                      UNITED STATES COURT OF APPEALS
Filed 1/6/97
                             FOR THE TENTH CIRCUIT



    MARKIE K. GARNER,

                Petitioner-Appellant,

    v.                                                   No. 95-6353
                                                   (D.C. No. CIV-95-372-L)
    R. MICHAEL CODY,                                     (W.D. Okla.)

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.




         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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
**
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
      Petitioner appeals the denial of his request for habeas relief pursuant to 28

U.S.C. § 2254. In August 1993, petitioner pled guilty in Oklahoma state court to

auto theft, attempted escape, and destruction of public property, all after former

conviction of a felony. He did not seek to withdraw his guilty plea or take a

direct appeal within the statutory time period, but he later filed a habeas petition

in state court. Petitioner argued in his state petition that his convictions for

attempted escape and destruction of public property arose out of the same

transaction and, therefore, violated double jeopardy; that the prior convictions

used to enhance his sentence were not shown to be final; and that his trial counsel

was ineffective because he did not ask petitioner if he wanted to withdraw his

guilty plea within ten days and did not raise the double jeopardy issue. See R.

Vol. I, Doc. 13, Ex. B at 2. The trial court denied petitioner’s claims on the

merits. On appeal, the Oklahoma Court of Criminal Appeals determined that

petitioner had not established that he was denied an appeal through no fault of his

own. The court concluded, therefore, that petitioner had procedurally defaulted

his claims by failing to take a direct appeal.

      Petitioner then brought the present federal habeas action, in which he

asserted essentially the same claims that he raised in state court. Respondent

argued that petitioner’s claims were procedurally barred due to his failure to take

a direct appeal. The district court, relying on this court’s unpublished order and


                                          -2-
judgment in Thompson v. Champion, No. 93-6325, 1994 WL 589458, at **1 (10th

Cir. Oct. 20, 1994), held that Oklahoma’s procedural rule barring petitioner’s

claim for ineffective assistance of counsel did not constitute an “adequate” state

ground. 1 Therefore, the district court held petitioner had not defaulted his

ineffective assistance claim. The court considered the merits of petitioner’s

ineffective assistance claim, which included an assessment of petitioner’s double

jeopardy and sentencing enhancement claims, and, finding no merit, denied the

habeas petition.

      On appeal, respondent contends that we should recognize the procedural

bar applied by the Oklahoma Court of Criminal Appeals and affirm the denial of

relief on that basis. Respondent bases his argument on the following amendment

to 28 U.S.C. § 2254:

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to a judgment of a State court shall not be granted



1
       “The [adequate and independent state ground] doctrine applies to bar
federal habeas when a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural requirement. In these
cases, the state judgment rests on independent and adequate state procedural
grounds.” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). If a prisoner is
in custody pursuant to a state court judgment that rests on an adequate and
independent state ground, such as procedural default, then a federal court will not
address the merits of the prisoner’s federal claims, see id. at 730, 736, “unless the
prisoner can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice,” id. at 750.

                                         -3-
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim-

            (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.

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, sec. 104(3), § 2254(d), 110 Stat. 1214, 1219.

      Respondent argues that we should apply this new standard of review

retroactively and further contends that the new standard requires us to give

deference to Oklahoma’s determination that petitioner’s claims were barred,

unless we conclude that Oklahoma’s decision was a result of either an

unreasonable application of federal law as determined by the Supreme Court or an

unreasonable determination of the facts based on the state court record.

Respondent then concludes that, because the Supreme Court has not deemed

Oklahoma’s procedural rule unreasonable, and because the record supports the

Oklahoma court’s determination that petitioner did not establish that he failed to

take a direct appeal through no fault of his own, we must deem petitioner’s claims

procedurally barred.

      Respondent’s argument has one fundamental flaw: the standard of review

under 28 U.S.C. § 2254 (both before and after AEDPA), specifically relates to

                                         -4-
claims that were adjudicated on the merits in state court, and does not affect the

adequacy or independence of a state court’s procedural bar. 2 The Oklahoma

Court of Criminal Appeals made only one merits determination: that petitioner

did not fail to take an appeal through no fault of his own. The district court did

not refuse to apply the procedural bar based on its review of this determination,

however. Rather, it refused to apply the bar based on its own determination that

the state procedural rule did not constitute an “adequate” state ground that would

bar federal habeas review.

      In Thompson, 1994 WL 589458, at **1, a panel of this court concluded that

Oklahoma’s rule requiring ineffective assistance claims to be brought on direct

appeal was “still evolving,” and, therefore, did “not qualify as a ‘strictly or

regularly followed’ state practice.” We need not decide whether this view of

Oklahoma’s practice is still accurate, see, e.g., Berget v. State, 907 P.2d 1078,

1084 (Okla. Crim. App. 1995)(“This Court’s preferred method still requires such

a challenge [to the assistance of trial counsel] to be raised on direct appeal, not

through a collateral attack, or it is waived.”), because we have declared



2
       “A state court finding of procedural default is independent if it is separate
and distinct from federal law.” Maes v. Thomas, 46 F.3d 979, 985 (10th Cir.),
cert. denied, 115 S. Ct. 1972 (1995). A finding of procedural default is
considered “adequate” if it has been applied evenhandedly “‘in the vast majority’
of cases.” Id. at 986 (quoting Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir.
1991), cert. denied, 502 U.S. 1110 (1992)).

                                         -5-
Oklahoma’s procedural rule inadequate, when applied to claims of ineffective

assistance of trial counsel, on another basis, see Brecheen v. Reynolds, 41 F.3d

1343, 1363-64 (10th Cir. 1994), cert. denied, 115 S. Ct. 2564 (1995).

      In Brecheen, we noted that ineffective assistance of trial counsel claims

will frequently need additional factual development beyond that set forth in the

appellate record and, therefore, collateral proceedings will often be the only

effective forum in which a defendant can assert such a claim. Id. at 1363-64.

Therefore, when the claim at issue is one for ineffective assistance of trial

counsel, the general rule that claims not raised at trial or on direct appeal will

preclude federal habeas review “must give way because of countervailing

concerns unique to ineffective assistance claims.” Id. at 1363.

      The practical effect of this ruling [by the Oklahoma court] is to force
      [the petitioner] either to raise this claim on direct appeal, with new
      counsel but without the benefit of additional fact-finding, or have the
      claim forfeited under state law. This Hobson’s choice cannot
      constitute an adequate state ground under the controlling case law
      because it deprives [the petitioner] of any meaningful review of his
      ineffective assistance claim.

Id. at 1364.

      Therefore, based on our holding in Brecheen, the district court properly

concluded that petitioner’s claim of ineffective assistance of trial counsel was not

barred by his failure to raise it on direct appeal. See also Brewer v. Reynolds, 51

F.3d 1519, 1522 (10th Cir. 1995)(“[T]he failure to raise a claim of ineffective


                                          -6-
assistance of counsel on direct review will not preclude federal review of that

claim.”), cert. denied, 116 S. Ct. 936 (1996). Petitioner’s double jeopardy and

sentence enhancement claims would still be barred by his failure to take a direct

appeal, however, unless he can demonstrate either cause for his default and actual

prejudice, or that failure to review those claims would result in a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

      We turn, then, to the merits of petitioner’s ineffective assistance claim,

which, if established, could constitute cause for his procedural default, id. at 754.

Petitioner alleges that his trial counsel was constitutionally ineffective because

(1) he did not contact petitioner during the ten-day period following his guilty

plea, (2) he did not ask petitioner whether he wanted to withdraw his plea and file

an appeal, and (3) he did not advise petitioner of his double jeopardy claim. “An

attorney has no absolute duty in every case to advise a defendant of his limited

right to appeal after a guilty plea. Failure to notify the defendant of this limited

right is not in itself ineffective assistance.” Laycock v. New Mexico, 880 F.2d

1184, 1187-88 (10th Cir. 1989)(citations omitted). Counsel has a duty to inform

the defendant of the limited right to appeal from a guilty plea only “if the

defendant inquires about an appeal right,” or “[i]f a claim of error is made on

constitutional grounds, which could result in setting aside the plea.” Id. at 1188.

In the latter situation, counsel has a duty to inform the defendant of his appeal


                                          -7-
rights if “counsel either knows or should have learned of his client’s claim or of

the relevant facts giving rise to that claim.” Hardiman v. Reynolds, 971 F.2d 500,

506 (10th Cir. 1992)(quotation omitted).

      Here, the record reflects that the trial court advised petitioner of his right to

withdraw his guilty plea and file an appeal within ten days of the plea. R. Vol. I,

Doc. 18, Ex. C at 13. The trial court also advised petitioner that he had the right

to postpone transportation to the penitentiary, and remain in the local jail, during

those ten days, but petitioner waived this right. Id. The record does not reflect

that petitioner made any attempt to contact his counsel to inquire about an appeal,

nor, as the Oklahoma Court of Appeals noted, does it reflect that petitioner had

any desire to withdraw his plea or file an appeal within the statutory ten-day

period. Further, because we agree with the district court that petitioner’s double

jeopardy claim is without merit, petitioner has not demonstrated that his counsel

knew or should have known of the existence of constitutional error that could

have resulted in the setting aside of petitioner’s guilty plea. Therefore, we

conclude that counsel’s assistance was not constitutionally ineffective.

      Our conclusion on the merits of petitioner’s ineffective assistance claim

leads to the further conclusion that petitioner has not demonstrated cause for his

procedural default of his double jeopardy and sentencing enhancement claims.

Therefore, these claims will be barred unless petitioner can demonstrate that


                                          -8-
barring those claims would result in a fundamental miscarriage of justice. In the

noncapital context, this requires a showing of actual innocence, see United States

v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993)(citing Sawyer v. Whitley, 505

U.S. 333, 339-41 (1992)), which petitioner has not alleged.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

      The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   William F. Downes
                                                   District Judge




                                        -9-
