UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARRYLE LAWRENCE WILLIAMS,

Petitioner - Appellant,

No. 98-5010
v.	N.D. Oklahoma
RONALD J. CHAMPION; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees.	(D.C. No. 96-CV-760)

ORDER AND JUDGMENT *

Before ANDERSON, McKAY , and LUCERO, 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. This cause is therefore ordered submitted without oral argument.

Darryle Lawrence Williams, an Oklahoma state inmate appearing pro se, seeks a certificate of appealability in order to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition. He contends that the district court erred in finding that his attorney had no duty to contact him following his entry of a guilty plea and his sentencing.1 Because Williams has failed to make "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), we deny his request for a certificate of appealability and dismiss the appeal.

BACKGROUND

On October 12, 1992, Williams pleaded guilty in Oklahoma state court to kidnaping, lewd molestation, forcible sodomy and assault with intent to rape, and he was convicted and sentenced. The trial court advised him of his right to appeal his conviction, telling him that he must file a motion to withdraw his plea within ten days and request an evidentiary hearing before the trial court. R. Tab 8 at 6-7. Williams contends that two days after entering his plea, he sent to the public defender who represented him a note, by which he requested a visit to discuss withdrawal of his plea.2

According to Williams, the public defender failed to contact him before he was transported from the jail to prison. Therefore, as soon as possible after his transfer, he sent a "second" letter on October 28, 1992. The public defender replied, advising him that the deadline for perfecting his appeal had passed. Thereafter, on December 29, 1992, Williams filed a pro se motion to withdraw his guilty plea in the trial court, which was denied as untimely. A subsequent petition for a writ of certiorari was also denied. R. Tab 7, Ex. A. Williams then filed an Application for Post-Conviction Relief for an Appeal Out of Time in the trial court, in which he asserted that he was denied an appeal due to the failure of his counsel, and that the state court erred in accepting a guilty plea because no factual basis had been established. Id. Ex. B.

Finding no support for Williams' claim that he was improperly denied an appeal due to his counsel's fault,3 the court concluded that, during the ten day period, Williams "made no verifiable attempts and gave no verifiable indications of wanting to contact counsel so as to discuss the possibility and/or perfect an appeal of [his] conviction," nor did he make any "attempts . . . to contact the court." Id. Ex. C at 3. Accordingly, the court found that Williams had been adequately informed of his right to appeal, but he made no attempt to do so during the ten days after he voluntarily and knowingly entered his plea. Id. Williams next filed a Petition in Error in the Oklahoma Court of Criminal Appeals. Id. Ex. D. After fully considering the record, that court stated, "[Williams'] only pertinent argument [below] was that his attorney did not respond to a letter he alleges he sent . . . on October 14, 1992, asking his attorney to file a motion to withdraw his guilty pleas." Id. Ex. E at 1-2. Noting the lower court's specific findings regarding Williams' bald self-serving statements and the attorney's contrary sworn affidavit, the court concluded that "[b]ased upon the record before this Court, we find no reason to disturb the findings of the District Court and conclude that Appellant was not denied an appeal through no fault of his own." Id. at 2.

Having fully exhausted his state court remedies, Williams then filed this § 2254 habeas action. The matter was referred to a magistrate judge who recommended that the petition be denied. R. Tab 13 at 14. Williams filed objections, disputing the magistrate judge's interpretation of the law. Following a de novo review, the district court adopted and affirmed the magistrate judge's report, and it dismissed the petition. Id. Tab 16.

DISCUSSION

Williams argues that the state court improperly rejected his appeal, and he contends that the district court should have provided him an evidentiary hearing regarding the validity of the first letter. In its brief below, the State did not raise the issue of any procedural bar to Williams' claim, but rather relied on the state court's express determination on the merits that Williams had not contacted his counsel during the ten day appeal period and the fact that Williams had presented no new argument or facts which suggest that the ruling was erroneous. See generally R. Tab 7 at 3-5.

Pursuant to 18 U.S.C. § 2254(e)(1), the "determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The district court concluded that Williams' affidavit and attached recently discovered copy of the alleged note do not constitute clear and sufficient evidence to "rebut the presumption of correctness which this Court is required to give to State court factual findings." See R. Tab 16 at 6; see also Report & Recommendation, R. Tab 13 at 12-13 (specifically noting discrepancies in Williams' representations regarding the letter). Under the circumstances, including Williams' present concession that his attorney did not receive the note, see infra note 2, we agree.4

As his second claim of error, Williams contends that, even if his counsel did not receive the first note, she had a duty to timely contact him following his conviction to advise him about the advantages and disadvantages of appeal. In support, he relies on Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991). His reliance is misplaced. As the district court correctly concluded, "Baker addresses a counsel's duties to his client following a jury trial and conviction." R. Tab 16 at 4. By contrast, when the conviction stems from a guilty plea, an attorney's duty to consult with the defendant concerning his right of appeal arises only (1) if the defendant asked counsel about the right, or (2) if a claim of error is made on constitutional grounds that could result in setting aside the plea. See Hardiman v. Reynolds, 971 F.2d 500, 506 (10th Cir. 1992) (quoting Laycock v. New Mexico, 880 F.2d 1184, 1187-88 (10th Cir. 1989)). The state court's factual finding effectively eliminates the first exception. As to the second exception, we agree with the district court that Williams has not alleged a constitutional claim of error that could result in setting aside his guilty plea.

Inasmuch as Williams has failed to make a "substantial showing of the denial of a constitutional right," we DENY his request for a certificate of appealability and DISMISS this appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge