Floyd D. Markham, Petitioner-appellant, v. R. Michael Cody, Respondent-appellee, 61 F.3d 916 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

BARRETT

After examining the briefs 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); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Floyd D. Markham (Markham), appearing pro se and having been granted leave to proceed in forma pauperis, appeals from the district court's order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254. In order to reach the merits, we grant Markham's petition for a Certificate of Probable Cause.

On June 30, 1982, Markham was convicted by a jury of Burglary in the First Degree, After Former Conviction of Two or More Felonies, and Rape in the First Degree, After Former Conviction of Two or More Felonies. He was sentenced to twenty years and thirty-five years imprisonment, respectively, with the sentences to run consecutively.

In his present habeas petition, Markham alleged that his 1979 trial counsel provided ineffective assistance when counsel failed to inform him of his right to appeal his two count 1979 convictions for Robbery with a Firearm and that his 1981 trial counsel provided ineffective assistance when counsel failed to discover that his 1979 convictions were constitutionally defective.

After careful review and thorough consideration, the district court denied Markham's petition for a writ of habeas corpus. The district court observed that Markham's 1979 trial counsel was under no per se obligation to inform him of his limited right to appeal a judgment entered on a guilty plea and that counsel did not provide ineffective assistance even if he did not advise Markham of his limited right to appeal. With regard to Markham's 1981 trial counsel, the district court concluded that Markham procedurally defaulted his ineffective assistance of trial counsel claim in state court pursuant to an independent and adequate state procedural rule and that Markham had failed to show cause to excuse his default.

On appeal, Markham reiterates his claims of ineffective assistance of counsel made in his petition for a writ of habeas corpus in the district court.

We AFFIRM the district court's order dismissing Markham's petition for a writ of habeas corpus substantially for the reasons set forth in the district court's orders of November 2, 1994, and March 28, 1995.