                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 21 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 BRANDON PAUL OWENS,

          Petitioner - Appellant,
 v.
                                                        No. 02-6170
                                                  (D.C. No. 01-CV-1388-R)
 REGINALD HINES, Warden and THE
                                                      (W.D. Oklahoma)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

          Respondents -Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and HARTZ, Circuit Judges.




      Brandon P. Owens, a pro se prisoner, seeks a certificate of appealability

from the district court’s denial of his petition for habeas relief. Owens pled

guilty and was convicted of Feloniously Carrying a Weapon, After Former



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Conviction of Two or More Felonies, and he received a twenty-year prison

sentence. After the statutory period for withdrawing his guilty plea had expired,

Owens filed a petition for state post-conviction relief, asserting three grounds for

relief: (1) denial of a direct appeal through no fault of his own; (2) denial of his

right to counsel as a result of a conflict of interest; and (3) denial of his due

process and equal protection rights by enhancement of his sentence. Owens v.

State, No. PC-2001-704, slip op. at 1 (Okla. Crim. App. Aug. 17, 2001). The

Oklahoma Court of Criminal Appeals (OCCA) denied relief, id. at 4, rejecting

Owens’s first ground on the merits and the second and third grounds as

procedurally barred. The provisions of the Anti-Terrorism and Effective Death

Penalty Act (AEDPA) apply to this petition.

      As to the first and third grounds, we deny a certificate of appealability

substantially for the reasons given by the district court.

      In his second ground for relief, Owens argues that he was denied effective

assistance of trial counsel when his attorney “enticed” him into pleading guilty by

stating that if he did not accept the offer the prosecutor would withdraw from plea

negotiations and “pick a redneck jury.” (Aplt. B. 10.) Owens argues that such

enticement amounts to a conflict of interest. The OCCA did not consider the

merits of this claim because it concluded that this claim was procedurally barred

because it was not raised on direct appeal. The district court denied habeas relief


                                          -2-
on this claim, reasoning that it was procedurally barred because “the Petitioner

was aware of the factual basis for this claim, and could have raised it as a ground

for withdrawal of his plea.” (Slip op. at 2 (citing English v. Cody, 146 F.3d 1257,

1264 (10th Cir. 1999).) The district court concluded alternatively that this claim

fails on the merits.

      We assume, for purposes of this opinion, that Oklahoma’s procedural bar of

this claim is not adequate to bar our consideration of this claim, and therefore that

our review of its merits is de novo. See Johnson v. Gibson, 169 F.3d 1239, 1252

(10th Cir. 1999) (deciding petitioner’s claim on the merits after assuming that

claim is not procedurally barred). We conclude that Owens has failed to

demonstrate that counsel’s performance amounted to ineffective assistance of

counsel. See Fields v. Gibson, 277 F.3d 1203, 1216 (10th Cir. 2002) (holding

that counsel did not render deficient performance in convincing the petitioner to

plead guilty, because counsel “did not coerce Fields but merely ‘strongly urged’

him to do what they thought was in his best interest ”). Owens alleges only that

counsel advised him that, if he rejected the plea offer, the prosecution would not

make other offers and that the jury composition would be unfavorable. Because

such advice plainly does not amount to coercion, see id. at 1210, 1212-14 (finding

no coercion where counsel “pulled out all the stops” to convince her client to

plead guilty, telling her client that if he did not plead guilty he would be


                                          -3-
sentenced to death, whereas if he pled guilty he very likely would not, and

enlisting family members to urge him to plead guilty), Owens’s claim is without

merit.

         Liberally construed, Owens’s petition also argues that counsel was

ineffective for failing to argue that Owens was ineligible for the twenty-year

sentence he received. We assume for purposes of this appeal that this claim was

exhausted and that Oklahoma’s procedural bar is not adequate to foreclose our de

novo consideration of this claim. Owens was sentenced under 21 O.S. § 51(B),

which provided a sentence of “not less than” twenty years for “[e]very person

who, having twice been convicted of felony offenses, commits a third . . . felony

offense[] within ten (10) years of the date following the completion of the

execution of the sentence.” 1 Owens contends that counsel should have argued

that § 51(B) did not apply to him because he had not yet completed his term of

imprisonment on his prior felony convictions. We find no ineffective assistance

of counsel. Owens’s eligibility for § 51(B) enhancement began after he was

“twice . . . convicted of felony offenses.” See Kirkendall v. State, 725 P.2d 882,

884 (Okla. Crim. App. 1986) (“When an appeal has not been perfected within six



         21 O.S. § 51 was repealed effective July 1, 1999 (Owens was sentenced
         1

in April, 2000) and replaced with 21 O.S. § 51.1. The new § 51.1(B) is
substantially identical in all relevant respects to the provision under which Owens
was sentenced.

                                          -4-
months of the judgment and sentence as provided by law, that judgment and

sentence may be used to enhance punishment in a subsequent trial under 21

O.S.1981, § 51.”). 2 Contrary to Owens’s present argument, the statutory phrase

“within ten (10) years of the date following the completion of the execution of the

sentence” describes only the end point, and not the starting point, of § 51(B)

eligibility. Accordingly, counsel’s decision not to challenge Owens’s § 51(B)

eligibility was not deficient performance.



                                 CONCLUSION

      For the foregoing reasons, a certificate of appealability is DENIED and the

appeal is DISMISSED.


                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




      2
        Owens does not allege that, at the time he received his present sentence,
he had perfected an appeal as to his prior convictions or less than six months had
passed since entry of judgment.

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