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    Gerald Payne appealed the denial of his petition for habeas corpus, which raised three claims of trial error and one claim of ineffective assistance of counsel. The district court dismissed the petition because it contained an unexhausted claim. The appellate court agreed that Payne's ineffective assistance claim was unexhausted under Oklahoma law and that he must pursue state remedies for this claim before bringing it in federal court under habeas corpus. Therefore, the appellate court denied a certificate of appealability and dismissed the appeal.

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    Filed: Patrick Fisher

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    Gerald Payne appealed the denial of his petition for habeas corpus, which raised three claims of trial error and one claim of ineffective assistance of counsel. The district court dismissed the petition because it contained an unexhausted claim. The appellate court agreed that Payne's ineffective assistance claim was unexhausted under Oklahoma law and that he must pursue state remedies for this claim before bringing it in federal court under habeas corpus. Therefore, the appellate court denied a certificate of appealability and dismissed the appeal.

    Original Description:

    Filed: 1997-05-28 Precedential Status: Non-Precedential Citations: 113 F.3d 1246 Docket: 96-6221

    Original Title

    Payne v. Spears, 113 F.3d 1246, 10th Cir. (1997)

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    Gerald Payne appealed the denial of his petition for habeas corpus, which raised three claims of trial error and one claim of ineffective assistance of counsel. The district court dismissed the petition because it contained an unexhausted claim. The appellate court agreed that Payne's ineffective assistance claim was unexhausted under Oklahoma law and that he must pursue state remedies for this claim before bringing it in federal court under habeas corpus. Therefore, the appellate court denied a certificate of appealability and dismissed the appeal.

    Copyright:

    Public Domain
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    17 views4 pages

    Filed: Patrick Fisher

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    Scribd Government Docs
    Gerald Payne appealed the denial of his petition for habeas corpus, which raised three claims of trial error and one claim of ineffective assistance of counsel. The district court dismissed the petition because it contained an unexhausted claim. The appellate court agreed that Payne's ineffective assistance claim was unexhausted under Oklahoma law and that he must pursue state remedies for this claim before bringing it in federal court under habeas corpus. Therefore, the appellate court denied a certificate of appealability and dismissed the appeal.

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    of 4

    F I L E D

    United States Court of Appeals


    Tenth Circuit

    MAY 28 1997

    UNITED STATES COURT OF APPEALS

    PATRICK FISHER

    TENTH CIRCUIT

    Clerk

    GERALD PAYNE,
    Petitioner - Appellant,
    v.

    No. 96-6221
    W.D. Oklahoma

    DENISE SPEARS; THE ATTORNEY


    GENERAL OF THE STATE OF
    OKLAHOMA,

    (D.C. No. CIV-96-139)

    Respondents - Appellees.
    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. This cause 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.
    *

    Gerald Payne appeals the district courts denial of his petition for a writ of habeas
    corpus filed pursuant to 28 U.S.C. 2254, and requests a certificate of appealability.1 Mr.
    Payne is currently serving a forty-year sentence in the Oklahoma State Correctional
    Facility at Atoka following his conviction for conspiracy to manufacture a controlled
    dangerous substance. He appealed his conviction to the Oklahoma Criminal Court of
    Appeals, alleging three grounds of error in his jury trial. The Oklahoma Court of
    Criminal Appeals affirmed his conviction.
    Mr. Payne then brought this section 2254 action in the district court, alleging the
    same three trial errors he raised in the Oklahoma court,2 as well as a claim for ineffective
    assistance of counsel. Since the ineffective assistance claim had admittedly not been
    raised in the Oklahoma courts, the magistrate judge determined the petition must be
    dismissed because it contained an unexhausted claim along with the exhausted claims.
    See Rose v. Lundy, 455 U.S. 509, 510, 522 (1982) (holding district court must dismiss
    mixed petitions, i.e., those containing any claims that have not been exhausted in the state
    Mr. Payne filed with this court a petition for certificate of probable cause.
    However, because his habeas action was pending on the effective date of the
    Antiterrorism and Effective Death Penalty Act of 1996 (April 24, 1996), we construe his
    petition as an application for a certificate of appealability. See 28 U.S.C. 2253(c);
    Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997).
    1

    Mr. Payne alleged in state court, and alleges in his habeas petition that: (1)
    because the verdicts were ambiguous and uncertain the trial court invaded the province of
    the jury by ignoring the jurys verdict on a misdemeanor count and sentencing him on the
    felony count; (2) the trial court erred by permitting the state to materially amend the
    information during trial; and (3) discovery abuses denied him a fundamentally fair trial.
    2

    -2-

    courts). The district court adopted the magistrate judges recommendation, dismissed Mr.
    Paynes petition without prejudice, and subsequently denied him a certificate of
    appealability.
    In his appellate brief, Mr. Payne concedes that he never raised his claim of
    ineffective assistance of counsel with any Oklahoma court, and has therefore failed to
    exhaust his state-court remedies on that issue. Instead, he argues that pursuing state-court
    remedies on an ineffective assistance of counsel claim in Oklahoma is futile because he
    failed to raise that issue on direct appeal, and the Oklahoma courts will not allow him to
    raise it in a post-conviction proceeding. See 28 U.S.C. 2254(b)(1) (An application for
    a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a
    State court shall not be granted unless it appears that . . . the applicant has exhausted the
    remedies available in the courts of the State . . . or circumstances exist that render such
    process ineffective to protect the rights of the applicant. ).
    We are unpersuaded by this argument. As the magistrate judge noted, while
    Oklahoma generally bars collateral review of ineffective assistance claims not raised on
    direct appeal,3 there are exceptions to this rule. Thus, we cannot say that Mr. Payne is
    unable to raise his ineffective assistance of counsel claim in an Oklahoma post-conviction

    This court has specifically refused to enforce a procedural bar based on


    Oklahomas rule that ineffective assistance of counsel claims must be raised on direct
    appeal or will be deemed waived. See Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th
    Cir. 1994).
    3

    -3-

    proceeding. See Paxton v. State, 910 P.2d 1059, 1061 (Okla. Crim. App. 1996) (noting
    exceptions to rule that ineffective assistance claims not raised on direct appeal are
    waived); Pickens v. State, 910 P.2d 1063, 1069 (Okla. Crim. App. 1996) (stating that for
    ineffective assistance of counsel claims raised for the first time in post-conviction
    proceedings, the court will review each case on its individual merits, examining each
    specific proposition in connection with the specific facts of each case as the need arises).
    We agree with the district court that Mr. Payne must fully exhaust his Oklahoma postconviction remedies before bringing his ineffective assistance of counsel claim under
    section 2254 in federal court.
    Accordingly, Mr. Payne has failed to make a substantial showing of the denial of
    a constitutional right, and therefore, we DENY his application for a certificate of
    appealability, see 28 U.S.C. 2253(c)(2), and DISMISS the appeal. The mandate shall
    issue forthwith.
    ENTERED FOR THE COURT
    Stephen H. Anderson
    Circuit Judge

    -4-

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