Routt v. Hines

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 8 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN STEPHEN ROUTT,
Petitioner - Appellant,
No. 02-5052
v.
(D.C. No. 99-CV-114-K)
(N.D. Oklahoma)
REGINALD HINES,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and HARTZ, Circuit Judges.
Petitioner-Appellant John Stephen Routt, proceeding pro se, applies for a
certificate of appealability and appeals the district court’s denial of his petition
for a writ of habeas corpus, which he made pursuant to 28 U.S.C. § 2254. In his
habeas petition, Routt made three claims: (1) that he was denied the right to a
swift and effective remedy in which to challenge the constitutionality of his
*
After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). The case 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order and judgment is not binding precedent, except under the doctrines of law of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.
conviction because the state trial court failed to respond to his motions seeking
appointed counsel; (2) that he was denied the right to effective assistance of
counsel during trial and sentencing; and (3) that he was denied the right to
effective assistance of counsel on appeal.
On October 18, 1994, Routt was convicted in Tulsa County District Court
upon a plea of nolo contendere to the charge of possession of a controlled
substance after a former conviction. Ten days later, on October 28, 1994, Routt’s
attorney timely filed a motion to withdraw the plea. In the motion, Routt’s
attorney argued that Routt’s plea was not voluntarily made, that there was not a
sufficient factual basis to support a finding of guilt, and that Routt had conducted
research and had identified potential legal defenses he wished to raise. (Doc. No.
45.) Inexplicably, on November 8, 1994, Routt also filed a pro se motion to
withdraw his guilty plea and in it alleged that his counsel was ineffective for
failing to file a motion to withdraw his plea within the ten-day time limit imposed
by state statute. Routt also filed two motions, one on November 8, 1994, and the
other on December 23, 1994, requesting the appointment of counsel. (Id.)
The state court held a hearing to consider the motion to withdraw the plea
on October 6, 1995. Routt appeared with counsel. The court denied Routt’s
motion and then made a considerable effort to ensure that Routt understood his
right to appeal. The trial court took two recesses during the hearing to permit
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Routt’s counsel to explain his right to appeal and the steps necessary to perfect
and file an appeal. (Doc. No. 45, Tr. of Hr’g on Mot. to Withdraw Plea at 3, 7.)
Then, the trial court conducted a colloquy with Routt to ensure he understood his
rights. (Id. at 7–9.)
Following the denial of his motion to withdraw his plea, Routt failed to file
a notice of appeal within the ten days required under Oklahoma law. See Rule
4.2(D), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, ch.
18, app. As a result, his subsequent appeal to the Oklahoma Court of Criminal
Appeals (OCCA) was dismissed. (Doc. No. 45, Order Dismissing Application for
Cert. and/or Appeal Out of Time, Apr. 4, 1996.)
We pause to acknowledge that Routt now argues that he should be excused
from failing to file his notice of appeal in time because the trial court incorrectly
told Routt during the hearing that he had ninety days in which to make the filing.
(Aplt. B. at 10–11.) We reject this claim for three reasons. First, Routt
overstates the matter when he says “[t]he record clearly shows that the petitioner
[w]as advised he had ninety days” to file his notice of appeal. (Id. at 11.) In fact,
the trial court’s statement was not so direct but was, at best, ambiguous. 1 The
1
Routt identifies the following exchange as the source of his belief that he
had ninety days in which to file a notice of appeal:
THE COURT: Did [your lawyer] talk to you about what you
must do, that you must file a written application?
(continued...)
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reference to ninety days in the transcript most likely refers to the appellant’s
obligation to file a petition for writ of certiorari to the OCCA within ninety days.
However, the transcript appears correctly to recite that Routt knew he had just ten
days to file a notice of intent to appeal.
Second, any misrepresentation by the trial court was corrected by the
court’s reference to a written form, the Plea of Guilty–Summary of Facts form,
that clearly stated the procedure Routt must follow to proceed with an appeal,
including the requirement that a notice of intent to appeal be filed within ten days
after the denial of the application to withdraw his plea. See Rule 13.0, Form
13.10, “Uniform Plea of Guilty–Summary of Facts,” Rules of the OCCA, tit. 22,
ch. 18, app. The trial court supplied Routt with the form and directed Routt’s and
1
(...continued)
THE DEFENDANT: He told me I had to file notice of intent to
appeal 10 days from this date, and 90 days from that date I need to
file–
THE COURT: Ninety days from the date now, you’re already
past the ten days, your motion to withdraw your plea of guilty is
when we ruled on the 10 days.
He was found guilty and sentenced, he had 10 days to file and
withdraw his finding of guilt, or plea of no contest, I just overruled
that because it was done before. From here forward he has some
appeal rights he needs to be familiar with, you go back over there
again, make sure he understands.
(Doc. No. 45, Tr. of Hr’g on Mot. to Withdraw Plea at 7.) Routt was
accompanied by his lawyer during the colloquy.
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his counsel’s attention to the section explaining a defendant’s right to appeal. 2
(Doc. No. 45, Tr. of Hr’g on Mot. to Withdraw Plea at 3, 6, 8). Routt told the
court that he not only read the form, but that he specifically read the portions
indicating the deadlines for an appeal. (Id. at 8.)
Third, even if Routt had been misinformed by the trial court, his appeal
would still have been dismissed as time-barred. The applicable Oklahoma rule
establishing the time limit for filing a notice of appeal states, “[t]he filing of the
Notice of Intent to Appeal and Designation of Record in the district court is
jurisdictional and failure to timely file constitutes waiver of the right to appeal.”
Rule 4.2(D), Rules of the OCCA, tit. 22, ch.19, app. The Oklahoma Court of
Criminal Appeals has repeatedly held that the statutory rules setting time limits
for filing an appeal are absolute and neither the OCCA nor the trial courts have
the authority to extend them. See Weatherford v. State, 13 P.3d 987, 989 n.1
2
Under Oklahoma law, the Plea of Guilty–Summary of Facts form “shall be
utilized by trial courts and parties in the prosecution and appeal of criminal cases
in the State of Oklahoma.” Rule 13.0, Rules of the OCCA, tit. 22, ch. 18, app.
Under the heading “NOTICE OF RIGHT TO APPEAL,” the form states:
If the trial court denies your Application [to withdraw your plea], you
have the right to ask the Court of Criminal Appeals to review the
District Court’s denial by filing a Petition for Writ of Certiorari
within ninety (90) days from the date of the denial. Within ten (10)
days from the date the application to withdraw plea of guilty is
denied, notice of intent to appeal and designation of record must be
filed pursuant to Oklahoma Court of Criminal Appeals Rule 4.2(D).
If you are indigent, you have the right to be represented on appeal by
a court appointed attorney.
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(Okla. Crim. App. 2000) (stating, in reference to appellate time periods set by
statute, that “[i]t is beyond this Court’s power to change—either by court rule or
otherwise—the minimum statutory prerequisites for bringing an appeal”); Turner
v. State, 541 P.2d 1355, 1356 (Okla. Crim. App. 1975) (“The time and manner of
taking [an] appeal . . . is regulated by statute. . . . The time provided by the statute
is absolute, provided it is reasonable and just, and neither this Court nor the trial
court has the authority to extend it.”); Jordan v. State, 430 P.2d 824, 825 (Okla.
Crim. App. 1967) (calling a trial court’s order extending time to file an appeal
beyond that specified by statute a “nullity” and dismissing the appeal as untimely
filed). Therefore, the trial judge in the instant case could not have extended
Routt’s time to file his notice of intent to appeal even if the court had clearly told
him he had ninety days in which to file the notice.
In addition to his failed attempt at direct appeal, Routt made three
applications for post-conviction relief to the state trial court. Only the third is
relevant here. In that application, which was denied by the trial court, Routt
asserted his claim that he was denied effective assistance of counsel at trial and
sentencing. The OCCA affirmed the trial court’s denial of Routt’s third
application, holding that the issue of effective assistance of counsel was
procedurally barred. (Doc. No. 57, Ex. B.) The OCCA stated that “[t]he
substantive issues he raises either were raised or could have been asserted before
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he entered his plea, in a motion to withdraw his plea and direct appeal
proceedings, or in his previous applications for post-conviction relief. Such
issues may not be the basis of this post-conviction proceeding.” (Id., citing Okla.
Stat. tit. 22, § 1086, and Webb v. State, 835 P.2d 115 (Okla. Crim. App. 1992).)
Finally, Routt filed a petition for a writ of habeas corpus in the United
States District Court for the Northern District of Oklahoma on February 10, 1999.
(Doc. No. 1.) The court referred the case to a magistrate judge, who filed a
Report and Recommendation on February 15, 2002, in which the magistrate judge
recommended that Routt’s petition be denied. (Doc. No. 61.) Routt timely filed
his objections to the magistrate judge’s Report on February 27, 2002. (Doc. No.
62.) On April 1, 2002, the district court entered an order in which it reviewed de
novo those portions of the Report to which Routt objected, adopted and affirmed
the Report of the magistrate judge, and denied Routt’s petition for a writ of
habeas corpus. (Doc. No. 64.)
For substantially the reasons given by the district court, we DENY a
certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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