                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     February 6, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 M A RK W ILK ER SO N ,

                 Petitioner-A ppellant,                  No. 06-6265
          v.                                            (W .D. of Okla.)
 JUSTIN JONES, Director,                           (D.C. No. CV-06-423-C)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      M ark W ilkerson, an O klahoma state prisoner appearing pro se, seeks a

certificate of appealability (COA) to challenge the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus. For substantially the same

reasons set forth by the magistrate judge, we find that W ilkerson has failed to

make the requisite showing for a COA and therefore DENY his request.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         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.
                                    I. Background

      W ilkerson was charged along with two co-defendants in the D istrict Court

of Caddo County, Oklahoma w ith Robbery with a Dangerous W eapon,

Kidnapping, and Burglary in the First D egree. On November 4, 2003, the day his

trial was scheduled to begin, W ilkerson entered a guilty plea to all three charges.

W ilkerson subsequently filed a pro se motion to w ithdraw his plea. The court

conducted a hearing on the motion to withdraw on December 3, 2003 and denied

it. Pursuant to his plea agreement, W ilkerson was sentenced to twenty-five years

on each count, with the sentences to run concurrently.

      W ilkerson was appointed new counsel to pursue an appeal in state court.

His brief raised seven grounds for relief: (1) his guilty plea was not supported by

sufficient factual basis in the record; (2) his plea was involuntary because he did

not understand the law in relation to the facts; (3) his plea w as involuntary

because he was not advised of the correct ranges of punishment for the crimes; (4)

the trial court abused its discretion in denying his motion to withdraw the plea;

(5) the evidence did not support the charges; (6) he did not receive effective

assistance of counsel with respect to his guilty plea and motion to withdraw; and

(7) he was denied his Sixth Amendment right to the assistance of counsel in

pursuing his motion to w ithdraw.

      The Oklahoma Court of Criminal Appeals (OCCA) in an opinion entered on

January 19, 2005 concluded that the record contained a sufficient factual basis to

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support W ilkerson’s conviction for robbery with a dangerous weapon and

affirmed that conviction and sentence. The OCCA, however, found that the

record did not provide a sufficient factual basis to support W ilkerson’s

convictions for kidnapping or first-degree burglary. Nevertheless, the OCCA

found sufficient factual basis to support a charge of second-degree burglary.

      In accordance with these findings, the OCCA reversed the kidnapping

conviction with instructions to dismiss. Because the OCCA found that

W ilkerson’s plea was voluntary and “the record leaves no doubt Petitioner would

have voluntarily pled guilty to second-degree burglary, rather than first-degree

burglary, if his argument regarding the lack of a human being in the home had

been accepted at the trial court level,” Resp. Pet. Ex. B at 10–11, the court

determined that it w as not necessary to allow W ilkerson to withdraw his plea.

Instead, the OCCA modified the sentence for the burglary conviction to seven

years, to run concurrently with the other sentences, and a fine of $1,000. The

OCCA concluded this resolution rendered moot the remainder of W ilkerson’s

grounds for relief.

      W ilkerson’s subsequent application for post-conviction relief in the Caddo

County district court was denied because W ilkerson failed to raise the claims on

direct appeal. W ilkerson appealed the denial to the OCCA, which affirmed the

district court. The OCCA found that all issues W ilkerson raised in his direct




                                          3
appeal were barred by res judicata and that W ilkerson waived the claims he had

not raised in his direct appeal.

        W ilkerson filed a petition for federal habeas relief based on eight grounds:

(1) his plea was involuntary because of misrepresentation and ineffective

assistance of trial counsel; (2) his convictions violate double jeopardy; (3) his

plea was involuntary because he did not understand the law in relation to the

facts; (4) his plea was involuntary because he was not advised of the correct

punishment ranges; (5) the district court abused its discretion when it denied

W ilkerson’s motion to withdraw his plea; (6) the evidence did not support the

charges; (7) he did not receive effective assistance of counsel; and (8) he was

deprived of his right to counsel in pursuing his motion to withdraw his guilty

plea.

        The federal district court denied his petition, adopting the report and

recommendation of the magistrate judge. The court held that W ilkerson had

procedurally defaulted his first two claims (involuntary plea due to

misrepresentation of trial counsel and double jeopardy) because these claims were

not raised in W ilkerson’s direct appeal and were therefore waived in his state

post-conviction proceedings. The court held that W ilkerson’s fourth claim, that

he was not advised of the correct punishment ranges for kidnapping and first-

degree burglary, was mooted by the O CCA’s reversal and modification of those

convictions. Finally, the district court disposed of the remainder of W ilkerson’s

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claim s on the merits. The district court denied W ilkerson’s request for a COA

and to proceed in forma pauperis on appeal.

      W ilkerson raises the following grounds for relief on appeal to this court:

(1) he was deprived of his right to counsel in pursuing his motion to withdraw his

guilty plea; (2) he did not receive effective assistance of counsel; (3) his plea was

involuntary due to misrepresentation and ineffective assistance of trial counsel;

and (4) his conviction violates double jeopardy.

                                   II. Discussion

      To appeal the district court’s denial of his § 2254 petition, W ilkerson must

obtain a COA by making “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003).

Because we find that W ilkerson has not made such a showing, we deny COA and

dismiss the appeal.

      A. Procedural Default

      On habeas review, federal courts will not review claims that have been

defaulted in state courts on an independent and adequate state procedural ground,

unless the petitioner demonstrates cause for the default and actual prejudice, or

alternatively demonstrates a fundamental miscarriage of justice. Bousley v.

United States, 523 U.S. 614, 622 (1998); Hickman v. Spears, 160 F.3d 1269, 1271

                                          5
(10th Cir. 1998). The OCCA concluded that, under Oklahoma’s Post-Conviction

Procedure Act, W ilkerson waived all claims which could have been raised on

direct appeal but were not. See Okla. Stat. tit. 22, § 1086. The district court thus

determined W ilkerson procedurally defaulted two of his claims: that his plea was

involuntary due to trial counsel’s misrepresentation and that his convictions

violate double jeopardy. 1 W e agree with the district court.

      The OCCA’s application of its procedural bar rule is an independent and

adequate state law ground to default W ilkerson’s claims. W ilkerson asserts no

cause for the default other than his pro se status w hen he filed his motion to

withdraw. W ilkerson had appointed counsel for his direct appeal, and he has

show n no cause for his default at the appellate level. Nor has W ilkerson show n

the probability of actual innocence required for the fundamental miscarriage of

justice exception to a procedural bar. See Herrera v. Collins, 506 U.S. 390, 404

(1993).

      Because ineffective assistance claims can be difficult to raise on direct

appeal due to the self-interest of trial counsel, we apply more stringent review to

procedural bars of Sixth Amendment ineffective assistance of counsel claims. W e



      1
         Even if the double jeopardy claim were not barred, it is meritless given
the different elements of the robbery and burglary charges. See Blockburger v.
United States, 284 U.S. 299, 304 (1932) (“where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not”).

                                          6
will not apply a procedural bar to an ineffective assistance of counsel claim

unless the petitioner could “obtain an objective assessment of trial counsel’s

performance” and “adequately develop the factual basis of his claims of

ineffectiveness” in the state court appeal. English v. Cody, 146 F.3d 1257, 1263

(10th Cir. 1998).

         W ilkerson had different trial and appellate counsel, so he had an

opportunity to obtain an objective assessment of his trial counsel’s performance.

See id. at 1264. W ilkerson also had a chance to adequately develop a factual

basis for his claim in state court. Wilkerson claimed in his direct appeal that his

trial counsel was ineffective and his guilty plea involuntary for several other

reasons, but he failed to raise the specific allegation he raises here— that his trial

counsel had “tricked” him into pleading guilty by withholding information about

possible defenses and by telling him he would serve only seven years of his

twenty-five year sentence. Although W ilkerson’s claim of misrepresentation by

trial counsel depends on evidence not in the record available to the OCCA, the

procedural bar will apply if W ilkerson could have expanded the appellate record

to include his allegations. See Spears v. M ullin, 343 F.3d 1215, 1252 (10th Cir.

2003).

         Oklahoma criminal procedure rules permit the OCCA to remand disputed

factual issues to the trial courts for evidentiary hearings in appropriate cases.

Berget v. O klahom a, 907 P.2d 1078, 1085 (Okla. Crim. App. 1995). The state

                                            7
bears the burden of proving that this procedural mechanism is adequate to develop

the factual basis for ineffective assistance claims, but W ilkerson must

nevertheless “allege w ith specificity why the state procedural rules were

inadequate to have permitted him to raise the omitted claim on direct appeal.”

Spears, 343 F.3d at 1252. W ilkerson argues only that his appellate counsel did

not know of the issue. W ilkerson’s appellate counsel did, however, raise

numerous issues concerning the advice of W ilkerson’s trial counsel, and

W ilkerson himself in his pro se motion to withdraw his plea presented allegations

concerning his counsel’s advice. W ilkerson has not alleged why OCCA’s rules

were inadequate to permit him to raise the specific claim on direct appeal that his

trial counsel misled him in plea consultations. Accordingly, we are procedurally

barred from considering this claim in W ilkerson’s federal habeas petition.

      B . W ilkerson’s R eview able Claim s

      W e do not think the district court’s analysis of W ilkerson’s remaining

claims is debatable. W ilkerson argues both that he was deprived of his right to

counsel during his pro se motion to w ithdraw and that his counsel was otherwise

ineffective.

      To prevail on these Sixth Amendment claims, W ilkerson must show

prejudice. See Strickland v. Washington, 466 U.S. 668, 692 (1984). First, the

absence of counsel on W ilkerson’s pro se motion to withdraw was not prejudicial

because W ilkerson had appellate counsel and obtained relief on two of the three

                                          8
convictions entered against him. W ilkerson, moreover, is not entitled to a

presumption of prejudice because of a “complete failure of the adversary system”

when he lacked counsel only for his motion to withdraw. See Bell v. Cone, 535

U.S. 685, 697 (2002) (applying the Strickland test when petitioner alleged

absence of counsel only at specific points in the proceeding).

         Second, W ilkerson failed to show prejudice regarding the other errors he

imputes to his trial counsel: we see no reasonable probability that W ilkerson

w ould not have entered a guilty plea but for counsel’s alleged errors when we

consider the plea colloquy, the potential testimony of W ilkerson’s co-defendant

against him, and the OCCA’s findings on appeal. See H ill v. Lockhart, 474 U.S.

52, 59 (1985).

         Lastly, the OCCA rejected the claim in W ilkerson’s direct appeal that his

plea was not knowing and voluntary. In doing so, the OCCA relied on facts

which are presumptively correct under 28 U.S.C. § 2254(e)(1). Wilkerson offers

us no reason to doubt that presumption. None of the grounds asserted by

W ilkerson rises to the level of a substantial showing of a denial of a constitutional

right.




                                            9
                                III. Conclusion

      For the reasons stated, we DENY the application for COA, DENY the

motion to proceed in forma pauperis, and DISM ISS the appeal.



                                                  Entered for the Court

                                                  Timothy M . Tymkovich
                                                  Circuit Judge




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