David Paul Hammer v. Larry Meachum, Director Oklahoma Department of Corrections and J. M. Sunderland, 691 F.2d 958, 10th Cir. (1982)

691 F.
2d 958
David Paul HAMMER, Petitioner-Appellant,

v.
Larry MEACHUM, Director Oklahoma Department of
Corrections
and J. M. Sunderland, Respondents-Appellees.
No. 82-1569.
United States Court of Appeals,

Tenth Circuit.
Oct. 27, 1982.
David Paul Hammer, pro se.

Jan Eric Cartwright, Atty. Gen., and Gloyd McCoy, Asst. Atty. Gen. of
Okl., Okl. City, Okl., for respondents-appellees.
Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.
PER CURIAM.
This three-judge panel has determined unanimously that oral argument would
not be of material assistance in the determination of this appeal. See
Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered
submitted without oral argument.
This is an appeal from an order of the district court dismissing a petition for a
writ of habeas corpus brought under 28 U.S.C. 2254 (1976). The issue is
whether petitioner's state procedural default precludes him from obtaining
federal habeas review. We hold that it does.
Petitioner, an Oklahoma prisoner, pled guilty in May 1978 to charges of

pointing a weapon at another after former conviction of a felony, and
kidnapping after former conviction of a felony, and was sentenced to two
concurrent fifteen-year sentences. No direct appeal was taken.
Subsequently in May 1979, the petitioner filed an application for postconviction relief1 in state court, claiming that his plea was involuntary and that
he had been denied effective assistance of counsel. The matter was set for a
hearing and an attorney was appointed to represent petitioner. After a four-day
continuance, petitioner withdrew his application. He then unsuccessfully sought
copies at public expense of all the documents on file in his case.
In October 1980, petitioner filed a second application for post-conviction relief

in state court making the same allegations. The matter was again set for an
evidentiary hearing. Before the hearing, however, the court dismissed the
application sua sponte, apparently finding that the issues had been decided
adversely to the petitioner because he had raised them in his prior application
and then voluntarily dismissed the application. Petitioner did not appeal this
dismissal. Rather, he filed a third application in May 1981, which was
dismissed as successive. Again no appeal was taken.
Petitioner subsequently filed a petition for a writ of habeas corpus in the

Oklahoma Court of Criminal Appeals. The court dismissed the petition
stating:Title 22 O.S.1971, et seq., encompasses all of the common law remedies
for attacking a conviction after the time in which a regular appeal has expired.
The statute granting authority to file an application for post-conviction relief,
also authorizes a timely filing of an appeal from the denial of said application.
The time within which an appeal from the ruling of the District Court of
Oklahoma County, denying petitioner's application for post-conviction relief,
could be brought, has expired, and the petitioner may not raise, by praying for a
writ of habeas corpus in this Court, previous grounds, alleged or which could
have been alleged in his application for post-conviction relief in the district
court.
Rec., Vol. I, at 16.
Petitioner then filed a petition in the federal district court seeking a writ of
habeas corpus under 28 U.S.C. 2254. The district court determined that
petitioner's claims were barred from consideration by a federal habeas court
because of his knowing bypass of established state procedures.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme
Court held that a state prisoner who knowingly and deliberately bypasses state
procedures intentionally relinquishes known rights and hence is precluded from
federal habeas relief. Fourteen years later in Wainwright v. Sykes, 433 U.S. 72,
97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held that, absent a showing of
both cause for noncompliance and actual prejudice, federal habeas relief is
barred where a state prisoner has failed to comply with a state contemporaneous
objection rule. The Court stated in a footnote that:
10
We have no occasion today to consider the Fay rule as applied to the facts there
confronting the Court. Whether the Francis rule (Francis v. Henderson, 425
U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) ) should preclude federal
habeas review of claims not made in accordance with state procedure where the
criminal defendant has surrendered, other than for reasons of technical
advantage, the right to have all of his claims of trial error considered by a state
appellate court, we leave for another day.
11
433 U.S. at 88 n.12, 97 S.Ct. at 2507 n.12.
12
The law is unsettled as to whether the Fay test or the Sykes test applies where
the state procedural default is a failure to appeal. See, e.g., Crick v. Smith, 650
F.2d 860 (6th Cir. 1981) (applying Fay deliberate bypass test where default was
failure to appeal), cert. denied, --- U.S. ----, 102 S.Ct. 1281, 71 L.Ed.2d 464
(1982); Forman v. Smith, 633 F.2d 634 (2d Cir. 1980) (applying Sykes where
petitioner failed to raise issue on direct appeal), cert. denied, 450 U.S. 1001,
101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th
Cir.) (applying Sykes where petitioner did not raise issue on direct appeal or
preserve it at trial), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301
(1980); Parton v. Wyrick, 614 F.2d 154 (8th Cir.) (applying Sykes where issue
not presented to state court on direct appeal), cert. denied, 449 U.S. 846, 101
S.Ct. 131, 66 L.Ed.2d 56 (1980); Boyer v. Patton, 579 F.2d 284 (3d Cir. 1978)
(concluding that Sykes did not offer direct guidance where default was failure
to appeal).
13
We need not decide in this case whether Fay or the "narrower" standard of
Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506, applies here. Although petitioner
contends that he was unaware of his appellate rights, the application form he
signed when he sought post-conviction relief states:
I14understand I have an absolute right to appeal to the Court of Criminal Appeals from
the trial court's order entered in this case, but I must do so within thirty (30) days
after the entry of the trial judge's order or I will have waived my right to appeal as
provided by 22 O.S.1971, 1087 and Rule 42 of this court.
15
Rec., Vol. II, at 18. Thus, the district court's finding that petitioner made an
informed choice not to appeal is fully supported by the record. See Watkins v.
Crouse, 344 F.2d 927, 929 (10th Cir. 1965).

16
Petitioner also alleges that he was transferred from the Oklahoma State
Reformatory in Granite, Oklahoma to the Connor Correctional Center in
Hominy, Oklahoma in violation of Fed.R.App.P. 23(a).2 He seeks an order
mandating that he be returned to the state reformatory. Respondent concedes
that petitioner was transferred in violation of the rule.
17
Rule 23(a) prohibits the transfer of custody of a petitioner pending review of a

decision in a habeas corpus proceeding filed by that petitioner in federal court,
except by order of the court rendering the decision. "The rule was designed to
prevent prison officials from impeding a prisoner's attempt to obtain habeas
corpus relief by physically removing the prisoner from the territorial
jurisdiction of the court in which a habeas petition is pending. Jago v. U. S.
District Court, N. D. Ohio, E. Div., at Cleveland, 570 F.2d 618, 626 (6th Cir.
1978)." Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir. 1981). See also
9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice P 223.03 (2d ed.
1982). Accordingly, courts have held that transfers made in violation of the rule
do not divest the reviewing court of its jurisdiction. Goodman v. Keohane, 633
F.2d at 1047; see Cohen v. United States, 593 F.2d 766, 767 n.2 (6th Cir.
1979); Hudson v. Hardy, 424 F.2d 854, 856 n.5 (D.C.Cir.1970).
18
While we do not condone such blatant violation of the appellate rules, we

nevertheless deny petitioner's motion because he has not been prejudiced by the
transfer.
19
The district court's order dismissing the petition is affirmed, and petitioner's
motion is denied. The mandate shall issue forthwith.
Oklahoma's Post-Conviction Procedure Act, Okla.Stat. tit. 22, 1080-1088

(1981), provides for both a post-conviction proceeding and an appeal from a
final judgment entered in that proceeding
Rule 23(a) provides:

Pending review of a decision in a habeas corpus proceeding commenced before
a court, justice or judge of the United States for the release of a prisoner, a
person having custody of the prisoner shall not transfer custody to another
unless such transfer is directed in accordance with the provisions of this rule.
Upon application of a custodian showing a need therefor, the court, justice or
judge rendering the decision may make an order authorizing transfer and
providing for the substitution of the successor custodian as a party.

David Paul Hammer v. Larry Meachum, Director Oklahoma Department of Corrections and J. M. Sunderland, 691 F.2d 958, 10th Cir. (1982)

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David Paul Hammer v. Larry Meachum, Director Oklahoma Department of Corrections and J. M. Sunderland, 691 F.2d 958, 10th Cir. (1982)

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691 F.

David Paul HAMMER, Petitioner-Appellant,

United States Court of Appeals,

David Paul Hammer, pro se.

Petitioner, an Oklahoma prisoner, pled guilty in May 1978 to charges of

In October 1980, petitioner filed a second application for post-conviction relief

Petitioner subsequently filed a petition for a writ of habeas corpus in the

Rec., Vol. I, at 16.

433 U.S. at 88 n.12, 97 S.Ct. at 2507 n.12.

Crouse, 344 F.2d 927, 929 (10th Cir. 1965).

Rule 23(a) prohibits the transfer of custody of a petitioner pending review of a

While we do not condone such blatant violation of the appellate rules, we

Oklahoma's Post-Conviction Procedure Act, Okla.Stat. tit. 22, 1080-1088

Rule 23(a) provides:

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