Valentin Benavidez III v. Tom C. Martin, Warden State of Oklahoma, 166 F.3d 346, 10th Cir. (1998)

166 F.
3d 346
98 CJ C.A.R. 6177
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Valentin BENAVIDEZ III, Petitioner-Appellant,

v.
Tom C. MARTIN, Warden; State of Oklahoma, RespondentsAppellees.
No. 98-6277.
United States Court of Appeals, Tenth Circuit.

Dec. 10, 1998.
ANDERSON, McKAY, and LUCERO, JJ.

ORDER AND JUDGMENT*
After examining Petitioner-Appellant's brief and the 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)(2); 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.
Petitioner, proceeding pro se, appeals the district court's denial of his 28
U.S.C. 2254 petition for a writ of habeas corpus. Petitioner was
convicted after entering blind pleas of guilty to a count of first degree
rape, two counts of forcible oral sodomy, and two counts of indecent or
lewd acts with a child under sixteen. Petitioner was sentenced to thirty
years' imprisonment to be served consecutively to four twenty-year
concurrent sentences. After receiving his sentence, Petitioner filed an
application to withdraw his guilty pleas in the Oklahoma County District
Court. The court denied the motion after a hearing. Petitioner filed a
notice of intent to appeal the court's denial of his application, but he never
perfected this appeal. Acting pro se, Petitioner then filed an application for
post-conviction relief in the Oklahoma district court in which he asserted a
claim that he did not actually rape his victim and a claim of ineffective
assistance of counsel based on his lawyer's alleged failure to object to the
factual allegations asserted by the prosecutor at the plea hearing. The
court also denied this motion on the merits. Petitioner appealed this
denial, but the Oklahoma Court of Criminal Appeals dismissed the appeal
as time-barred because Petitioner failed to file his petition in error within
the governing time period. See Okla.Crim.App. R. 5.2(C).
In his section 2254 petition, Petitioner alleged that he was denied his due
process right to a direct appeal because his retained counsel abandoned
him after filing a notice of appeal but before perfecting the appeal.
Petitioner also sought appointment of counsel and necessary records at
public expense to perfect an out-of-time appeal. Respondent moved to
dismiss the petition on the basis of procedural default. Respondent alleged
that Petitioner waived his right to assert the claims he raised in his
application to withdraw his guilty pleas and his application for postconviction relief for two reasons: first, he failed to perfect the appeal of
the denial of his application to withdraw his guilty pleas; and second, he
failed to timely appeal the denial of his post-conviction application.
Respondent also argued that Petitioner's claim that his counsel abandoned
him before perfecting his appeal was barred because he did not raise it in
his application for post-conviction relief even though the facts and law
surrounding the claim were available to him at the time he filed the
application. According to Respondent, because Petitioner's claim that his
counsel abandoned him before perfecting his appeal was distinct from the
ineffective assistance of counsel claim that he raised in his post-conviction
application, the new ineffective assistance of counsel claim should be
procedurally barred.
The magistrate judge recommended denying the habeas petition because
Petitioner's claims were procedurally barred and because Petitioner failed
to show cause and prejudice or a fundamental miscarriage of justice. After
reviewing Petitioner's objections, the district court adopted the magistrate
judge's recommendations and denied the section 2254 petition. The court
subsequently denied Petitioner a certificate of appealability to appeal the
denial of habeas relief.
On appeal, Petitioner renews his application for a certificate of
appealability and asserts that the district court improperly denied his
habeas corpus petition. Petitioner essentially alleges that the district court
erred in finding that he procedurally defaulted his state court remedies.
Petitioner also claims that even if his claims are procedurally barred, his
attorney's failure to perfect his appeal amounted to ineffective assistance
of counsel and denial of his right to counsel, which in turn established
cause and prejudice sufficient to overcome the procedural bar. We review
the district court's conclusions of law de novo, but we presume that the
state court's factual findings are correct unless the record does not fairly
support them. See Hatch v. Oklahoma, 58 F.3d 1447, 1453 (10th
Cir.1995), cert. denied, 517 U.S. 235 (1996). Our review of mixed
questions of law and fact is de novo. See id. Defendant must make "a
substantial showing of the denial of a constitutional right" to obtain a
certificate of appealability. 28 U.S.C. 2253(c)(2).
The magistrate judge and the district court concluded that Petitioner's
claims are procedurally barred. We agree. First, Petitioner procedurally
defaulted on the claims asserted in Petitioner's application to withdraw his
guilty pleas by failing to perfect his appeal from the denial of the
application. Second, Petitioner defaulted on the claims he asserted in his
post-conviction application by failing to timely appeal the trial court's
denial of that application. Finally, Petitioner is barred from raising the
claims he asserted in his habeas petition because he failed to raise them in
his application for post-conviction relief. See Okla. Stat. tit. 22, 1086;
Jackson v. Champion, 96 F.3d 1453 (10th Cir.1996) (Table) (explaining
that Oklahoma Court of Criminal Appeals has consistently applied section
1086 to bar claims that could have been raised in prior post-conviction
proceedings), cert. denied, 520 U.S. 1124, 117 S.Ct. 1264, 137 L.Ed.2d
343 (1997); Steele v. Young, 11 F.3d 1518, 1521 (10th Cir.1993) (stating
that Oklahoma courts have clearly indicated that section 1086 strictly
prohibits raising claims that could have been raised earlier, even if they
involve fundamental rights).
We further agree with the district court that Petitioner has not established
cause and prejudice or a fundamental miscarriage of justice sufficient to
overcome the procedural bar. "On habeas review, we do not address issues
that have been defaulted in state court on an independent and adequate
state procedural ground, unless cause and prejudice or a fundamental
miscarriage of justice is shown." Steele, 11 F.3d at 1521. Petitioner seems
to argue that his counsel's failure to perfect his appeal of the denial of his
application to withdraw his guilty pleas amounts to ineffective assistance
of counsel and thus constitutes cause for each of his three procedural
defaults. A showing of ineffective assistance of counsel typically
demonstrates cause and prejudice sufficient to overcome state procedural
default. See Coleman v. Thompson, 501 U.S. 722, 754, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991); Romero v. Tansy, 46 F.3d 1024, 1030 (10th
Cir.), cert. denied, 515 U.S. 1148, 115 S.Ct. 2591, 132 L.Ed.2d 839
(1995). Moreover, "[t]his court has vigorously scrutinized the adequacy of
state rules involving procedural default which have the effect of barring
federal habeas review of ineffective assistance of counsel claims."
Hickman v. Spears, --- F.3d ----, No. 97-6008, 1998 WL 767447, at * 2
(10th Cir. Oct.27, 1998).
In this case, however, even if Petitioner demonstrates that ineffective
assistance was the cause of his failure to perfect his appeal, he still must
show cause for failing to raise his claim that his lawyer abandoned him
before perfecting his appeal in his post-conviction application and for
failing to timely appeal the denial of his post-conviction application.
However, Petitioner proceeded pro se in his post-conviction proceeding.
Further, he did not have a constitutional right to counsel in his postconviction proceeding. See Coleman, 501 U.S. at 752 ("There is no
constitutional right to an attorney in state post-conviction proceedings.").
Because Petitioner had neither counsel nor a right to counsel in his postconviction proceeding, ineffective assistance of counsel cannot be the
cause of his failure to raise the claim that his counsel abandoned him in
his post-conviction application. See Coleman, 501 U.S. at 752 ("[A]
petitioner cannot claim constitutionally ineffective assistance of counsel in
[state post-conviction] proceedings."). Nor can ineffective assistance be
the cause of Petitioner's failure to timely appeal the denial of his postconviction application. See id.; Evitts v. Lucey, 469 U.S. 387, 394, 396,
105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (stating that right to counsel is
limited to first appeal as of right and encompasses right to effective
assistance of counsel). Petitioner also has not shown that the application of
a procedural bar will result in a fundamental miscarriage of justice
because he has not made a claim of actual innocence on appeal. See
Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
We decline to issue Petitioner a certificate of appealability because his claims

are procedurally barred and he has not otherwise made a substantial showing of
the denial of a constitutional right.
DISMISSED.
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

Valentin Benavidez III v. Tom C. Martin, Warden State of Oklahoma, 166 F.3d 346, 10th Cir. (1998)

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Valentin Benavidez III v. Tom C. Martin, Warden State of Oklahoma, 166 F.3d 346, 10th Cir. (1998)

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166 F.

Valentin BENAVIDEZ III, Petitioner-Appellant,

United States Court of Appeals, Tenth Circuit.

ANDERSON, McKAY, and LUCERO, JJ.

We decline to issue Petitioner a certificate of appealability because his claims

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