133 F.

3d 932
98 CJ C.A.R. 105
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Lloyd Orvil PAYLOR, Petitioner-Appellant,

v.
Ed EVANS, Warden, Respondent-Appellee.
No. 96-6397.
(D.C.No. CIV-96-286)

United States Court of Appeals, Tenth Circuit.

Jan. 6, 1998.

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without
oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Lloyd Orvil Paylor, an Oklahoma state prisoner, appeals the district court's
denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254.
On October 20, 1997, we granted petitioner a certificate of probable cause1 and
ordered respondent to file a brief.2 Respondent's brief was filed on November
28, 1997, and petitioner filed a reply brief on December 2, 1997. Being now
fully briefed in the matter, and having carefully reviewed the record, we affirm.

On April 25, 1973, when he was twenty years old, petitioner pled guilty to
murder and was sentenced in state district court to life imprisonment. He did not

appeal the judgment or sentence, which would have required filing a petition
for a writ of certiorari with the Oklahoma Court of Criminal Appeals within
ninety days after the entry of judgment, see Okla. Stat. Ann. tit. 22, 1051(a).
Petitioner did, however, within the ninety-day period, file with the district court
an "Application for Post-Conviction Relief," seeking relief from his sentence
on the grounds that (1) he "only got to talk to a Lawyer about ten minutes"
before sentencing and (2) he "wasn't in a Right State of Mind." See Appellant's
App., tab 6 at 3, 4. In that document, he asked for the appointment of counsel,
see id. at 3, and a copy of the plea transcript, see id. at 4.
5

On August 15, 1973, without appointing counsel, ordering a transcript,3 or

conducting a hearing, the district court denied petitioner's post-conviction
application. The court relied on a "written statement" signed by petitioner
(presumably the "Plea of Guilty: Summary of Facts" form) to conclude that
petitioner "pled guilty of his own free will with full knowledge of his rights."
Id., tab 8 at 1. This denial was not timely appealed, which would have required
the filing of a petition in error with the Court of Criminal Appeals within thirty
days, see Okla. Stat. Ann. tit. 22, 1087. Although the order indicates on its
face that it was mailed to petitioner on the same day it was entered, petitioner
claims he never received a copy of this ruling from the court. See Appellant's
App., tab 31 at 3, 6.

The record is less clear as to what transpired after the expiration of both appeal
periods (i.e., the time to appeal the judgment and sentence and the time to
appeal the denial of the post-conviction application). In the early months of
1974, petitioner made a number of additional filings in the state district court,4
which appear to have been ultimately treated collectively as an effort to appeal
the August 15, 1973 denial of his post-conviction application. That "attempted
appeal" was dismissed on April 16, 1974, as untimely. See Appellant's App.,
tab 15.

In June of 1974, petitioner filed in the state district court an "Application for
Writ of Habeas Corpus and/or Leave to Withdraw Plea of Guilty" and another
"Application for Post-Conviction Relief." Ultimately prompted by a writ of
mandamus from the Court of Criminal Appeals, the district court denied the
post-conviction application in December of 1974. The court again relied only
on the "Plea of Guilty: Summary of Facts" form to conclude that petitioner's
guilty plea was constitutionally sound. It also cited petitioner's initial postconviction application, filed and denied in the summer of 1973, and found that
it was not required to entertain another application raising "substantially the
same issues." Id., tab 24 at 1.

Over twenty years later, in January of 1995, following petitioner's

reincarceration after a period of federal incarceration and the subsequent
revocation of his parole, petitioner, represented by current appellate counsel,
again filed a habeas petition in state district court. The court declined
jurisdiction on the ground that the sentencing court was one of competent
jurisdiction. Petitioner then filed the same petition in the Court of Criminal
Appeals. Having "no disagreement" with the district court, the appellate court
stated that "[p]etitioner has not established that his confinement is unlawful or
that he is entitled to immediate release, a necessary prerequisite to the granting
of a writ of habeas corpus" and denied the petition. Id., tab 29 at 1-2. It was
apparently only with respect to these 1995 filings that the state court or the
petitioner had a copy of the plea transcript. According to the record, a certified
copy was filed in the underlying criminal case in December of 1994, having
been ordered for the first time in 1980 by current appellate counsel when he
was first retained by petitioner to evaluate his post-conviction case.

In February of 1996, petitioner filed his habeas petition in federal district court,
again represented by current appellate counsel. The district court reached the
merits of petitioner's claims and denied relief. Petitioner now appeals, raising
three issues: (1) whether his guilty plea was knowing and voluntary, (2)
whether he was denied his right to direct appeal, and (3) whether his plea
violated a state statute requiring every plea to be "oral," see Okla. Stat. Ann. tit.
22, 514. We review de novo the district court's decision to deny habeas relief.
McIntosh v. United States Parole Comm'n, 115 F.3d 809, 813 (10th Cir.1997).

10

As an initial matter, we must address the issue of state procedural default,

which respondent raises in its appellate brief, just as it did in its initial response
to the petition in district court. In addressing respondent's procedural default
argument in the district court, the magistrate concluded that, based on
petitioner's assertion that the unconstitutional conditions of his confinement
effectively denied him access to the courts during the relevant period, the court
would "assume" that petitioner had established cause for his procedural default
and address the merits of the petition. Respondent failed to object to the
magistrate's report and recommendation, and this failure constitutes waiver of
the procedural default argument. See Maes v. Thomas, 46 F.3d 979, 984 (10th
Cir.1995).

11

Proceeding to the merits, petitioner's first contention is that his guilty plea was
unknowing and involuntary. He claims that he was not adequately advised of
the constitutional rights he was waiving and the material elements of the
offense with which he was charged, and that his appointed counsel performed

ineffectively in advising him with respect to his plea. "Whether a plea is

voluntary is a question of federal law subject to de novo review." Laycock v.
New Mexico, 880 F.2d 1184, 1186 (10th Cir.1989). Having carefully reviewed
the record, we have little to add to the district court's recitation of the applicable
law and its analysis, except to answer several specific points raised in
petitioner's brief.
12

First, petitioner alleges that appointed counsel advised him incorrectly

regarding punishment by indicating on the "Plea of Guilty: Summary of Facts"
form that the minimum imprisonment was "none." Appellant's Br. at 14.
Although arguably an ambiguous response when viewed in isolation, it is clear
from the transcript of the plea hearing that petitioner knew he was facing a
mandatory sentence of life imprisonment. See Appellant's App., tab 26, ex. A at
4 (where petitioner responds affirmatively to the court's inquiries as to whether
he knows the penalty for murder is life imprisonment and whether he knows
that, on a plea of guilty, that is the only sentence the court can give him); id. at
7 (where petitioner indicates that he heard the district attorney's
recommendation of life imprisonment and that it was the recommendation he
expected to hear, and where petitioner indicates, after hearing the
recommendation, that he still wants the court to sentence him and does not wish
to withdraw his plea).

13

Second, petitioner argues that the trial court failed in its duty to properly advise
him of his appellate rights, citing Oklahoma statutes and cases as support. On
habeas review, however, we look only to whether a federal right was violated.
See Hardiman v. Reynolds, 971 F.2d 500, 505 n. 9 (10th Cir.1992).
Accordingly, we do not consider petitioner's state law argument further.

14

Petitioner also contends that he was denied "his constitutional rights to an

attorney for appeal, a transcript for appeal and a first appeal as a matter of
right." Appellant's Br. at 20 (upper case and bolding deleted). There is no
question that the sixth amendment right to counsel "extends to a defendant's
first appeal as of right." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir.1991).
A trial transcript is also a matter of right in that instance. See Ruark v. Gunter,
958 F.2d 318, 319 (10th Cir.1992) (citing Griffin v. Illinois, 351 U.S. 12
(1956)). The problem in this case is that defendant did not file a direct appeal.
Following his guilty plea, petitioner was advised by the court that he had the
right to seek review of his judgment and sentence by filing a petition for a writ
of certiorari in the Court of Criminal Appeals and that such a petition had to be
filed within ninety days. See Appellant's App., tab 26, ex. A at 8.; see also id.,
tab 4 at 2. In response to the judge's direct inquiry, petitioner said that he
understood. See id., tab 26, ex. A at 8; see also id., tab 4 at 2. Notwithstanding

these instructions, petitioner did not seek certiorari in the Court of Criminal
Appeals, but instead filed with the trial court an application for post-conviction
relief.
15

Petitioner now argues that this post-conviction application, filed within the
appeal period, should have been seen as an unartful attempt to appeal, see
Appellant's Br. at 22, or at the very least, gave notice to both the trial court and
his court-appointed attorney that he wished to appeal, thus giving rise to a duty
to respond to the request for counsel contained therein, see id. at 23. We do not
agree. "Normally, when a defendant pleads guilty, he has foreclosed his right to
appeal. If a claim of error is made on constitutional grounds, which could result
in setting aside the plea, or if the defendant inquires about an appeal right,
counsel has a duty to inform him." Laycock, 880 F.2d at 1188 (citation
omitted).

16

In this case, petitioner did not give any indication at the plea hearing that he
wished to appeal. There is nothing in the record to suggest that petitioner ever
inquired about his appeal right or expressed his desire to appeal, and there is no
evidence that counsel knew or should have known of any grounds for an
appeal. Indeed, although there is nothing in the record to indicate that counsel
had withdrawn from the case, there is no evidence that petitioner sent him a
copy of the July 19 post-conviction application, which he now claims provided
notice of his desire to appeal. Although the trial court received the filing,
nowhere in that document does petitioner claim he is trying to appeal. On the
contrary, in response to a question on the form as to whether he had taken an
appeal, petitioner simply responded "no." Furthermore, appeals are not filed
with the district court, but rather with the court of criminal appeals, as petitioner
was told. Under these circumstances, we cannot conclude that petitioner's
constitutional rights were violated when the state court failed to treat the postconviction application as a request for the appointment of counsel to appeal.5

17

Petitioner suggests in his brief that prison officials played a role in the alleged
denial of his appeal right by his statement that "upon inquiry, [he] was
furnished the only legal form the prison officials had, a copy of a PostConviction Application." Appellant's Br. at 21; see also id. at 24. As we have
stated above, however, there is nothing in the record to indicate that petitioner
ever expressed to prison officials or otherwise a desire to appeal.

18

Finally, petitioner argues that because he never actually uttered the word
"guilty," his plea is void as violative of a state statute requiring that "[e]very
plea must be oral," Okla. Stat. Ann. tit. 22, 514. We agree with the district
court that this state law argument is not appropriate for habeas corpus review.

See Hardiman, 971 F.2d at 505 n. 9.

19

The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.

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

Because the petitioner's application for habeas relief was filed on February 23,
1996, before the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), it
is a pre-AEDPA certificate of probable cause that is required, rather than an
AEDPA certificate of appealability. United States v. Kunzman, 125 F.3d 1363,
1364 n. 2 (10th Cir.1997)

Due to our October 20, 1997 order, "Petitioner's [still outstanding] Objection to
Order filed September 19, 1997 [vacating an earlier briefing order], and Motion
to Reinstate the [earlier briefing order]" is moot

The court had before it the state's response to petitioner's application, which
stated in reference to the request for a transcript, "[t]here was no record in the
case for the reason that there was no trial." Appellant's App., tab 7 at 1

There is a pleading entitled "Petition for a Writ of Habeas Corpus Ad

Subjiciendum and/or A Application for Post Conviction Relief, and/or A
Application for Post Conviction Appeal," Appellant's App., tab 9 at 2, sworn to
by petitioner on February 4, 1974, and challenging the voluntariness of his plea
and the adequacy of counsel. The docket of the state district court does not
reflect the filing, but it does indicate that the district attorney filed a response
on February 18, 1974. See Appellant's App., tab 27 at 2. That response was
entitled "Response to Application for Post-Conviction Relief," and called to the
court's attention petitioner's earlier application and the court's August 15, 1973
denial. See id., tab 10. On March 5, 1974, having "not heard from Court on
'Recent' Writ" (referring presumably to his February 4, 1974 pleading),
petitioner filed a "Notice of Intent to Appeal to Court of Criminal Appeals." Id.,
tab 11 at 1. Two weeks later, petitioner filed another "Notice of Intent to Appeal
to Court of Criminal Appeals," id., tab 12 at 2, that seems to refer by date to
two intervening court orders which appear neither in the record nor on the
district court docket sheet. In his filings, petitioner continued to seek

appointment of counsel and a copy of the plea transcript

5

Petitioner's invocation of Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring
liberal construction of pleadings filed by pro se litigants in determining whether
they state a claim), does not change our analysis. Pro se litigants are not
excused, by virtue of that rule of liberal construction, from following the same
rules of procedure that govern other litigants. See Green v. Dorrell, 969 F.2d
915, 917 (10th Cir.1992) (failure to comply with federal court's local rules)