                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                            DEC 22 1997
                              FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    DALE H. HYLOK,

                Petitioner-Appellant,

    v.                                                    No. 97-5077
                                                     (D.C. No. 96-CV-43-B)
    RONALD WARD; ATTORNEY                                 (N.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



         Petitioner Hylok, appearing pro se, seeks to appeal from the district court’s

order dismissing without prejudice his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. We deny a certificate of probable cause and

dismiss the appeal. 1

*
      This order and judgment is not binding precedent, except under the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.
1
      Because petitioner filed his habeas corpus petition on January 22, 1996,
before the April 24, 1996 enactment date of the Antiterrorism and Effective Death
                                                                     (continued...)
      In September 1985, Mr. Hylok entered a plea of guilty to murder in the

first degree and received a sentence of life imprisonment. In 1994, he filed

various pro se motions in the state district court, including an application for

post-conviction relief, a motion to withdraw guilty plea, a motion for appointment

of counsel, and requests for a transcript and documents. Essentially, he sought to

withdraw his plea on the grounds that he had been denied (1) the right to appeal

his conviction, (2) the right to meaningful access to the Oklahoma courts, and

(3) the right to effective assistance of counsel, in that counsel provided improper

advice about the plea bargain, neglected to contact him during the ten-day period

in which he could have withdrawn the plea, and failed to advise him about his

right to appeal.

      Petitioner was not permitted to be present at the state district court

post-conviction hearing. His former appointed counsel, however, appeared

and stated:



1
 (...continued)
Penalty Act of 1996 (AEDPA), pre-AEDPA habeas corpus provisions apply to
this petition. See Demarest v. Price, No. 95-1535, 1997 WL 746288, at *1, *9
(10th Cir. Dec. 3, 1997). The relevant provisions, as in effect at the time the
petition was filed in district court, include the requirement of a certificate of
probable cause in order to proceed on appeal, rather than a certificate of
appealability, see United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir.
1997), and the requirement of exhaustion of available state remedies, pursuant to
28 U.S.C. § 2254(b), see Demarest, 1997 WL 746288, at *9.


                                          -2-
      I represented Mr. Hylock [sic] many years ago in a murder case here
      in Rogers County. If it please the court, I do not want to do that
      anymore. He killed Don Reynold’s wife. Don is my friend. I did it
      once and I don’t want to do it again.

      ....

      I just wanted to make sure that everyone understood that I did not
      want appointed again. It was almost more than I could stand the first
      time. . . .

R., Doc. 2, Ex. A at 3-4 (Trans. of 10/6/94 proceedings). The state district court

made no inquiries of counsel. It construed counsel’s request as a motion to

withdraw and granted the motion. The court then denied all of petitioner’s

motions, without taking any evidence or hearing any argument.

      In appealing to the Oklahoma Court of Criminal Appeals, petitioner

obtained a transcript of the post-conviction hearing, read counsel’s in-court

statement, and, allegedly for the first time, learned of counsel’s relationship

with the victim’s family. Petitioner filed a copy of the transcript in the appellate

court and argued, in his reply brief, that counsel’s statement amounted to an

admission of a conflict of interest. The appellate court affirmed the denial of

post-conviction relief on the ground of procedural default. It did not mention the

alleged conflict of interest.

      Petitioner then filed his pro se petition in federal district court, reasserting

his general ineffective assistance of counsel claims, and emphasizing the

perceived conflict of interest. The district court determined that petitioner had

                                          -3-
failed to exhaust his state court remedies on the issue of ineffective assistance of

counsel based on the conflict theory and dismissed the petition without prejudice.

      There is no question that the district court’s conclusion is correct. As we

have stated,

      [t]he exhaustion doctrine requires a state prisoner to fairly present
      his or her claims to the state courts before a federal court will
      examine them. “Fair presentation” of a prisoner’s claim to the state
      courts means that the substance of the claim must be raised there.
      The prisoner’s allegations and supporting evidence must offer the
      state courts “a fair opportunity to apply controlling legal principles to
      the facts bearing upon his constitutional claim.” Anderson v.
      Harless, 459 U.S. 4, 6 (1982).

Demarest, 1997 WL 746288, at *9 (additional quotations and citations omitted).

      The conflict issue transforms petitioner’s general ineffective assistance of

counsel claim and places it in a significantly different legal posture than in the

state court proceedings. See id., at *9-*10, *12-*13. “An attorney has no

absolute duty in every case to advise a defendant of his limited right to appeal

after a guilty plea,” but he must provide notification of “a claim of error . . .

made on constitutional grounds, which could result in setting aside the plea.”

Laycock v. New Mexico, 880 F.2d 1184, 1187-88 (10th Cir. 1989). The duty

arises “when ‘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) (quoting Marrow v. United States, 772 F.2d

525, 529 (9th Cir. 1985)).

                                           -4-
      Counsel’s statement at the post-conviction hearing has raised an arguable

basis for an entitlement to advice about appeal. A defendant has a Sixth

Amendment right to counsel free from conflicts of interest, which “‘extends to

any situation in which a defendant’s counsel owes conflicting duties to that

defendant and some other third person.’” United States v. Cook, 45 F.3d 388, 393

(10th Cir. 1995) (quoting United States v. Soto Hernandez, 849 F.2d 1325, 1328

(10th Cir. 1988)). Prejudice is presumed “if the defendant demonstrates that

counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of

interest adversely affected his lawyer’s performance.’” Strickland v. Washington,

466 U.S. 668, 692 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348

(1980)).

      The claim of ineffective assistance of counsel attributable to a perceived

conflict of interest is a constitutional claim that was not available to petitioner at

the time he initiated post-conviction proceedings in state court. The district court

properly dismissed the petition to allow the Oklahoma state courts the opportunity

to apply controlling legal principles to a record containing the facts relevant to

the claim. See Demarest, 1997 WL 746288, at * 9.

      Accordingly, petitioner has failed to make a substantial showing that the

district court’s ruling resulted in a “denial of an important federal right by

demonstrating that the issues raised are debatable among jurists, that a court


                                           -5-
could resolve the issues differently, or that the questions deserve further

proceedings.” Gallagher v. Hannigan, 24 F.3d 68, 68 (10th Cir. 1994) (citing

Barefoot v. Estelle, 463 U.S. 880 (1983)). Petitioner’s request for a certificate

of probable cause is therefore DENIED, and the appeal is DISMISSED. The

mandate shall issue forthwith.



                                                     Entered for the Court


                                                     Carlos F. Lucero
                                                     Circuit Judge




                                         -6-
