                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 26, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 JWAN DWAIN WASHINGTON,

       Petitioner - Appellant,
                                                        No. 10-6005
 v.                                              (D.C. No. 09-CV-00139-HE)
                                                        (W.D. Okla.)
 RANDY WORKMAN, Warden,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, EBEL, and LUCERO, Circuit Judges.


      Petitioner-Appellant Jwan Dwain Washington, a state prisoner appearing

pro se, seeks a certificate of appealability (“COA”) allowing him to appeal the

district court’s order dismissing his petition for a writ of habeas corpus. To

obtain a COA, Mr. Washington must make a “substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S.

473, 483-84 (2000). Because Mr. Washington has not made such a showing, we

deny a COA and dismiss the appeal.

      In January 2007, Mr. Washington pled guilty in Oklahoma state court to

murder in the first degree. 2 R. 115-122, 137-38. The court sentenced him to life

in prison with the possibility of parole. Id. at 137. Shortly thereafter, Mr.
Washington moved to withdraw his plea, id. at 142, and the court denied the

motion, id. at 155. The Oklahoma Court of Criminal Appeals (“OCCA”) allowed

Mr. Washington to appeal out of time, id. at 170-72, but later denied his petition

for a writ of certiorari, 1 R. 19-20. Mr. Washington filed a timely petition for

habeas corpus under 28 U.S.C. § 2254. Id. at 4-18.

      In his state appeal and federal habeas petition, Mr. Washington has

consistently challenged the validity of his guilty plea on three grounds: 1) the

state trial court accepted his plea without a factual basis; 2) his plea was not

intelligently made but resulted from ignorance or confusion and without

deliberation; and 3) he was denied his Sixth Amendment right to conflict-free

representation at the hearing to withdraw his guilty plea. 1 R. 5, 24, 145-59;

Application for COA at 2-4. The magistrate judge recommended the denial of

Mr. Washington’s petition, finding that the OCCA’s decision was not contrary to

clearly established federal law. 1 R. 121-44. Mr. Washington objected to the

magistrate’s report with respect to his first two grounds for relief, and sought

leave to amend his petition to add a claim of ineffective assistance of counsel. Id.

at 145-59. The district court adopted the magistrate’s report, denied the motion to

amend because Mr. Washington failed to exhaust that claim in state courts, and

denied the habeas petition for essentially the same reasons as the magistrate gave.

Id. at 160-62.

      Mr. Washington has not shown that reasonable jurists would find it

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debatable whether his petition stated a valid claim of the denial of a constitutional

right. See Slack, 529 U.S. at 484. Although guilty pleas generally must have a

factual basis under federal or state law, courts are constitutionally required to

establish the factual basis of the plea only if the defendant claims factual

innocence when he pleads guilty. See North Carolina v. Alford, 400 U.S. 25, 37-

38 (1970). Because Mr. Washington did not claim factual innocence when he

pled guilty, his first ground for relief does not state a constitutional violation.

      On his second ground, Mr. Washington does not provide us “clear and

convincing evidence” to rebut the presumption of correctness of the OCCA’s

factual finding that his plea was “knowing, intelligent, and voluntary.” 28 U.S.C.

§ 2254(e)(1); 1 R. 20. The plea was not intelligent, Mr. Washington claims,

because he did not understand that malice aforethought was a material element of

his offense. 1 R. 151-54; Application for COA at 4. We presume that a

defendant’s attorney has explained the elements of the offense prior to the guilty

plea if the record supports such a presumption. See Allen v. Mullin, 368 F.3d

1220, 1240-41 (10th Cir. 2004). At his plea hearing, Mr. Washington

acknowledged his right to a jury trial where the state would have the burden to

prove all material elements of the crime beyond a reasonable doubt. Sentencing

Tr. at 9-10. He also told the court that he had a chance to discuss the murder

charge and any defenses with his attorneys. Id. at 11. He made the same

acknowledgments in his written guilty plea. 2 R. 115-18. These facts are not

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enough to rebut the OCCA’s factual finding.

      Mr. Washington’s third ground fails because he waived appellate review of

his original claim and did not exhaust his new claim of ineffective assistance of

counsel. Under our “firm waiver rule,” an appellant who fails “to make timely

objections to the magistrate’s findings or recommendations waives appellate

review of both factual and legal questions.” Moore v. United States, 950 F.2d

656, 659 (10th Cir. 1991). To avoid the waiver, the appellant’s objections to the

magistrate’s report must have been “sufficiently specific to focus the district

court’s attention on the factual and legal issues that are truly in dispute.” United

States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Mr.

Washington’s state petition for writ of certiorari and federal habeas petition

claimed as a third ground for relief the violation of his Sixth Amendment right to

conflict-free representation. 1 R. 11, 38-39. Mr. Washington argued that his

counsel at the hearing on his motion to withdraw his plea was impermissibly

conflicted because he also represented Mr. Washington at his arraignment and

was friends with two other attorneys who represented Mr. Washington. Id. at 38-

39. The magistrate found that the alleged conflict did not violate the Sixth

Amendment or, in the alternative, did not constitute ineffective assistance of

counsel. Id. at 138-43. In his objections to the magistrate’s report, Mr.

Washington dropped any discussion of his original conflict-free representation

claim and instead sought leave to amend his habeas petition to include an

                                         -4-
ineffective assistance claim. Id. at 158. Because the right to conflict-free

representation is “separate and distinct from the right to effective performance of

counsel,” Deiterman v. Kansas, 291 F. App’x 153, 161 (10th Cir. 2008), Mr.

Washington was required to object to the magistrate’s findings regarding his

conflict-free representation claim. Finally, reasonable jurists would not debate

whether the district court correctly denied Mr. Washington’s motion to amend.

See Slack, 529 U.S. at 484. Mr. Washington failed to exhaust his ineffective

assistance claim in state courts as 28 U.S.C. § 2254(b)(1)(A) requires, and has not

shown that he should enjoy any exception.

      We DENY a COA, DENY IFP, and DISMISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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