                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                           June 9, 2006
                              FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                           Clerk of Court

    JO H N D . C LA RK ,

               Petitioner-A ppellant,

      v.                                                    No. 05-6153
                                                      (D.C. No. CIV-04-739-L)
    M IKE M ULLINS, W arden,                                (W .D. Okla.)

               Respondent-Appellee.



                               OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




           This is an appeal from a district court judgment denying Petitioner-

Appellant John D. Clark habeas relief under 28 U.S.C. § 2254. W e granted a

certificate of appealability to review whether Clark’s guilty plea was knowing and

voluntary as to the maximum possible sentences he was facing. For the reasons

expressed below, we affirm.


*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                   B ACKGROUND

      In April 2002, after three prior felony convictions, Clark pleaded guilty to

eleven felony and three misdemeanor counts in three O klahoma criminal cases:

      • Case No. CF-2000-41 (possessing a controlled dangerous substance
      (CDS) with intent to distribute, maintaining a vehicle for keeping or
      selling a CDS, driving under suspension, and unlawfully possessing
      paraphernalia);
      • Case No. CF-2000-53 (possessing a CDS near a public park,
      possessing a firearm while committing a felony, possessing a firearm
      after a felony conviction, and unlawfully possessing paraphernalia);
      and
      • Case No. CF-2001-594 (shooting with intent to kill, shooting with
      intent to kill, possessing a firearm after conviction, unlawfully using
      a police radio, possessing a CDS, and possessing a sawed-off
      shotgun).

      During the plea colloquy, Clark indicated that he and his attorney had

“go[ne] through” a “Plea of Guilty Summary of Facts” form. Relevant State

Court Records, Ex. 1 at 5; id., Ex. 7 at 1. Among other things, the form listed the

criminal counts, recited that there was no plea agreement, and explained the

constitutional rights that Clark was giving up by pleading guilty. The form also

contained a section for the “range of punishment for the crime(s),” which had

only four lines of blanks to be completed showing the minimum and maximum

terms of imprisonment. Id., Ex. 7 at 2. Clark’s attorney completed the section,

apparently attempting to fit in the sentencing ranges for the five felonies and

three m isdemeanors in C ase N os. CF-2000-41 and CF-2000-53. As shown below ,

line one reads, “M inimum of 20yrs to a maximum of           and/or a fine . . . ,”



                                         -2-
which is near “CTS I, II & III” and “CF 2000-53.” Id. Near the notation “CF

200[0]-41,” line two reads, “M inimum of 20yrs to a maximum of 1yr and/or a

fine . . . ,” and is preceded by various count numbers that we cannot positively

discern. Id. Lines three and four read, “M inimum of        to a maximum of 1yr

and/or a fine . . . .” Id. The full section reads:




Id.

      In the bottom margin of the page, Clark’s attorney identified potential

sentences for the CF-2001-594 counts: “CT I & II - not less than 20yrs”; “Count

III 3yrs to life”; “Count IV 4yrs to life”; “Count V 6 yrs to life”; “Count VI 6 yrs

to life.” Id. On the form’s third page, above Clark’s signature, a checkmark

appears next to the form’s language, “M y attorney completed this form and we

have gone over the form and I understand its contents and agree with the

answers.” Id., Ex. 7 at 3.

      In response to his attorney’s queries during the plea colloquy, Clark

indicated that he had signed the form and understood that there was no plea

                                           -3-
agreement and would be no jury trial. The trial judge’s only inquiry before

accepting Clark’s plea was, “W hat about a factual basis to support all these

pleas?” Id., Ex. 1 at 6. In response, Clark’s attorney cited the probable cause

affidavits. The judge accepted Clark’s plea, ordered a presentencing investigation

report, and scheduled a sentencing date.

      In August 2002, after receiving the report, which apparently

“recommend[ed] maximum incarceration,” id., Ex. 2 at 6, Clark moved to

withdraw his guilty plea. At the hearing on the motion, Clark was represented by

new counsel, who argued that Clark “did not understand that he could not

withdraw his plea at any time, did not realize that he was giving up his right to a

jury, and all other rights for that matter,” Id., Ex. 2 at 3, “did not understand his

right to a preliminary hearing,” id. at 5, and that his “misunderstanding . . . would

rise to the level of coercion,” id. at 4. Clark’s attorney then asked him, “Does

that pretty much cover it?” Id. at 5. Clark had nothing to add. The court

summarily denied the motion and later sentenced Clark to 213 years in prison.

      On appeal to the O klahoma Court of Criminal Appeals (OCCA), Clark

argued through a new attorney that he was not advised of the consequences of

pleading guilty, including the punishment ranges. The OCCA summarily rejected

that argument. But the OCCA did reverse for lack of evidence Clark’s felony

conviction in Case No. CF-2000-41 for unlawfully maintaining a vehicle. Clark

v. O klahoma, Nos. C-2002-1188, C-2002-1190, C-2002-1191, slip op. at 2-3

                                           -4-
(Okla. Crim. App. July 10, 2003) (summary opinion). Thus, only one felony

remained in CF-2000-41: possession of a CD S w ith intent to distribute.

      Clark then filed a petition for a writ of habeas corpus in the federal district

court, stating that he would not have pleaded guilty if he knew that he was facing

more than twenty years imprisonment. The district court denied relief, ruling that

      [t]he circumstances surrounding [Clark’s] entry of his plea, including
      the fact that the charges in Case Nos. CF-2000-41 and CF-2000-53
      alleging the offenses were committed after three prior felony
      convictions had been pending for over two years, that [Clark] had
      been arraigned on the habitual offender charges in each of these
      cases and had appeared in court with his attorney on numerous
      occasions, and that [Clark] did not express any misunderstanding
      concerning the maximum possible punishment for these habitual
      offender charges, show that [Clark] understood the nature and
      consequences of his plea and voluntarily entered the plea.

Aplt. App., Report & Recommendation at 18. 1

      Clark appealed.




1
       The district court did, however, characterize the state “trial judge’s failure
to advise [Clark] at the plea proceeding of the range of punishment for each of the
felony offenses in Case Nos. CF-2000-41 and CF-2000-53 . . . [as] troubling.”
Aplt. App., Report & Recommendation at 18. W e agree. A plea colloquy serves
as a constitutional shield, “protect[ing] the defendant from an unintelligent or
involuntary plea.” M itchell v. United States, 526 U.S. 314, 322 (1999). Here, the
colloquy was nearly non-existent, with the state trial judge asking Clark only one
question. Nevertheless, our review of the record indicates that Clark’s plea was
not unintelligent or involuntary.

                                         -5-
                                     D ISCUSSION

                               I. Standards of Review

      W e review the denial of federal habeas relief de novo, applying the same

standards used by the district court. Jackson v. Ray, 390 F.3d 1254, 1259

(10th Cir. 2004), cert. denied, 126 S. Ct. 61 (2005). Under the A nti-Terrorism

and Effective Death Penalty Act (AEDPA ), a federal court may not grant habeas

relief on a claim adjudicated on the m erits in state court, unless the state court

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court,” 28 U.S.C.

§ 2254(d)(1), or “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” id. § 2254(d)(2).

                                   II. Due Process

      A guilty plea is constitutionally tolerable, provided it “represents a

voluntary and intelligent choice among the alternative courses of action open to

the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quotation omitted). In

accepting a guilty plea, a trial court must make sure that the accused has a full

understanding of what the plea connotes and of its consequences, including the

maximum penalty to which the accused may be exposed. See Boykin v. Alabam a,

395 U.S. 238, 243-44 (1969); Worthen v. M eachum, 842 F.2d 1179, 1182 (10th

Cir. 1988), overruled on other grounds, Coleman v. Thom pson, 501 U.S. 722

(1991). W hile an exhaustive exegesis on the merits of pleading guilty is not

                                          -6-
mandated, see Henderson v. M organ, 426 U.S. 637, 647 n.18 (1976), “the record

must affirmatively disclose that a defendant who pleaded guilty entered his plea

understandingly and voluntarily,” Brady v. United States, 397 U.S. 742, 747 n.4

(1970). “Whether a plea is voluntary is a question of federal [due process] law ,

but this legal conclusion rests on factual findings and inferences from those

findings.” Fields v. Gibson, 277 F.3d 1203, 1212 (10th Cir. 2002).

      W e conclude that the OCCA neither contravened or unreasonably applied

Supreme Court precedent nor employed an unreasonable factual determination in

rejecting Clark’s plea challenge. Clark’s failure to argue during the

plea-withdrawal hearing that he was unaware of the maximum possible sentences

suggests awareness of a substantial amount of prison time. Indeed, Clark had

earlier signed the plea form, admitting that he understood its contents. At the

very least, the form clearly shows that in Case No. CF-2001-594, Clark was

facing four felony counts, each carrying a possible life sentence, and two felony

counts for w hich the minimum sentences w ould each be twenty years. Thus, his

assertion that he would not have pleaded guilty had he known that he could

receive more than twenty years is specious.

      Furthermore, line one in the range-of-punishment section could be read as

indicating a minimum of twenty years each for felony counts one, two, and three

in Case No. CF-2000-53, which are the sentences Clark ultimately received in that

case. The absence of a maximum term on line one reflects that Oklahoma’s

                                         -7-
habitual offender statute recited no maximum penalty, see Okla. Stat. tit. 21, §

51.1(B) (Supp. 1999) (“Every person who, having been twice convicted of felony

offenses, commits a third, or thereafter, felony offenses . . . shall be punished by

imprisonment in the State Penitentiary for a term of not less than twenty (20)

years.”). 2 As for Case No. CF-2000-41, line two’s “M inimum of 20yrs” would

accurately reflect the sentence Clark received on the only viable felony count in

that case. Line two’s further notation of “to a maximum of 1yr” indicates the

maximum possible sentence for one of the misdemeanor counts. Nothing in the

range-of-punishment section shows that Clark was not apprised of the sentences

he ultimately received. And given his silence at the plea-withdrawal hearing

about sentencing ranges, we conclude that Clark’s guilty plea was knowing and

voluntary for purposes of A ED PA.

      The judgment of the district court is A FFIRM ED. Clark’s m otion to

proceed in forma pauperis is granted.

                                                     Entered for the Court


                                                     M ichael R. M urphy
                                                     Circuit Judge




2
      Section 51.1(B) was amended in 2001 to specify a maximum term of life
imprisonment.

                                          -8-
