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    Roy Walker appealed the denial of his habeas corpus petition challenging prior convictions used to enhance his sentences. The district court agreed with the magistrate judge's recommendation to deny the petition. The appellate court concluded that Walker failed to demonstrate the denial of a constitutional right for three reasons: 1) Walker knowingly pled guilty and was informed his prior convictions could enhance his sentences; 2) there was no requirement to establish a factual basis for his plea since he did not claim innocence; and 3) challenges to state sentencing procedures are insufficient for federal habeas relief when sentences are within statutory limits. The court dismissed the appeal and denied a certificate of appealability.

    Original Description:

    Filed: 1998-10-13 Precedential Status: Non-Precedential Docket: 97-6402

    Original Title

    Walker v. Champion, 10th Cir. (1998)

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    Roy Walker appealed the denial of his habeas corpus petition challenging prior convictions used to enhance his sentences. The district court agreed with the magistrate judge's recommendation to deny the petition. The appellate court concluded that Walker failed to demonstrate the denial of a constitutional right for three reasons: 1) Walker knowingly pled guilty and was informed his prior convictions could enhance his sentences; 2) there was no requirement to establish a factual basis for his plea since he did not claim innocence; and 3) challenges to state sentencing procedures are insufficient for federal habeas relief when sentences are within statutory limits. The court dismissed the appeal and denied a certificate of appealability.

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    24 views7 pages

    Filed: Patrick Fisher

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    Roy Walker appealed the denial of his habeas corpus petition challenging prior convictions used to enhance his sentences. The district court agreed with the magistrate judge's recommendation to deny the petition. The appellate court concluded that Walker failed to demonstrate the denial of a constitutional right for three reasons: 1) Walker knowingly pled guilty and was informed his prior convictions could enhance his sentences; 2) there was no requirement to establish a factual basis for his plea since he did not claim innocence; and 3) challenges to state sentencing procedures are insufficient for federal habeas relief when sentences are within statutory limits. The court dismissed the appeal and denied a certificate of appealability.

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT
    __________________________

    United States Court of Appeals


    Tenth Circuit

    OCT 13 1998

    PATRICK FISHER
    Clerk

    ROY DALE WALKER,


    Petitioner-Appellant,
    v.

    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.

    Roy Dale Walker brings this pro se application for a certificate of


    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.
    *

    appealability pursuant to 28 U.S.C. 2253, alleging his prior convictions were


    improperly used to enhance the sentences at issue in this case. 1 Specifically, Mr.
    Walker claims that because he was not advised of his right to appeal his prior
    convictions, they are invalid and inappropriate for use in sentencing. Mr. Walker
    also alleges the state trial court erred in accepting his guilty plea of assault with
    intent to commit rape without establishing any factual basis for the plea, and in
    considering pardon and parole policies in setting his sentences.

    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

    -2-

    imposed in the first three cases.

    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.

    A review of the record and the magistrate judges findings and


    recommendations supports the district courts ruling. The magistrate judge, after
    reviewing the transcript of the plea hearing, 4 found Mr. Walker had knowingly
    The district court also denied Mr. Walkers Motion to Proceed In Forma
    Pauperis on the grounds that Mr. Walker had not presented a reasoned, nonfrivolous
    argument and had failed to show the appeal was taken in good faith. Mr. Walker has
    renewed his application for in forma pauperis status in his brief on appeal. In the
    absence of some evident improper motive, the applicants good faith is established by the
    presentation of any issue that is not plainly frivolous. Ellis v. United States, 356 U.S.
    674, 674 (1958). As a pro se litigant, we give Mr. Walker the benefit of the doubt and
    find his appeal meets this standard. However, Mr. Walker is responsible for any
    obligations this creates under 28 U.S.C. 1915(b).
    3

    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

    -3-

    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.
    -4-

    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.

    The magistrate judges determination that Mr. Walkers claims are


    -5-

    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.

    A review of the record and the magistrate judges findings and


    recommendations supports the district courts ruling that Mr. Walker failed to
    substantially demonstrate he has been denied a constitutional right. Accordingly,
    we conclude the claims raised in Mr. Walkers federal habeas appeal do not meet
    the standard on which a certificate of appealability may be granted.

    We attach hereto a copy of the magistrate judges Report and


    Recommendations dated July 23, 1997.

    We deny the certificate of appealability and DISMISS this appeal.


    Entered by the Court:
    WADE BRORBY
    United States Circuit Judge

    -6-

    Attachment not available electronically.

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