                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                          AUG 27 1997
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 MICHAEL LEE SWANSON,

           Petitioner - Appellant,
                                                        No. 97-6057
 vs.                                               (D.C. No. 96-CV-1033)
                                                        (W.D. Okla.)
 RONALD WARD, Warden,

           Respondent - Appellee.


                               ORDER AND JUDGMENT *


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



       Petitioner Michael Lee Swanson appeals the dismissal of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. We grant Mr. Swanson’s

application for a certificate of appealability, 28 U.S.C. § 2253(c)(1), and affirm.




       *
        This order and judgment is not binding precedent, except under the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. 34.1.9. The cause is therefore ordered submitted without oral argument.
                                        Facts

      Mr. Swanson is currently serving a sentence in state prison in Oklahoma

pursuant to his conviction on February 8, 1988, on several counts of possession

and distribution of a controlled substance. In July 1995, Mr. Swanson filed an

application for post-conviction relief in Oklahoma state court, which was denied.

He filed this petition on June 27, 1996, contending that his guilty plea was not

knowing and voluntary, and that he received ineffective assistance of counsel. On

December 16, 1996, a magistrate recommended that the petition be denied. See

28 U.S.C. § 636(b)(1)(B). The district court adopted the magistrate’s

recommendation on January 17, 1997.



                                     Discussion

      The state contends that Mr. Swanson’s petition should be dismissed

because he failed to object to the magistrate’s recommendation within ten days of

its issuance. See Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). As

Mr. Swanson has explained, however, his objections were filed within ten days,

albeit with the wrong file number. Under the circumstances, we will not apply

the waiver rule. See id. at 1413 (waiver rule does not apply “when the ends of

justice dictate otherwise”). We also note that the one-year period of limitation for

§ 2254 petitions does not apply to Mr. Swanson since he filed this petition on


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June 27, 1996. See United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.

1997). We thus proceed to the merits.

      Mr. Swanson argues first that his guilty plea was not knowingly and

voluntarily entered because the prosecution failed to inform him that three of the

eight convictions used to enhance his sentence were invalid. In order for a guilty

plea to be knowing and voluntary, it must be “done with sufficient awareness of

the relevant circumstances and likely consequences.” McMann v. Richardson,

397 U.S. 759, 766 (1970) (quotation omitted). Mr. Swanson contends that his

plea was not knowing and voluntary because had he known the convictions were

invalid, he would not have pled guilty. Thus, he argues, by not informing him of

the allegedly invalid convictions, the government violated his rights to due

process. See Smith v. Secretary of N.M. Dep’t of Corrections, 50 F.3d 801, 823

(10th Cir.), cert. denied, 116 S. Ct. 272 (1995).

      Mr. Swanson claims that three of the eight convictions supporting the

enhancement were overturned or modified, and that the sentencing court should

have considered two others as misdemeanors. However, even assuming Mr.

Swanson is correct, three convictions remain, which is enough to support

enhancement under Oklahoma state law. See Okla. Stat. Ann. tit 21, § 51 (West

Supp. 1997). Under § 51, the punishment would have been the same whether Mr.

Swanson had three, five, or eight previous convictions. The alleged invalidity of


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the convictions was thus irrelevant, and Mr. Swanson was sufficiently apprised of

all the relevant circumstances. McMann, 397 U.S. at 766. We are satisfied that

Mr. Swanson’s right to due process was not violated.

      Mr. Swanson next argues that his trial counsel was ineffective in failing to

investigate the validity of his prior convictions. To establish ineffective

assistance, Mr. Swanson must demonstrate that his counsel’s performance “fell

below an objective standard of reasonableness,” and that “there is a reasonable

probability that, but for counsel’s . . . errors, the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

As discussed above, the result of the proceeding would not have been different

had Mr. Swanson known of the allegedly invalid convictions, and we therefore

reject his claim of ineffective assistance.

      Finally, we note that Mr. Swanson also claims that the Strickland test

should not be applied in this case, as his attorney’s “chronic substance abuse and

chemical addiction,” Aplt. Br. at 13, rendered the entire process presumptively

unreliable. This claim was not raised in state court proceedings, and we thus

decline to hear it. Granberry v. Greer, 481 U.S. 129, 134 (1987).

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge


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