* This order and judgment is not binding precedent, except under the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

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 conviction. 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 the 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases 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 pursuant 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 two 1985 convictions which he

asserted were constitutionally infirm.1 
-3-

Appeal No. 96-1161

Before the district court, appellant contended that a 1985 conviction for

possession of a controlled substance was the result of a breached plea agreement,

an involuntary guilty plea, improper advisement at the time of that plea, and

ineffective assistance of trial counsel. In connection with this 1985 conviction,

he also alleged as error the state court’s dismissal of his post-conviction motion

and the denial of an evidentiary hearing by that court, and contended that the

state’s applicable statute of limitations was unconstitutional. Appellant also

sought an evidentiary hearing before the district court. 

Appeal No. 96-1162

In this case, appellant challenged as unconstitutional a separate 1985

conviction for conspiracy to commit second degree burglary, alleging that it also

was the result of a breached plea agreement. He again 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 petitions 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 previously may have had to bring

collateral challenges to the 1985 convictions. See Johnson v. Puckett, 930 F.2d
2 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has

since amended the applicable law to require a “certificate of appealability.” 

Because appellant was granted certificates of probable 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. filed, No. 96-7296 (Dec. 30,

1996). 

-4-

445, 449-50 (5th Cir. 1991). Alternatively, the district court concluded

appellant’s claims were barred on grounds of procedural default and/or because

they failed to state constitutional claims cognizable on federal habeas corpus

review. The district court denied appellant’s evidentiary hearing motions, but

granted him leave to proceed in forma pauperis on both 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 convictions. He contends he was

never advised that, in pleading guilty to the habitual offender counts, he was

waiving his right to challenge the underlying convictions. He points to a

jurisdictional exception to the waiver doctrine, and argues his habeas claims are

jurisdictional because they all relate to his sentence. We reject both of these

arguments, and affirm the district court’s orders based on its waiver analysis. 

First, we agree with appellees there is no requirement that a defendant be

specifically advised of all of the collateral consequences of a guilty plea to a
3 The record indicates that appellant has filed a separate challenge as to his

1990 conviction; that case is not yet before us. 

-5-

habitual offender charge, including the resulting waiver 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 that we are compelled to look

behind it.3 Further, we disagree that his claims are jurisdictional in nature simply

because they go to the validity of his sentence. The jurisdictional exception to the

waiver doctrine goes to the very ability of a court to try a defendant. 

Because we agree with the district court that appellant has waived any

collateral challenges to his 1985 convictions, we also affirm the district court’s

denials of appellant’s motions for evidentiary hearings. 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 arguments about those grounds. The

judgments of the United States District Court for the District of Colorado are

AFFIRMED. The mandates shall issue forthwith. All outstanding motions are

denied. 

Entered for the Court

Stephen H. Anderson 

Circuit Judge