FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 5, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
STEVEN MONTRAIL TRIPLET,
Petitioner - Appellant,
v. No. 06-6247
(W.D. Okla.)
ERIC FRANKLIN, Warden, (D.C. No. 5:06-CV-00376-C)
Respondent – Appellee.
ORDER AND JUDGEMENT*
Before KELLY, EBEL, and O’BRIEN, Circuit Judges.
Steven Montrail Triplet, a state prisoner confined in the Oklahoma Department of
Corrections (ODOC), pled guilty as an adult in state court to attempted escape from
custody, a crime he was charged with on July 3, 2002, when he was seventeen years old.
He filed a 28 U.S.C. § 2254 petition, claiming ineffective assistance of appellate counsel
for failing to raise a seminal issue—whether the adult court had jurisdiction because he
was a juvenile. The district court denied the petition. We granted a certificate of
appealability (COA) and now affirm.
*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
I. OVERVIEW OF OKLAHOMA LAW
A juvenile (one under the age of 18) alleged to have committed a crime in
Oklahoma can be held accountable as (1) a child, (2) a youthful offender or (3) an adult.
If the juvenile is to be treated as a child, the case proceeds in the juvenile division of the
district court. See Okla. Stat. Ann. tit. 10, §§ 7301-1.3(4), 7303-4.3(A) (2000).1 If the
court finds the allegations against the juvenile to be supported by the evidence, it enters
an order of adjudication declaring the juvenile delinquent. Id. § 7303-4.6(A). An
adjudicated delinquent shall not “be deemed a criminal” nor is he subject to the civil
disabilities which normally follow a criminal conviction. Id. § 7307-1.7(A).
Some juveniles are required to be treated as youthful offenders due to their age
and criminal conduct.2 See id. § 7306-2.6(A), (B). If so treated, the case proceeds in the
1
For this discussion only, we cite to the 2000 version of the Oklahoma Code
which was in effect when Triplet pled guilty to robbery with a firearm, even though his
attempted escape conviction did not occur until 2002. The differences between the 2000
and 2002 versions are insignificant for our purposes. Our remaining discussion will refer
to the version in effect at the time of the relevant offense, see Bowman v. State, 789 P.2d
631, 631 (Okla. Crim. App. 1990) (“It is a well established rule of law that the
appropriate criminal penalty is the penalty in effect at the time the defendant commits the
crime.”), or the relevant procedure. See Salazar v. State, 852 P.2d 729, 737-38 (Okla.
Crim. App. 1993).
2
Oklahoma adopted its Youthful Offender Act on January 1, 1998, “to better
ensure the public safety by holding youths accountable for the commission of serious
crimes, while affording courts methods of rehabilitation for those youths the courts
determine . . . may be amenable to such methods” and “to allow those youthful offenders
whom the courts find to be amenable to rehabilitation . . . to be placed in the custody or
under the supervision of the Office of Juvenile Affairs for the purpose of accessing the
rehabilitative programs provided by that Office and thereby, upon good conduct and
successful completion of such programs, avoid conviction for a crime.” See Okla. Stat.
Ann. tit. 10, § 7306-2.2(B) (2000); see also G.G. v. State, 989 P.2d 936, 937-38 (Okla.
Crim. App. 1999).
criminal division of the district court (adult court) and the juvenile is treated in much the
same manner as that of an adult. Id. § 7306-2.4(A)-(C); see also In re M.B., 145 P.3d
1040, 1047 (Okla. 2006) (“All the rights, protections, and procedures surrounding a
criminal trial are in place in a trial of a youthful offender.”). Upon a finding or admission
of guilt, the juvenile is sentenced as a youthful offender in the “manner provided by law
for an adult for punishment of the offense committed” but the sentence may not exceed
ten years. Okla. Stat. Ann. tit.10, § 7306-2.9(B); see also In re M.B., 145 P.3d at 1047.
However, unlike an adult who is sentenced to the county jail or to the custody or
supervision of the Oklahoma Department of Corrections (ODOC), a juvenile tried and
convicted as a youthful offender will generally be sentenced to the custody (juvenile
facility) or supervision (probation) of the Office of Juvenile Affairs. See Okla. Stat. Ann.
tit. 10, §§ 7306-2.6(F), 7306-2.9(A), (B), 7306-2.10(A), (B); Okla. Stat. Ann. tit. 22, §
991a(A). The Office of Juvenile Affairs must prepare a rehabilitation plan for the
juvenile providing (1) the juvenile facility where the juvenile will be placed (if
applicable), (2) the objectives the juvenile is expected to achieve and (3) the services the
juvenile will be provided to assist him in achieving those objectives. Okla. Stat. Ann. tit.
10, § 7306-2.10(A).
The court will review the juvenile’s compliance with his rehabilitation plan at least
semi-annually. Id. § 7306-2.10(B). If, upon a hearing, the court decides the juvenile has
reasonably complied with his rehabilitation plan and the public’s safety will not be
jeopardized, the court may discharge the juvenile without a judgment of guilt and order
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the verdict or plea expunged. Id. § 7306-2.10(F)(1).3 If, on the other hand, the court
determines the juvenile has (1) seriously injured or endangered another person by his
violent behavior, (2) escaped from a training school, (3) committed a felony while in the
custody or under the supervision of the Office of Juvenile Affairs or (4) failed to
substantially comply with his written rehabilitation plan, the court may enter a judgment
of guilt and transfer the juvenile to the county jail or to the custody and supervision of the
ODOC. Id. § 7306-2.10(F)(5); see also Okla. Stat. Ann. tit. 22, § 991a(A).
In general, once a juvenile is prosecuted and sentenced as a youthful offender, he
will continue to be prosecuted as a youthful offender in all subsequent criminal
proceedings until he reaches eighteen. Okla. Stat. Ann. tit. 10, § 7306-2.4(G). Prior to
reaching eighteen, he will only be treated as an adult in subsequent matters if (1) the
court had previously determined, after a hearing and investigation, he should receive an
adult sentence because he would not reasonably comply with a rehabilitation plan or the
public would not be adequately protected if he were to receive a youthful offender
sentence or (2) the court certifies him to stand trial as an adult. Id. §§ 7306-2.4(F), 7306-
2.8(A)-(E).
A juvenile may, and sometimes must, be tried as an adult. A juvenile may be
certified to stand trial as an adult by the court after it considers determining factors such
3
The statutes sometimes refer to the Department of Juvenile Justice, which is the
branch of the Office of Juvenile Affairs responsible for the programs and services
provided to juveniles alleged or adjudicated delinquent. See Okla. Stat. Ann. tit. 10, §
7302-2.2(A)(1) (2000). To avoid confusion, we refer only to the Office of Juvenile
Affairs.
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as the seriousness of the offense, whether the offense was committed against persons or
property, the juvenile’s sophistication and maturity, his previous record and the
likelihood of reasonable rehabilitation of the juvenile in the juvenile system. Id. § 7303-
4.3(B). Juveniles over thirteen years old accused of certain serious crimes are required
by statute to be tried as adults. Id. § 7306-1.1(A), (B). If the juvenile is to be treated as
an adult, the case proceeds as a criminal action in the district court (adult court) and if
convicted, the juvenile may be sentenced to the county jail or the custody or supervision
of the ODOC. See Okla. Stat. Ann. tit. 22, § 991a(A).
II. STATE TRIAL PROCEEDINGS
The facts of this case are convoluted because of the number of crimes committed
by Triplet. We recite only those facts pertinent to our decision.
On October 18, 2000, Triplet, then fifteen years old, pled guilty to robbery with a
firearm in Oklahoma state court.4 Due to his age and the nature of his offense, he was
required to be treated as a youthful offender under Oklahoma law. See Okla. Stat. Ann.
tit. 10, § 7306-2.6(A)(5) (2000) (“Any person fifteen . . . years of age who is charged
with . . . [r]obbery with a firearm or attempt thereof . . . shall be held accountable for his
acts as a youthful offender). He was sentenced to ten years in the custody of the Office
of Juvenile Affairs. On November 15, 2000, the parties adopted a written plan of
4
In several documents in the record, Triplet’s plea is referred to as a plea of nolo
contendere and his offense as attempted robbery with a firearm. However, because the
court document imposing sentence states Triplet pled guilty to robbery with a firearm, we
defer to it. In any event, we need not resolve the discrepancy because it is irrelevant to
our analysis.
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rehabilitation. Pursuant to that plan, Triplet was placed in a juvenile facility.
On August 3, 2001, Triplet was paroled from the juvenile facility. When he
violated the conditions of his parole, he was placed in the county jail. On July 3, 2002,
while in custody, Triplet, then seventeen years old, attempted to escape. Sixteen days
later, on July 19, 2002, the State charged him as an adult with attempted escape from
custody. However, because he was not certified to stand trial as an adult and had not
previously received an adult sentence, he should have been treated as a youthful offender
in the attempted escape case. See Okla. Stat. Ann. tit. 10, § 7306-2.4(F), (G) (2002) (“A .
. . youthful offender shall be tried as an adult in all subsequent criminal prosecutions
[only] if: 1. The . . . youthful offender has been certified to stand trial as an adult . . . ; or
2. The youthful offender has been certified for the imposition of an adult sentence as
provided by [§] 7306-2.8 of this title and is subsequently convicted of the alleged offense
. . . .”)
Apparently, Triplet was released from custody after being charged with attempted
escape as he went on to commit new crimes in March, September and November 2003,
including possession of a controlled dangerous substance (cocaine), conspiracy to
commit a felony (armed robbery), concealing stolen property and obstructing an officer,
false declaration of ownership to a pawnbroker and uttering two or more bogus checks.
He was charged with these offenses in the district court (adult court) sometime in 2003
(after he had turned 18).
On May 19, 2004, Triplet (then nineteen) pled guilty in adult court to the
attempted escape from custody charge and the 2003 charges. He was sentenced to two
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years imprisonment in the ODOC on the attempted escape charge. Relevant here, that
sentence was ordered to run concurrent with several sentences he received on the 2003
charges, the longest of which was ten years. Triplet was also sentenced to two ten-year
sentences (eight years suspended) on the 2003 charges. These sentences were ordered to
run concurrent with each other but consecutive to the concurrent series containing the
attempted escape sentence (i.e., after he completed ten years).
Triplet immediately sought to withdraw his plea, alleging the district attorney
intimidated and coerced him into pleading guilty. The trial court denied relief on June 1,
2004. Triplet, represented by counsel, appealed by filing a petition for writ of certiorari
with the OCCA,5 arguing the trial court abused its discretion by not allowing him to
withdraw his guilty plea, his sentence was excessive, his plea was not knowing or
voluntary, and he was denied due process and equal protection of the law. On November
18, 2004, the OCCA denied the petition and affirmed the judgment.
III. STATE POST-CONVICTION RELIEF PROCEEDINGS
On November 18, 2005, and again on November 6, 2006, Triplet filed for post-
conviction relief in state court challenging his attempted escape conviction. He alleged
that because he was under the age of eighteen at the time he was charged with attempting
to escape and was never certified to be tried as an adult, his attempted escape conviction
was void and his right to due process violated, notwithstanding that he was nineteen
5
Under Oklahoma law, “all appeals taken from any conviction on a plea of guilty
shall be taken by petition for writ of certiorari to the Court of Criminal Appeals.” Okla.
Stat. Ann. tit. 22, § 1051(A) (2004).
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when he pled guilty.6 Additionally, he claimed his appellate counsel was ineffective for
failing to raise the lack of adult certification on appeal. The state court denied relief on
January 11, 2006. The OCCA affirmed on March 23, 2006. After setting forth Triplet’s
claims, the OCCA stated in relevant part:
[A]ll issues previously ruled upon by this Court are res judicata, and all
issues not raised in the direct appeal [of the Attempted Escape conviction],
which could have been raised, are waived . . . .
Petitioner argues he was denied effective assistance of appellate counsel
because appellate counsel did not raise issues Petitioner believes should
have been raised on direct appeal. Failure to raise each and every issue is
not determinative of ineffective assistance of counsel and counsel is not
required to advance every cause of argument regardless of merit. See
Cartwright v. State, 1985 OK CR 136, ¶¶ 6-8, 708 P.2d 592. The record
does not support Petitioner’s contention he was denied effective assistance
of appellate counsel.
(R. Doc. 10-9 at 1-2.)
IV. FEDERAL HABEAS PROCEEDINGS
Triplet filed this timely pro se 28 U.S.C. § 2254 habeas petition attacking his
attempted escape conviction. He alleged (1) the state district court lacked jurisdiction to
try him as an adult on the attempted escape charge because he was seventeen when he
was charged with the offense and he was never certified to stand trial as an adult and (2)
appellate counsel was ineffective for failing to contact him to determine which issues he
6
In his pro se brief, Triplet said that because he was seventeen when he committed
the offense, the adult court lacked jurisdiction to try him as an adult. However, the
statutes requiring juveniles of certain ages to be treated as a youthful offender or an adult
refer to the juvenile being charged. See Okla. Stat. Ann. tit. 10, §§ 7306-1.1(A), (B),
7306-2.6(A), (B). We need not resolve the issue because Triplet was seventeen when he
committed the offense and at the time he was charged. For simplicity purposes, we refer
solely to when Triplet was charged.
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wished to raise on direct appeal. The petition was referred to a magistrate judge.
The magistrate judge recommended the petition be denied. Relevant here, the
magistrate determined the OCCA, in rejecting Triplet’s ineffective assistance of appellate
counsel claim, necessarily concluded he was not entitled to consideration as a youthful
offender on the attempted escape charge under Oklahoma law. The magistrate stated:
The [OCCA] is the arbiter of Oklahoma law, and the improper
interpretation of state law does not support a federal habeas case.
Jurisdiction is no exception to the general rule that federal courts will not
engage in collateral review of state court decisions based on state law . . .
we are bound by a state court’s conclusion respecting jurisdiction.
(R. Doc. 14 at 10 (quotations omitted).) Over Triplet’s objection, the district court
adopted the magistrate’s recommendation and entered judgment accordingly. Triplet
filed a notice of appeal which the district court construed as a request for a COA. The
court denied the request for a COA, as well as Triplet’s subsequent motion to proceed in
forma pauperis (ifp) on appeal.
Triplet renewed his request for a COA with this Court. We concluded he was
entitled to a COA on his ineffective assistance of appellate counsel claim and ordered the
State to file a brief addressing: (1) whether Triplet’s guilty plea to the attempted escape
charge constituted a waiver of his objection to a lack of adult certification and (2)
whether Triplet’s claim that the State did not comply with Oklahoma law in sentencing
him as an adult is cognizable in a 28 U.S.C. § 2254 proceeding. After receiving the
State’s brief and Triplet’s reply, we appointed counsel to represent Triplet and requested
supplemental briefing on the issues raised in our order granting a COA and those raised
in the State’s brief. Additionally, because it appeared Triplet had served his attempted
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escape sentence at the time he filed his § 2254 petition, we directed the supplemental
briefing to address whether Triplet was “in custody” on the attempted escape charge at
the time he filed his § 2254 petition.
V. DISCUSSION
Our review is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). When the state court has adjudicated a claim on the merits, we may
grant relief only if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). In this case, the OCCA rejected Triplet’s
ineffective assistance of appellate counsel claim but did not explain why. Nevertheless,
its decision constituted an “adjudication on the merits,” and we must defer to the
OCCA’s result, even though its reasoning is not expressly stated. See Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004).
Because no Supreme Court precedent suggests application of a different standard,
Triplet’s ineffective assistance of counsel claim is controlled by the general Strickland7
standard. See Knowles v. Mirzayance, --U.S.--, 129 S. Ct. 1411, 1419 (2009) (“[T]his
Court has repeatedly applied [the Strickland] standard to evaluate ineffective-assistance-
of-counsel claims where there is no other Supreme Court precedent directly on point.”);
7
See Strickland v. Washington, 466 U.S. 668 (1984).
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see also Wright v. Van Patten, 552 U.S. 120, 124-26 (2008) (evaluating ineffective
assistance of counsel claim under Strickland where no Supreme Court precedent
established any other standard applied). When evaluating an ineffective assistance of
counsel claim under § 2254(d)(1), our review is “doubly deferential”—we defer to the
state court’s determination that counsel’s performance was not deficient and further defer
to the attorney’s decision in how best to represent a client. Knowles, 129 S. Ct. at 1420;
Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003).
Yet a third level of deference applies. Whether appellate counsel is
constitutionally ineffective for failing to raise a claim requires us to examine the merits of
the omitted claim:
If the omitted [claim] is so plainly meritorious that it would have been
unreasonable to winnow it out even from an otherwise strong appeal, its
omission may directly establish deficient performance; if the omitted
[claim] has merit but is not so compelling, the case for deficient
performance is more complicated, requiring an assessment of the issue
relative to the rest of the appeal, and deferential consideration must be
given to any professional judgment involved in its omission; of course, if
the [claim] is meritless, its omission will not constitute deficient
performance.
See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). In this case, the merits of
the omitted claim—whether the adult court had jurisdiction to take Triplet’s plea and
sentence him in the attempted escape case—is a question of state law to which we are
bound. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a
state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.”); see also Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
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reexamine state-court determinations on state-law questions.”); Chandler v. Armontrout,
940 F.2d 363, 366 (8th Cir. 1991) (holding state court’s determination that trial court had
jurisdiction to accept defendant’s guilty plea binding on federal court); Wills v. Egeler,
532 F.2d 1058, 1059 (6th Cir. 1976) (“Determination of whether a state court is vested
with jurisdiction under state law is a function of the state courts, not the federal
judiciary.”).
With this “triple deference” in mind, we turn to the issues raised.
A. “In custody” requirement
28 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court
shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.
(Emphasis added.) “The ‘in custody’ language of § 2254 is jurisdictional and requires
habeas petitioners to be ‘in custody’ under the conviction or sentence under attack when
they file the petition.” Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004).
Triplet filed his § 2254 petition attacking his attempted escape conviction on April
6, 2006. At that time, he had already completed his two year sentence.8 However, he
8
In his pro se appellant brief, Triplet stated he was “no longer in custody on the
challenged offense because [he] has already discharged that prison sentence” and referred
to “Doc. 4.” (Appellant’s Br. at 2.) Because that document appeared to indicate he had
completed his attempted escape sentence on December 22, 2004, we requested
supplemental briefing from the parties as to whether Triplet was “in custody” on the
attempted escape charge at the time he filed his § 2254 petition. In the supplemental
briefs, neither Triplet (who was represented by appointed counsel) nor the State contested
the December 22, 2004 date as the date of discharge. However, in his supplemental
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was still serving the eight years remaining on the sentences that were ordered to run
concurrent with his attempted escape sentence (the concurrent series). Additionally, he
had yet to serve the two concurrent ten-year sentences (eight years suspended) which
were ordered to run consecutive to the concurrent series. See hyperlink, n.8. The fact the
attempted escape sentence was part of a consecutive series, with sentences remaining to
be served within the consecutive series at the time he filed his § 2254 petition, is critical.
In Peyton v. Rowe, two state prisoners serving consecutive sentences filed federal
habeas petitions attacking convictions whose sentences were set to run second in the
consecutive series, i.e., convictions whose sentences they were not yet serving. 391 U.S.
54, 55-57 (1968). Nevertheless, the Supreme Court determined they were “in custody”
on the second convictions for purposes of federal habeas relief. It held that when a
habeas petitioner is in custody under consecutive state sentences, those sentences should
be considered in the aggregate or as a continuous series. Id. at 64-65. It reasoned that
one of the purposes of the habeas corpus writ is to provide “swift judicial review of
alleged unlawful restraints on liberty” and it is in both the government and defendant’s
interests to have the claims determined before the lapse of time prejudices the truth-
filings, Triplet referred to a document indicating Triplet’s reception date into the ODOC
was December 22, 2004. Therefore, it is impossible for him to have completed his
sentence on that date. Moreover, performing an offender search on the ODOC’s website,
of which we take judicial notice, see Fed. R. Evid. 201, has revealed Triplet began his
attempted escape sentence on December 22, 2004, and completed it on May 7, 2005. See
http://docapp065p.doc.state.ok.us/servlet/page?_pageid=394&_dad=portal30&_schema=PORTA
L30&doc_num=489669&offender_book_id=286523. These dates are more logical, given
that Triplet did not enter his guilty plea until May 19, 2004. In any event, Triplet had
already served his attempted escape sentence at the time he filed his § 2254 petition.
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finding process. Id. at 59-64. Therefore, a prisoner serving consecutive sentences should
not have to wait to challenge a sentence until he is actually serving it. Consequently, the
Court determined the prisoners were considered “in custody” on the second sentence
while they were serving the first sentence in the consecutive series. Id. at 67.
Peyton’s holding was extended in Garlotte v. Fordice, 515 U.S. 39 (1995). There,
a state prisoner serving consecutive sentences filed a § 2254 petition challenging the
conviction whose sentence had already run. Relying on Peyton, specifically the fact that
consecutive sentences are considered a continuous series, the Supreme Court held the
prisoner was “in custody” for purposes of federal habeas relief. Id. at 41. A petitioner
incarcerated under consecutive sentences “remains ‘in custody’ under all of his sentences
until all are served.”9 Id.; see also Foster v. Booher, 296 F.3d 947, 949-50 (10th Cir.
2002) (concluding petitioner was “in custody” under § 2254 even though he had served
the sentence on the challenged conviction because that sentence ran consecutive to
sentences which had not yet been served).
The continuing series rationale of Garlotte and Foster controls here. Because
Triplet’s attempted escape sentence was part of a consecutive series, he remained “in
custody” on that sentence for purposes of federal habeas relief until all of the sentences in
the consecutive series were served. At the time he filed his habeas petition, he had yet to
serve the two concurrent ten-year (eight years suspended) sentences ordered to run
9
There was no need for the Court to carve out a similar rule for concurrent
sentences. Because they run simultaneously, a defendant sentenced to concurrent
sentences naturally remains “in custody” until all are served.
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consecutive to the concurrent series containing the attempted escape sentence.
Consequently, Triplet was “in custody” on the attempted escape conviction when he filed
his petition even though he had already served the sentence. The State does not contend
otherwise.
B. Justiciability
Federal habeas corpus relief under § 2254 does not lie to correct mere errors of
state law. See 28 U.S.C. § 2254 (“The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.”)
(emphasis added); Estelle, 502 U.S. at 67. “[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions. In conducting
habeas review [of persons in state custody], a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United States.” Estelle, 502
U.S. at 67-68.
Triplet’s claim alleges a violation of the federal constitution, specifically, a
criminal defendant’s Sixth and Fourteenth Amendment right to effective assistance of
counsel on a first appeal of right. See Evitts v. Lucey, 469 U.S. 387, 392, 396 (1985).
Oklahoma affords criminal defendants an appeal as a matter of right. See Okla. Stat.
Ann. tit. 22, § 1051(a) (2004) (“An appeal to the Court of Criminal Appeals may be taken
by the defendant, as a matter of right from any judgment against him . . . .”). Triplet’s
claim is cognizable under § 2254.
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C. Effect of Guilty Plea
Triplet pled guilty to the attempted escape charge. A voluntary guilty plea waives
all non-jurisdictional defects. See Berget v. State, 824 P.2d 364, 372 (Okla. Crim. App.
1991). But Triplet alleges his guilty plea (even though entered as an adult) could not
waive a jurisdictional defect—without adult certification, the adult court lacked
jurisdiction over the attempted escape charge, which he was charged with when he was a
juvenile. So, according to Triplet, his claim that appellate counsel was ineffective for
failing to raise the jurisdictional defect also survives.10
We agree Triplet’s guilty plea did not waive his ineffective assistance claim but
for a different reason. A guilty plea only waives claims “that occurred prior to the entry
of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973) (emphasis added); see
also Berget, 824 P.2d at 372 (“[A] guilty plea waives all previous non-jurisdictional
defects . . . .”) (emphasis added). Triplet’s ineffective assistance of appellate counsel
claim did not arise until after his plea. Therefore, it was not waived by the plea. But that
is not the end of the inquiry.
Triplet’s guilty plea to the attempted escape charge is significant in a different
10
In his pro se brief, Triplet makes a conclusory and perfunctory claim that his
guilty plea was forced and therefore involuntary. Appointed counsel makes no such
argument in the supplemental brief. Because Triplet has not explained how his plea was
forced or presented any argument on the issue, we will not address it. See United States
v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider . . . issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation.”) (quotations omitted). In any event, this argument was denied by the
state trial court after a hearing and the OCCA affirmed. We defer to the state courts and
indeed see no basis for disagreement.
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regard. Appellate counsel cannot be considered ineffective for failing to raise a claim on
direct appeal that would have been deemed waived by Triplet’s guilty plea, i.e., a non-
jurisdictional claim. See Leslie v. Abbott, 117 Fed. Appx. 72, 75-77 (10th Cir. 2004)
(unpublished); see also United States v. Simmons, 142 F.3d 1279, No. 97-40678, 1998
WL 224564, at *3 (5th Cir. Apr. 21, 1998) (unpublished).11 Indeed, in Oklahoma, an
appeal from a conviction upon a plea of guilty (a certiorari appeal) “is limited to two
inquiries: (1) whether the guilty plea was made knowingly and voluntarily; and (2)
whether the district court accepting the guilty plea had jurisdiction to accept the plea.”
Cox v. State, 152 P.3d 244, 247 (Okla. Crim. App. 2006); see also Okla. Stat. Ann. tit.
22, § 1051(a), (c) (2004) (stating “[t]he scope of review to be afforded on certiorari shall
be prescribed by the Court of Criminal Appeals”). In other words, absent a claim the plea
was not knowingly or voluntarily made (a claim appellate counsel raised and the OCCA
rejected in this case), a certiorari appeal is limited to whether the court accepting the plea
had jurisdiction. Consequently, if the lack of adult certification did not deprive the
district court of jurisdiction, appellate counsel cannot be deemed ineffective for failing to
raise it as such a claim would have been waived by Triplet’s guilty plea and would have
been outside the scope of the OCCA’s review. Therefore, although a merits issue, we
consider here whether the lack of adult certification is jurisdictional.
Two claims were before the OCCA: (1) Triplet’s attempted escape conviction was
11
Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Leslie, Simmons and the other unpublished cases cited in this opinion as we
would any other non-precedential authority.
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void and his due process rights violated because he was seventeen at the time he was
charged with the offense and was never certified to be tried as an adult, and (2) appellate
counsel was ineffective for failing to raise this issue on direct appeal. The OCCA
concluded all claims which could have been but were not raised on direct appeal were
waived and appellate counsel was not ineffective. Obviously, the waiver ruling pertained
to Triplet’s first claim as his second claim could not have been raised on direct appeal. In
Oklahoma, issues of subject matter jurisdiction cannot be waived and can be raised for
the first time on collateral review. See Wallace v. Oklahoma, 935 P.2d 366, 372 (Okla.
Crim. App. 1997) (“[E]ven though not raised on direct appeal, issues of subject matter
jurisdiction are never waived and can therefore be raised on a collateral appeal.”). Thus,
the OCCA evidently did not consider Triplet’s first claim jurisdictional because it
deemed it waived. We are bound by this state law determination. See Bradshaw, 546
U.S. at 76; Estelle, 502 U.S. at 67-68; Chandler, 940 F.2d at 366; Wills, 532 F.2d at
1059.
The OCCA did not explain its conclusion but our own review of Oklahoma law
convinces us it is correct. Triplet was tried and sentenced as a youthful offender in the
robbery case. Therefore, as stated previously, he should have been treated as a youthful
offender, not as an adult, in the attempted escape case. But, even had he been properly
treated as a youthful offender, his prosecution and sentencing would have proceeded
before the district court (adult court). See Okla. Stat. Ann. tit. 10, § 7306-2.4(A)-(C),
7306-2.9(A), (B). Therefore, whether treated as a youthful offender or as an adult, the
district court clearly had the authority, and jurisdiction, to accept Triplet’s plea and
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sentence him in the attempted escape case. See Puckett v. Cook, 586 P.2d 721, 723
(Okla. 1978) (“Jurisdiction includes power to hear and decide a justiciable
controversy.”); Welch v. Focht, 171 P. 730, 733 (Okla. 1918) (“Jurisdiction is the power
to hear and determine the subject-matter in controversy between parties to a suit, to
adjudicate or exercise any judicial power over them . . . . If the law confers the power to
render a judgment or decree, then the court has jurisdiction.”) (quotations omitted).
The only error in this case occurred when the district court sentenced Triplet to the
ODOC. In general, a district court sentences a youthful offender to the custody or
supervision of the Office of Juvenile Affairs. See Okla. Stat. Ann. tit. 10, § 7306-2.9(B).
A district court may, however, sentence a youthful offender to the custody or supervision
of the ODOC if it certifies the juvenile to receive an adult sentence. Id. § 7306-2.8(B).
The State initiates the certification process by filing a motion for certification. Id. §
7306-2.8(A). The court then orders an investigation (unless waived by the juvenile) and
holds a hearing, at which it considers, inter alia, the nature of the alleged offense, the
juvenile’s sophistication and maturity, his previous record, the likelihood of reasonable
rehabilitation of the youthful offender in the juvenile system if he is found to have
committed the offense and whether the offense occurred while the person was escaping
from a secure facility. Id. § 7306-2.8(C). If, after the hearing, the court determines there
is good cause to believe the juvenile would not reasonably complete a plan of
rehabilitation or the public would not be adequately protected if the juvenile was
sentenced as a youthful offender, it may certify the juvenile to receive an adult sentence.
Id. § 7306-2.8(D). The certification must occur prior to the juvenile pleading guilty so he
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will know the range of punishment he is facing by pleading guilty. See A.J.B. v. State,
992 P.2d 911, 912-13 (Okla. Crim. App. 1999) (interpreting § 7306-2.8(A) as requiring
completion of the proceedings on the State’s motion for adult sentencing before a guilty
plea is entered or accepted so juvenile will know range of punishment he is facing if plea
entered). If the court certifies the juvenile to receive an adult sentence, it shall, “upon . . .
the entry of a plea of guilty . . . , impose sentence as provided by law for an adult for
punishment of the offense committed.” Okla. Stat. Ann. tit. 10, § 7306-2.8(E).
In this case, the district court sentenced Triplet to the ODOC without first
certifying him to receive such sentence prior to his guilty plea. But that failure did not
divest the district court of subject matter jurisdiction, which it acquired upon the filing of
the criminal information. See M.K.H. v. State, 946 P.2d 677, 679 (Okla. Crim. App.
1997) (“[A] trial court’s jurisdiction is triggered by the filing of an Information alleging
the commission of a public offense with appropriate venue. And the general rule is that
once the District Court has jurisdiction of the subject matter and the person, it will not be
defeated or divested by subsequent events.”) (citation and quotations omitted); see also
Turk v. Corywell, 419 P.2d 555, 558 (Okla. 1966) (“The general rule is that when
jurisdiction of the subject matter and the person is once acquired it will not be defeated or
divested by subsequent events.”); c.f. Mason v. State, 868 P.2d 724, 726-27 (Okla. Crim.
App. 1994) (once the district court acquired adult jurisdiction over a juvenile due to his
having been charged with a crime requiring him to be tried as an adult, the court retained
jurisdiction to convict and sentence the juvenile for any lesser included offense, even a
non-enumerated offense). Indeed, the Oklahoma district courts are courts of general
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jurisdiction constitutionally endowed with unlimited original jurisdiction of all justiciable
matters. See OKLA. CONST. art. 7, §§ 7(a) (“The District Court shall have unlimited
original jurisdiction of all justiciable matters, except as otherwise provided in this Article
. . . .”), 7(b) (“All Courts in the State of Oklahoma . . . are hereby abolished . . . and their
jurisdiction, functions, powers and duties are transferred to the respective District Courts
. . . .”); see also Okla. Stat. Ann. tit. 20, § 91.1 (“The district courts of the State of
Oklahoma are the successors to the jurisdiction of all other courts, including the . . .
Juvenile Courts . . . .”). The error in this case was more appropriately one of due process
(i.e., a non-jurisdictional violation). But Triplet waived any due process claim by
pleading guilty. See Berget, 824 P.2d at 372; United States v. Wright, 43 F.3d 491, 494
(10th Cir. 1994); United States v. Trevizo-Miramontes, 20 Fed. Appx. 823, 825 (10th Cir.
2001) (unpublished). And, in any event, certiorari appeal is not available in Oklahoma
for such non-jurisdictional claims. Therefore, appellate counsel was not ineffective for
failing to raise the issue.12
12
We acknowledge the OCCA has held the district court (adult court) cannot
obtain jurisdiction to try a juvenile as an adult absent a certification proceeding. See, e.g.,
Edwards v. Oklahoma, 591 P.2d 313, 319 (Okla. Crim. App. 1979) (“The district court
could not obtain jurisdiction to try a juvenile as an adult without a certification
proceeding.”); see also Bishop v. Oklahoma, 595 P.2d 795, 796 (Okla. Crim. App. 1979)
(holding juvenile could not waive the juvenile court’s jurisdiction by confessing to a
motion to certify); Ex Parte Dickerson, 94 P.2d 951, 954 (Okla. Crim. App. 1939) (“[a]s
to all juvenile offenses, the district court is a court of limited or special jurisdiction, and
not a court of general jurisdiction”; without a certificate from the juvenile court showing
the juvenile competent to know the wrongfulness of his acts and probable cause to
believe he committed the crime, the district court was without jurisdiction over the
juvenile’s prosecution). We question the continued viability the use of the word
“jurisdiction” in these cases given the general jurisdiction of Oklahoma’s district courts
and the fact that when Oklahoma abolished its juvenile courts in 1968, it transferred their
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Even assuming, arguendo, the issue is a jurisdictional (non-waivable) issue under
Oklahoma law, appellate counsel was only ineffective under federal law if (1) the lack of
adult certification issue was plainly meritorious or (2) the issue was not plainly
meritorious but nevertheless should have been raised when assessed against the other
potential issues to be raised. See Cargle, 317 F.3d at 1202; see also Smith v. Robbins,
528 U.S. 259, 285, 288 (2000). However, whether the lack of adult certification issue
had merit is plainly one of Oklahoma law. Again, “it is not the province of a federal
habeas court to reexamine state court determinations on state-law questions.” Estelle,
502 U.S. at 67-68. In this case, the OCCA did not explain why it rejected Triplet’s
ineffective assistance of appellate counsel claim. But implicitly, the OCCA must have
concluded the lack of adult certification issue was meritless or had merit but was not so
compelling in light of the rest of the appeal. We will not, and cannot, second-guess this
determination of Oklahoma law. Deferring to this determination and applying the double
deference accorded an ineffective assistance of counsel claim evaluated under the §
2254(d)(1), see Knowles, 129 S. Ct. at 1420, we cannot say the OCCA’s conclusion that
Triplet’s appellate counsel was not ineffective for failing to raise the lack of adult
certification issue was an unreasonable application of Strickland.
jurisdiction to the district courts. See OKLA. CONST. art. 7, §§ 7(a), 7(b); Okla. Stat.
Ann. tit. 20, § 91.1. In any event, we need not resolve the issue. These cases occurred
prior to Oklahoma enacting its Youthful Offender Act on January 1, 1998. Prior to the
Act, a juvenile would be tried as a child in the juvenile division of the district court unless
certified to be tried as an adult or statutorily required to be tried as an adult due to his age
and the nature of his offense. Under the Act, a juvenile can be held accountable as a
child, youthful offender or adult. If treated as a youthful offender, the juvenile, like an
adult, is tried and sentenced by the district court (adult court).
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AFFIRMED.13
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
13
Triplet filed an application to proceed ifp on appeal with this Court at the
inception of this appeal. We GRANT his application.
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