Filed: Patrick Fisher
Filed: Patrick Fisher
OCT 13 1998
PATRICK FISHER
Clerk
No. 97-6402
(W.D. Okla.)
(D.Ct. No. 97-CV-639)
RON CHAMPION,
Respondent-Appellee.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Mr. Walker plead guilty and was convicted of six counts of criminal
conduct, including assault with intent to commit rape, in four separate state court
cases. 2 These convictions followed former convictions of two or more felonies.
In the first three cases, the state court sentenced Mr. Walker to consecutive
twenty-, twenty-, and thirty-year terms of imprisonment. For each of the three
counts in the fourth case, he was sentenced to fifty years, with the three fifty-year
terms to run concurrent with one another, but consecutive to the sentences
Apparently, the State argued Mr. Walkers first claim was not properly
exhausted, but nevertheless elected to have this claim decided on its merits. See 104 of
the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996).
1
The first three cases included conviction for first and second degree burglaries
and concealing stolen property. The fourth case included conviction for robbery with a
dangerous weapon, first degree burglary, and assault with intent to commit rape.
2
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On April 23, 1997, Mr. Walker filed a petition for a writ of habeas corpus.
On recommendation of a federal magistrate judge, the district court dismissed Mr.
Walkers habeas petition. Mr. Walker then filed a Notice of Appeal, which the
district court considered as a request for a 28 U.S.C. 2253 Certificate of
Appealability, and then denied on grounds it failed to make a substantial
showing of the denial of a constitutional right. 3 We agree with the district court.
We therefore deny Mr. Walkers request for a certificate of appealability and
dismiss this appeal.
Because the transcript was not provided in the record on appeal, we defer to the
magistrate judges review of the transcript and his findings. When a trial transcript is not
4
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and intelligently made guilty pleas to all counts after being fully informed of the
range of punishment for each offense as enhanced by the prior convictions.
Because Mr. Walker was fully informed prior to entering his plea that his prior
convictions could be used to enhance his sentences, the magistrate judge properly
determined his subsequent pleas of guilty constitute a waiver of all
nonjurisdictional defects and defenses occurring prior to the entry of the plea. See
Barker v. United States, 579 F.2d 1219, 1225-26 (10th Cir. 1978). The magistrate
judge concluded this rule of law applies whether the attack is an independent
attack on the prior convictions or on the present enhanced sentences through a
challenge to the prior convictions. We agree. Id. at 1225-26.
The magistrate judge next reviewed Mr. Walkers claim the trial court erred
in accepting his guilty plea to assault with intent to commit rape, without
establishing a factual basis for his plea. The magistrate judge found Mr. Walker
never alleged he had professed his innocence at the time he entered his guilty
plea, nor does the record contain any indication of innocence. Absent a protest of
designated as part of the record on appeal, an appellate court cannot review the district
courts factual findings and must accept them as correct. See generally United States v.
Vasquez, 985 F.2d 491 (10th Cir. 1993). Because the magistrate judge summarized
pertinent portions of the testimony in his report and that testimony supports his findings,
we accept his findings as true.
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innocence at the time a plea is entered, the magistrate judge properly concluded
the trial court has no constitutional duty to establish a factual basis for his plea.
See Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001
(1971).
Lastly, the magistrate judge did not rule on Mr. Walkers claim the trial
court improperly considered pardon and parole policies in assessing his sentence,
thereby constituting prejudicial error as a matter of state law. Rather, the
magistrate judge determined the states failure to follow its own law on
sentencing procedures is insufficient to warrant federal habeas corpus relief. See
Matthews v. Price, 83 F.3d 328, 331 (10th Cir. 1996). We afford wide discretion
to a state trial courts sentencing decision, and challenges to that decision are not
generally constitutionally cognizable, unless it is shown the sentence imposed is
outside the statutory limits or unauthorized by law. See Haynes v. Butler, 825
F.2d 921, 923-24 (5th Cir. 1987), cert. denied, 484 U.S. 1014 (1988); Handley v.
Page, 398 F.2d 351, 352 (10th Cir. 1968). The magistrate judge, after reviewing
the record and Okla. Stat. tit. 21, 51, determined Mr. Walkers sentences were
within statutory limits and therefore, he is not entitled to federal habeas relief.
unsupported by the record is not erroneous and is supported by the pleadings and
record. The district court adopted the magistrate judges findings and
recommendations in denying Mr. Walkers habeas petition and his request for a
certificate of appealability, stating he failed to make a substantial showing of the
denial of a constitutional right.
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