                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 6 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    HAROLD D. HORNSBY,

                Petitioner - Appellant,

    v.                                                   No. 98-5192
                                                     (D.C. No. 95-CV-940)
    STEPHEN KAISER,     *
                                                         (N.D. Okla.)

                Respondent - Appellee.




                            ORDER AND JUDGMENT           **




Before PORFILIO , BARRETT , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

*
      In Hornsby v. Kaiser , No. 96-5210, 1998 WL 172616 (10th Cir. Apr. 14,
1998), we granted petitioner’s motion to amend the caption to substitute his
current custodian, Stephen Kaiser, for former custodian Edward L. Evans, Jr.
Although the district court’s order on remand named Edward L. Evans, Jr. as the
respondent, we continue to use the caption identifying Stephen Kaiser as the
respondent in this case.
**
      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Harold D. Hornsby appeals the district court’s denial of his

petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254.

Because petitioner has not shown the district court’s decision deprived him of a

federal right, we deny his application for a certificate of probable cause and

dismiss the appeal.

       As the parties are familiar with the facts, we do not repeat them here. This

is the second time this habeas case is before us. In   Hornsby v. Kaiser , 1998 WL

172616, at **4, we remanded the case to the district court for an evidentiary

hearing on petitioner’s claim that his failure to raise certain issues on direct

criminal appeal was excused by his attorney’s ineffectiveness. Petitioner claimed

that after sentencing, he asked his attorney to withdraw his plea and file an

appeal, but that his attorney failed to do so. As grounds for withdrawing the plea,

petitioner alleged that it was involuntary because he had relied on his attorney’s

promise of a suspended sentence, and that he never would have pleaded guilty had

he known that he could receive a three-year sentence of imprisonment.

       Pursuant to our order of remand, the district court appointed counsel for

petitioner and held an evidentiary hearing. Based on the record and the evidence

presented at the hearing, the court found that petitioner had received effective


                                            -2-
assistance from his attorney; that he knew of his right to withdraw his plea but did

not ask his attorney to do so as a prerequisite to filing an appeal; and that

petitioner admitted in open court that he knew he could be sentenced to three

years’ incarceration and that he had not been promised probation. The court

concluded that petitioner had not shown cause for the failure to raise his habeas

issues on direct appeal and that such issues were, therefore, procedurally

defaulted. The district court denied petitioner’s motions to vacate and to amend

the habeas petition, and partially denied his motion to enlarge the record.

      Petitioner seeks review of these rulings, arguing (1) the state’s procedural

bar was not an independent and adequate state ground which could bar further

review of his issues; (2) relying on a default that took place before his conviction

was used to enhance a subsequent sentence is unconstitutional; (3) attorney

ineffectiveness claims cannot be procedurally barred for failure to raise them on

direct appeal; and (4) the district court abused its discretion in denying his motion

to vacate, motion to amend the petition, and motion to enlarge the record. In

addition, petitioner has filed the following motions on appeal: (1) a motion to

augment the record on appeal and to remand for an evidentiary determination of

certain issues; (2) a motion to file an appendix to the motion to augment the

record and remand; (3) a motion for a full plenary hearing on the motion to




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augment the record and remand; (4) a motion to stay proceedings pending the

plenary hearing; and (5) a motion to file an affidavit on appeal.

         Because petitioner filed his habeas petition before the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), he is subject to

the pre-AEDPA requirement that he obtain a certificate of probable cause before

bringing this appeal. To obtain such a certificate, petitioner must make a

substantial showing of the denial of a federal right.   See Barefoot v. Estelle , 463

U.S. 880, 893 (1983). After reviewing petitioner’s application and supporting

documentation, we conclude he has not made such a showing.

         The procedural default based on petitioner’s failure to raise his issues on

direct appeal is an independent and adequate state ground, and the ensuing bar did

not deprive him of due process even if the default occurred before his conviction

was used to enhance a later sentence. Moreover, even if we assume that

petitioner raised ineffective assistance of counsel as one of his habeas claims, he

has not made a substantial showing that the district court erred in finding, after an

evidentiary hearing, that petitioner received effective assistance. Finally,

petitioner has not made a substantial showing that the denial of his motions to

vacate, to amend the petition, and to enlarge the record, deprived him of a federal

right.




                                             -4-
      Petitioner’s outstanding motions are DENIED. His application for a

certificate of probable cause is DENIED, and the appeal is dismissed. The

mandate shall issue forthwith.



                                                  Entered for the Court



                                                  John C. Porfilio
                                                  Circuit Judge




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