                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               DEC 4 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 MICHAEL JEFFRIES,

          Petitioner-Appellant,

               v.                                          No. 97-6229
                                                       (D.C. No. 97-CV-580)
 STEVE HARGETT,                                            (W.D. Okla.)

          Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


      After examining the briefs and 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Petitioner Michael Jeffries, appearing pro se, requests a certificate of

appealability to appeal the district court’s dismissal of his motion to vacate, set

aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2254. This court will


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
issue a certificate of appealability when a petitioner makes a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). We deny the

request and dismiss the appeal.

      Jeffries pleaded guilty to armed robbery after conviction of two or more

felonies in 1988 and was sentenced to life imprisonment. 1 Jeffries failed to

withdraw his guilty plea within the ten-day period allowed by Oklahoma law, but

on May 16, 1988, he filed a request to withdraw his guilty plea, which was

denied. On October 12, 1990, he sought review from the Oklahoma Court of

Criminal Appeals, arguing the district court failed to inquire into the factual basis

for his guilty plea and imposed an excessive sentence, which was denied. Jeffries

filed a second request for review, arguing the information charging him with

armed robbery was insufficient to establish subject matter jurisdiction and that he

was denied effective assistance of counsel at trial and on appeal. The Oklahoma

Court of Criminal Appeals rejected his claims and affirmed the district court’s

decision to deny post-conviction relief.




      1
         Jeffries pleaded guilty to two counts of second-degree burglary in October 1984,
to concealing stolen property in February 1985, and to three counts of second-degree
burglary in June 1985. He did not file a direct appeal from any of the convictions but, on
May 28, 1996, he filed a request for an appeal out of time, arguing his prior convictions
should be set aside because he was not advised he could withdraw his guilty plea or
appeal. The state court denied his request, finding he had been advised of his rights. The
Oklahoma Court of Criminal Appeals affirmed the denial.

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      Jeffries filed his § 2254 petition on April 17, 1997, contending he was not

advised of his right to withdraw his guilty plea or to appeal and that he was

denied due process by the court’s denial of his request to appeal out of time. The

district court adopted the magistrate’s findings and recommendation and denied

the petition. As a basis for issuing a certificate of appealability, Jeffries contends

his constitutional rights were violated when his prior convictions were used to

enhance his present sentence because he was not advised of his right to withdraw

his guilty plea or to appeal his conviction.

                              In-custody Requirement

      Jeffries argues his prior convictions used to enhance his sentence are

invalid. He acknowledges the sentences for the prior convictions have expired

and that he is no longer “in custody” for purposes of the prior convictions.

Nevertheless, he argues he is entitled to relief based on the expired convictions

because they were used to enhance the sentence he is presently serving.

      A habeas petitioner may not directly challenge a conviction where the

sentence has fully expired. Maleg v. Cook, 490 U.S. 488, 490-91 (1989). Despite

the collateral consequences of such a prior conviction, such a petitioner is no

longer “in custody” for purposes of federal law. Id. However, a petitioner may

challenge an unexpired conviction where the sentence has been enhanced by a

fully-expired conviction by attacking the constitutionality of the underlying fully-


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expired conviction. Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir. 1990).

Such an indirect attack on an expired conviction is permissible despite the fact

that a direct attack on the expired sentence is prohibited. Id. When a pro se

petitioner attacks the validity of an expired sentence and that expired sentence has

been used to enhance the conviction for which petitioner is then in custody, this

court liberally construes the petition as an attack on the unexpired sentence. See

Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992) (appropriate to liberally

construe pro se petition “as challenging his present confinement even though the

essence of his attack was the alleged unconstitutionality of the prior predicate

convictions”). Because Jeffries’ prior convictions were used to enhance his

unexpired armed robbery conviction, Jeffries may challenge those prior

convictions in his habeas petition.

                       Failure to Exhaust State Remedies

      Although Jeffries is “in custody” for purposes of his armed robbery

conviction and may therefore challenge the allegedly unconstitutional nature of

his prior guilty pleas, he has not made such a challenge in state court. In state

court, Jeffries has argued (1) the court committed error during the plea hearing in

which he pleaded guilty to armed robbery; (2) he received an excessive sentence;

(3) the information was insufficient to establish subject matter jurisdiction; and

(4) he received ineffective assistance of counsel at trial and on appeal. Since


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Jeffries has not presented the instant claim in state court, he has failed to exhaust

his available state remedies. See 28 U.S.C. § 2254(b); Steele v. Young, 11 F.3d

1518, 1523 (10th Cir. 1993).

                                Procedurally Barred

      “On habeas review, we do not address issues that have been defaulted in

state court on an independent and adequate state procedural ground, unless cause

and prejudice or a fundamental miscarriage of justice is shown.” Id. at 1521

(citing Coleman v. Thompson, 501 U.S. 722 (1991)). Oklahoma law requires

Jeffries to present his claim regarding invalidity of his prior convictions in his

first request for post-conviction relief. See Okla. Stat. tit. 22, § 1086 (all

possible grounds for relief must be raised in original application for post-

conviction relief); see also Castro v. State, 880 P.2d 387, 388 (Okla. 1994). His

sentence enhancement claim was defaulted in state court on an independent and

adequate state procedural ground when he failed to include it in his first request

for post-conviction relief. See Steele, 11 F.3d at 1522, 1524.

      Moreover, Jeffries has failed to show cause for the default, or actual

prejudice resulting from violation of federal law, or that the federal court’s failure

to review the claim will result in a fundamental miscarriage of justice. See id. at

1522. As the magistrate concluded, it was in Jeffries’ best interests to plead

guilty to the charges and obtain the benefit of the plea bargain. The “fundamental


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miscarriage of justice” burden is satisfied when a petitioner produces facts that

amount to a “colorable showing of factual innocence.” Kuhlmann v. Wilson, 477

U.S. 436, 454 (1986). Although Jeffries’ sentence was enhanced on the basis of

his underlying convictions, he has not even attempted to show he is factually

innocent of those crimes.

                            Claim Fails on the Merits

      Even if Jeffries’ claim was not procedurally barred, it would fail on the

merits. It is clear from the face of each of the plea agreements that Jeffries was

informed of his right to withdraw his guilty plea. After entering a guilty plea, the

only issue that may be challenged by a habeas petitioner is whether the plea was

entered knowingly and voluntarily. See Tollett v. Henderson, 411 U.S. 258, 267

(1973). The record plainly reflects Jeffries knowingly and voluntarily entered

guilty pleas to his prior convictions. Since his challenge to his armed robbery

conviction is based on the validity of his prior convictions, he has not made a

substantial showing of the denial of a constitutional right.

      The certificate of appealability is DENIED and the appeal is DISMISSED.

The mandate shall issue forthwith.

                                       Entered for the Court

                                       Mary Beck Briscoe
                                       Circuit Judge




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