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Burdick v. Klinger, 10th Cir. (1999)
Burdick v. Klinger, 10th Cir. (1999)
TENTH CIRCUIT
JUL 14 1999
PATRICK FISHER
Clerk
No. 98-6425
v.
(W.D. Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT
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 Petition, R.
Doc. 2 at 4-7. At the root of these arguments is the claim that the burglary charge
to which he pleaded guilty was barred by double jeopardy protections because it
was based on conduct for which, as an Oklahoma inmate, he had previously
suffered revocation of earned credits. The district court, adopting the report and
recommendation of the magistrate judge, rejected on the merits Burdicks claim
of ineffective assistance of counsel, and dismissed Burdicks double jeopardy
claim on the ground that it was procedurally defaulted.
Burdicks claims on appeal are a mixture of arguments attacking the
procedural default and claims addressing the merits of his petition. On the issue
of procedural default, he claims that neither his attorney nor the court advised him
of his right to withdraw his plea, or of his right to court-appointed counsel on
appeal, and that the pre-fabricated Summary of Facts accompanying his guilty
plea failed to fully advise [him] of all of his appeal rights. Appellants
Opening Br. at 2. He argues that he was denied due process and equal protection
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by not receiving notice of such claimed rights, and that as a result he has
demonstrated cause for his failure to take a direct appeal.
Id. at 5. On the
merits, Burdick styles his double jeopardy claim in various ways: (1) his burglary
conviction violates the federal Constitutions Double Jeopardy Clause; (2) the
conviction violates Oklahoma statutes and the Oklahoma Constitution; (3) his
plea was not voluntary because he was unaware of his state and federal double
jeopardy claims; (4) his counsel was ineffective for not raising the state and
federal double jeopardy claims; (5) he has been denied equal protection because
Oklahoma courts have granted relief on similar claims.
Procedural default issues aside, we reject Burdicks claims. To the extent
he claims Oklahoma double jeopardy protections, and to the extent he claims such
protections as the basis for involuntariness and ineffectiveness arguments, the
claims were not raised before the district court and we refuse to address them for
the first time on appeal.
see also Report and Recommendation, R. Doc. 11 at 6-7 (noting that Burdick does
not assert that his plea was involuntary). We also decline to consider Burdicks
equal protection claim, which was raised for the first time in his reply to the
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and therefore no
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id. at 446.
This case involves bona fide administrative discipline and not grossly
disproportionate civil penalties, as was present in
Appellants
Stephen H. Anderson
Circuit Judge
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