                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 12 2001
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 RANDOLPH TYLER HOFFMAN,

           Petitioner - Appellant,
 vs.                                                     No. 00-6382
                                                   (D.C. No. CIV-00-459-R)
 L.L. YOUNG, Warden; ATTORNEY                            (W.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Petitioner-Appellant Randolph Tyler Hoffman, an inmate appearing through

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

district court’s order denying relief on his petition for a writ of habeas corpus, 28

U.S.C.A. § 2254. Because Mr. Hoffman has failed to make “a substantial


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, 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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
showing of the denial of a constitutional right” as required by 28 U.S.C.A. §

2253(c)(2), we deny his request and dismiss the appeal.

      In 1998, Mr. Hoffman entered a “blind” guilty plea to two counts of first

degree rape, one count of rape by instrumentation, two counts of forcible oral

sodomy, and one count of kidnapping. Mr. Hoffman was sentenced to twenty

years on each of the first degree rape charges, and to ten years on each of the

remaining four charges, with the sentences to run consecutively for a total of

eighty years. Although Mr. Hoffman completed and signed a “Plea of Guilty -

Summary of Facts” form (“SOF”) related to his guilty plea, Aplt. App. at 190–95,

it was decided at a sidebar conference that a court reporter would not be

necessary for the plea or sentencing hearings. Id. at 181. Mr. Hoffman filed a

motion to withdraw his guilty plea, asserting ineffective assistance of counsel and

that his plea was involuntary because he did not understand its consequences.

The trial court denied this motion after a hearing, and the Oklahoma Court of

Criminal Appeals (OCCA) denied Mr. Hoffman’s subsequent certiorari appeal. In

a summary opinion, the OCCA rejected his claims. In determining that the

district court did not abuse its discretion in denying the motion to withdraw, the

OCCA held in pertinent part that Mr. Hoffman’s plea was entered knowingly and

voluntarily, and the consecutive sentences imposed were not excessive.

      Mr. Hoffman filed his federal habeas petition claiming (1) ineffective


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assistance of counsel, (2) the trial court abused its discretion in denying the

motion to withdraw his guilty plea due to the lack of a transcript of the plea and

sentencing hearings, and (3) his guilty plea was involuntary. The district court

assigned the case to a magistrate judge, who issued a Report and

Recommendation (“R & R”) concluding that Mr. Hoffman’s petition should be

denied. Mr. Hoffman objected to the R&R on the ground that the lack of a

transcript of his guilty plea and sentencing proceedings precluded meaningful

review of his claims and neither the trial court nor defense counsel insured that

his due process rights were protected. Adopting the R & R in its entirety, the

district court denied the petition.

      On appeal, Mr. Hoffman raises the same issues as below, arguing that (1)

his constitutional right to effective assistance of counsel was violated during his

state trial, and subsequent judicial rejection of this claim is against the weight of

federal law and should be reversed, and (2) when the state trial court denied [his]

request to withdraw his plea despite the fact that no transcript was made of the

proceedings, [his] right to due process on appeal and before the district court was

violated. Aplt. Br. at 1-2; 8, 11. Mr. Hoffman also mentions that his sentence

violated the Eighth Amendment, id. at 7, 21, and although the district court

rejected this issue, we deem it waived for want of briefing. See Adler v. Wal-

Mart Stores, 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately


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briefed in the opening brief are waived . . . .”).

      To satisfy due process, a guilty plea must be knowing, intelligent and

voluntary. Boykin v. Alabama, 395 U.S. 238, 242 (1969). A guilty plea can be

voluntary only where the defendant is aware of the likely consequences of his

plea. Brady v. United States, 397 U.S. 742, 748 (1970). Merely because a

defendant did not correctly assess all of the relevant factors in deciding whether

to plea does not render a plea unintelligent. Id. at 757.

      At the withdrawal hearing, Mr. Hoffman testified, contrary to what is

clearly set forth in Paragraph 19 of the SOF, that he thought a blind plea and a

plea bargain were equivalent and that he thought he would receive a twenty-year

sentence. Aplt. App. at 185. His counsel testified that Mr. Hoffman was

confused about what consecutive sentences were. Id. at 179.

      Although a transcript is of great value in determining whether a guilty plea

is knowing and voluntary, it is not the exclusive means. In some circumstances,

reliance upon other documentary evidence such as the questions and answers to a

form may be sufficient to make that determination. Moore v. Anderson, 474 F.2d

1118, 1119 (10th Cir. 1973). In other cases, where the allegations are sufficient

to establish a due process violation, an evidentiary hearing may be required.

Blackledge v. Allison, 431 U.S. 63, 77 (1977); Beavers v. Anderson, 474 F.2d

1114, 1117 (10th Cir. 1973). That evidentiary hearing was held before the state


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district court which denied the motion to withdraw containing the same grounds

as the federal habeas petition, and that decision was upheld by the OCCA.

Though the evidence conflicts, the determination of the state courts is supported

by record evidence. Aplt. App. at 190-195 (SOF); 187-88 (trial judge’s

recollection of plea proceedings); 183 (defense counsel’s recollection of plea

proceedings). It does appear that Mr. Hoffman was advised of the maximum

terms associated with each count, including those counts which had ranges of

punishment from five years to life. Though his counsel indicated to him that the

prosecutor thought that the least amount of time would be twenty years, that is far

short of a promise.

      We agree with the magistrate judge that Mr. Hoffman has failed to show

that the state court's decision "was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States," 28 U.S.C. § 2254(d)(1), Williams v. Taylor, 529 U.S.

362, 412-413 (2000), or "was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding," § 2254(d)(2). In

addition, “a determination of a factual issue made by a State court shall be

presumed correct,” and Mr. Hoffman has not rebutted that presumption insofar as

the historical facts concerning the plea proceeding, implicitly found by the

Oklahoma courts.


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      Mr. Hoffman also raises a claim of ineffective assistance of counsel,

pointing to his defense counsel’s (1) failure to explain the consequences of a

blind plea, (2) failure to explain the potential sentence, (3) waiver of Mr.

Hoffman’s right to a transcript; (4) continuation of the proceedings despite

counsel’s knowledge of Mr. Hoffman’s lack of understanding of the

consequences, and (5) failure to ensure that Mr. Hoffman’s hearings were

conducted in a timely manner. Aplt. Br. at 8–9. These arguments fail to

demonstrate 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), and therefore compel us to deny Mr. Hoffman’s claim.

      We treat ineffective assistance of counsel claims as mixed questions of law

and fact and review them de novo. Smith v. Gibson, 197 F.3d 454, 461 (10th Cir.

1999). As noted by the district court, the record indicates that Mr. Hoffman

personally filled out the SOF, Aplt. App. at 337, and we conclude that the form

was sufficient to communicate to Mr. Hoffman the consequences of his guilty

plea. Id. at 191. As discussed above, a transcript of a guilty plea proceeding does

not carry the constitutional weight necessary to find that counsel’s waiver of the

right to a court reporter results automatically in a finding of deficient

performance. Finally, Mr. Hoffman’s brief fails to provide any way in which

defense counsel could have expedited the proceedings and also fails to establish


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that any delays were attributable to deficient performance on the part of Mr.

Hoffman’s defense counsel.

       Even assuming deficient performance on the part of Mr. Hoffman’s

counsel, the evidence in the record indicates that Mr. Hoffman understood the

nature and consequences of his plea, id. at 190–94 (SOF); id. at 188 (statement by

trial judge that Mr. Hoffman “understood well enough to know he was subjecting

himself to the possibility of a life sentence . . . .”), and therefore fails to establish

the prejudice required for a successful ineffective assistance of counsel claim.

Strickland v. Washington, 466 U.S. 668, 691–93 (1984). In addition, on these

facts he cannot demonstrate that but for his counsel’s error, he would not have

pleaded guilty, but would have insisted on going to trial. Hill v. Lockhart, 474

U.S. 52, 59 (1985). As the trial judge noted, Mr. Hoffman must have known that

he was subjecting himself to several life terms and given the heinous nature of the

crime, probably received less than what a jury would have imposed. See Okla.

Stat. Ann. tit. 22, §§ 926.1, 928.1 (West. Supp. 2000); Aplt. App. at 188.

       We DENY Mr. Hoffman’s request for a COA and DISMISS the appeal.


                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge



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