                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 18, 2015
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



 JIMMY DEWAYNE JONES,

             Petitioner - Appellant,
                                                       No. 15-5020
 v.                                        (D.C. No.4:12-CV-00138-GFK-TLW)
                                                      (N.D. of Okla.)
 JASON BRYANT, Warden,

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.


      Jimmy Jones seeks a certificate of appealability (COA) to appeal the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring COA to appeal denial of § 2254 relief). Exercising

jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss the appeal.

                                I. Background

      Jones was charged with burglary in Oklahoma state court. His sentencing

range was seven to twenty years’ imprisonment. The state offered a plea

agreement calling for ten years, but Jones declined on counsel’s advice. Counsel


      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
explained that by entering a blind plea of no contest instead of pleading guilty,

Jones would be eligible for a future “judicial review” through which the court

could modify his sentence. See Okla. Stat. tit. 22, § 982a(A) (2011).

Importantly, counsel gave this advice under the impression that Jones had a single

prior felony conviction. He learned this from the face of the criminal

information 1 and from conversations with Jones himself. Jones took the advice

and entered a blind plea.

      At the plea hearing, the court requested a pre-sentence investigation report

from the Oklahoma Department of Corrections. The report revealed that Jones

had not one, but two prior felony convictions. Relying on this criminal history,

the court imposed the maximum twenty-year sentence allowed by law. In

addition, because Jones had been in custody for the second, previously unknown

conviction within ten years of the instant sentencing date, he was ineligible for

judicial review. See id.

      Jones moved to withdraw his blind plea, but was denied. He next sought

relief in the Oklahoma Court of Criminal Appeals (OCCA), alleging ineffective

assistance of counsel under the Sixth and Fourteenth Amendments of the federal

Constitution. The OCCA rejected his claim in a summary opinion. Jones then

      1
         The state struck the prior conviction from the information when it could
not produce a judgment and sentence proving it. Had the prior conviction
remained, Jones’s sentencing range would have been higher. But more important
to this petition is that defense counsel thought the conviction referenced in the
information was Jones’s only prior felony.

                                        -2-
brought this pro se 2 habeas action. Applying the deferential standards of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district

court denied his petition because it held the OCCA’s ruling was not contrary to

clearly established federal law.

                                   II. Analysis

      To obtain a COA, Jones must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires demonstrating “that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Under AEDPA, a federal court grants habeas for a claim that a state court

adjudicated on the merits only where the adjudication

             (1) resulted in a decision that was contrary to, or involved
             an unreasonable application of, clearly established Federal
             law, as determined by the Supreme Court of the United
             States; or

             (2) resulted in a decision that was based on an
             unreasonable determination of the facts in light of the
             evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

      This deferential standard applies even to summary opinions by a state

court, in which case we determine whether the “result contravenes or



      2
        We construe pro se arguments liberally. United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009).

                                         -3-
unreasonably applies clearly established federal law, or is based on an

unreasonable determination of the facts in light of the evidence presented.”

Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999).

      Jones’s sole argument is that counsel was ineffective in failing to

investigate the number of Jones’s prior offenses before advising him to reject the

ten-year plea offer. He asserts that it was unreasonable for counsel to rely solely

on the criminal information and Jones’s representation. He further contends that

he was prejudiced by the resulting twenty-year sentence. But Jones cannot show

that the OCCA’s summary denial of this claim was contrary to clearly established

federal law.

      To succeed on a claim for ineffective assistance of counsel, Jones must

show both that counsel’s performance was deficient and that the deficiency

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Performance is deficient where the representation falls “below an objective

standard of reasonableness.” Id. at 688. In making this assessment, “specific

guidelines are not appropriate.” Id. Counsel’s “decision not to investigate must

be directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.” Id. at 691. Accordingly, our

review under AEDPA is “doubly deferential.” Yarborough v. Gentry, 540 U.S. 1,

6 (2003).




                                         -4-
      We find no Supreme Court precedent clearly establishing that counsel

performed unreasonably. Counsel knew that the state had uncovered only one

prior felony conviction. Given that it was in the state’s interest to find all

previous convictions at the charging phase and before plea-bargaining, there was

reason to trust that its investigation was thorough. Jones also told counsel that he

had one prior felony conviction. Jones argues that counsel should not have

trusted him because he was unaware of the significance of his prior convictions.

But his word matched what counsel had already learned from the state at a time

when the state had every reason to discover and disclose all of Jones’s prior

convictions. Thus, it is not clear that “the known evidence would [have] lead a

reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527

(2003). And the Supreme Court has rejected the proposition that “it is prima

facie ineffective assistance for counsel to abandon their investigation of the

petitioner’s background after having acquired only rudimentary knowledge of his

history from a narrow set of sources.” Cullen v. Pinholster, 131 S. Ct. 1388,

1406 (2011). Applying double deference under AEDPA, we cannot conclude that

the OCCA’s disposition was unreasonable.




                                          -5-
                        III. Conclusion

For the foregoing reasons, we deny a COA and dismiss the appeal.

                                      ENTERED FOR THE COURT

                                      Timothy M. Tymkovich
                                      Circuit Judge




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