected to the use of prior, invalid convictions at trial and at sentenci ng and that his appellate counsel should have raised the issue on direct appeal. Rob erts’ § 2254 petition before the district court did not initially raise the ineffect iveness issue; instead, it alleged that the use of several convictions was unconstitut ional. Roberts raised the ineffectiveness claim only after the State’s respon se to the petition alleged that because no cause was shown as to Roberts’ failure t o raise the conviction issue on direct appeal, it was procedurally barred. While generally the “failure to raise a claim at tr ial or on direct appeal will preclude federal habeas corpus review of the merits of the claim absent a showing of either cause and prejudice or a fundamental misc arriage of justice,” Brecheen v. Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994), if the under lying claim is-9-

ineffective assistance of counsel, the “general” ru le must give way because of countervailing concerns unique to ineffective assis tance claims. Brewer v. Reynolds , 51 F.3d 1519, 1522 (10th Cir. 1995); Brecheen , 41 F.3d at 1363-64. However, the failure to raise an ineffectiveness of counsel claim in the first collateral proceeding, as well as on direct appeal, procedurally bars review of that claim. Brecheen , 41 F.3d at 1363-64. Here, because Roberts did no t raise the ineffectiveness of counsel claim regarding the prio r convictions on direct appeal or in his first post-conviction proceeding in 1979, the district court was correct in finding that this claim was procedurally barred.

CONCLUSION For the foregoing reasons, we GRANT a certificate o f probable cause and AFFIRM the district court’s denial of the petition on the merits.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge