* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### FEB 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GARY L. WIEDEMER,

Petitioner-Appellant,

v. RICHARD MARR, ATTORNEY GENERAL FOR THE STATE OF COLORADO,

Respondents-Appellees. No. 96-1161 (D.C. No. 95-M-1845) (D. Colo.)

GARY L. WIEDEMER,

Petitioner-Appellant,

v. RICHARD MARR, ATTORNEY GENERAL FOR THE STATE OF COLORADO,

Respondents-Appellees. No. 96-1162 (D.C. No. 95-M-1713) (D. Colo.)

ORDER AND JUDGMENT *1 The 1990 conviction resulted from appellant’s guilty plea to third degree

burglary and two habitual criminal counts based on the 1985 convictions. Although he has served the sentences imposed by the two 1985 convictions, he is currently serving his sentence under the 1990 convi ction. Because the 1990 sentence is enhanced by his 1985 convictions, he is not precluded from seeking habeas relief as to his 1990 conviction, based on t he alleged improper enhancement by his 1985 convictions. See Harvey v. Shillinger , 76 F.3d 1528, 1537 (10th Cir.) (citing Gamble v. Parsons , 898 F.2d 117, 118 (10th Cir. 1990)), cert. denied , 117 S. Ct. 253 (1996). -2- Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

After examining the briefs and appellate records, t his panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument. Appellant’s motion to file an amended reply brief in case no. 96-1162 is granted. Gary Lee Wiedemer appeals from the district court’s orders denying two petitions for a writ of habeas corpus, filed pursua nt to 28 U.S.C. § 2254. The district court liberally construed appellant’s pro se petitions to challenge a 1990 conviction as invalid because it was enhanced by tw o 1985 convictions which he asserted were constitutionally infirm. 1-3-

Appeal No. 96-1161 Before the district court, appellant contended thata 1985 conviction for possession of a controlled substance was the resultof a breached plea agreement, an involuntary guilty plea, improper advisement at the time of that plea, and ineffective assistance of trial counsel. In connec tion with this 1985 conviction, he also alleged as error the state court’s dismissa l of his post-conviction motion and the denial of an evidentiary hearing by that co urt, and contended that the state’s applicable statute of limitations was uncon stitutional. Appellant also sought an evidentiary hearing before the district c ourt. Appeal No. 96-1162 In this case, appellant challenged as unconstitutio nal a separate 1985 conviction for conspiracy to commit second degree b urglary, alleging that it also was the result of a breached plea agreement. He ag ain asserted error in the state court’s denial of a hearing on his post-conviction motion and again requested an evidentiary hearing before the district court. District Court Orders The district court denied appellant’s habeas petiti ons because it concluded that his 1990 guilty plea to two habitual criminal charges based on the 1985 convictions resulted in a waiver of any right he pr eviously may have had to bring collateral challenges to the 1985 convictions. See Johnson v. Puckett , 930 F.2d2 The Antiterrorism and Effective Death Penalty Act o f 1996 (AEDPA) has

since amended the applicable law to require a “cert ificate of appealability.” Because appellant was granted certificates of proba ble cause in these appeals before AEDPA became effective, the district court applied the appropriate standards and we need not reexamine the issue. See Nickel v. Hannigan , 97 F.3d 403, 407 n.4 (10th Cir. 1996), petition for cert. f iled , No. 96-7296 (Dec. 30, 1996). -4- 445, 449-50 (5th Cir. 1991). Alternatively, the di strict court concluded appellant’s claims were barred on grounds of proced ural default and/or because they failed to state constitutional claims cognizab le on federal habeas corpus review. The district court denied appellant’s evid entiary hearing motions, but granted him leave to proceed in forma pauperis on b oth appeals, and issued certificates of probable cause to appeal. 2 Analysis On appeal, appellant challenges the district court’ s conclusion that he has waived the right to collaterally attack his 1985 co nvictions. He contends he was never advised that, in pleading guilty to the habit ual offender counts, he was waiving his right to challenge the underlying convi ctions. He points to a jurisdictional exception to the waiver doctrine, an d argues his habeas claims are jurisdictional because they all relate to his sente nce. We reject both of these arguments, and affirm the district court’s orders b ased on its waiver analysis. First, we agree with appellees there is no requirem ent that a defendant be specifically advised of all of the collateral conse quences of a guilty plea to a3 The record indicates that appellant has filed a sep arate challenge as to his

1990 conviction; that case is not yet before us. -5- habitual offender charge, including the resulting w aiver of his right to collaterally challenge the convictions underlying that charge. In these cases, appellant has alleged no infirmity in his 1990 guilty plea such t hat we are compelled to look behind it. 3 Further, we disagree that his claims are jurisdic tional in nature simply because they go to the validity of his sentence. T he jurisdictional exception to the waiver doctrine goes to the very ability of a courtto try a defendant. Because we agree with the district court that appel lant has waived any collateral challenges to his 1985 convictions, we a lso affirm the district court’s denials of appellant’s motions for evidentiary hear ings. In light of the above analysis, we need not address the district court’s alternative grounds for denial of the petitions for habeas relief or appellant’s argu ments about those grounds. The judgments of the United States District Court for t he District of Colorado are AFFIRMED. The mandates shall issue forthwith. All outstanding motions are denied. Entered for the Court

Stephen H. Anderson Circuit Judge