921 F.3d 1261
10th Cir.2019Background
- Smith pled guilty in Oklahoma to drug- and weapon-related charges and was sentenced to 30 years; he did not timely withdraw his plea or appeal within Oklahoma’s 10-day window.
- Smith alleges his first attorney failed to inform him of a 20-year plea offer (instead communicating a 25-year offer), and that Smith would have accepted 20 years.
- A second attorney was appointed; at the plea hearing the prosecutor stated a 20-year offer had been rejected and the second attorney at least equivocated that this matched her memory; Smith claims he told the second attorney the first attorney never communicated a 20-year offer.
- Smith sought postconviction relief and an out-of-time appeal; the OCCA denied relief as Smith failed to show his failure to appeal was through no fault of his own, so the IAC claims were not reached on the merits.
- In federal habeas proceedings the district court held two timely IAC claims procedurally defaulted and declined to find cause and prejudice; the Tenth Circuit reversed, finding the record raised disputed facts and remanding for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner can show cause to excuse procedural default by relying on his attorney’s failure to consult about an appeal (Third IAC) | Smith: second attorney failed to consult about appeal where nonfrivolous claim (first attorney’s failure to convey 20-year offer) existed; this deficient performance is cause | State: Third IAC is unexhausted and untimely, and second attorney lacked reason to know of a nonfrivolous claim | Court: Rejects exhaustion/timeliness objections; holds second attorney had duty to consult, her failure was constitutionally deficient and constitutes cause to excuse default |
| Whether Smith can show prejudice (cause-and-prejudice test) to overcome procedural default of First and Second IAC claims | Smith: but for counsel’s failures he would have appealed and would have obtained the 20-year plea or court remedy | State: Smith knew of facts at sentencing and OCCA correctly found Smith voluntarily pleaded and failed to appeal | Court: Prejudice shown — reasonable probability Smith would have appealed and that the 20-year offer (or relief) would have led to a more favorable result |
| Whether the First IAC claim (first attorney failed to convey 20-year offer) is meritorious on the record | Smith: would have accepted 20-year offer; satisfies Frye four-part prejudice test | State: Record shows no 20-year offer existed (first attorney’s letter says only 25 years) | Court: Record contains serious factual conflict (prosecutor referenced 20 years; second attorney’s hearing comments); remand for an evidentiary hearing to resolve facts |
| Whether the Second IAC claim (second attorney failed to alert court to first attorney’s error) is meritorious on the record | Smith: had second attorney pointed out first counsel’s omission, court likely would have remedied and imposed 20 years | State: No 20-year offer existed so claim fails | Court: Because facts about existence and communication of a 20-year offer are disputed, remand for an evidentiary hearing to adjudicate merits |
Key Cases Cited
- Maples v. Thomas, 565 U.S. 266 (procedural-default rule and external cause standard)
- Walker v. Martin, 562 U.S. 307 (procedural-default principles)
- Edwards v. Carpenter, 529 U.S. 446 (IAC claim must be presented to state court before it can serve as cause)
- Murray v. Carrier, 477 U.S. 478 (exhaustion/presentation standard)
- Frye v. Missouri, 566 U.S. 134 (counsel’s duty to communicate plea offers; Frye prejudice test)
- Strickland v. Washington, 466 U.S. 668 (IAC deficiency and prejudice test)
- Flores-Ortega v. Roe, 528 U.S. 470 (duty to consult about appeals; failure-to-consult framework)
- Davila v. Davis, 137 S. Ct. 2058 (attorney error as external cause for procedural default only when constitutional)
- Banks v. Workman, 692 F.3d 1133 (procedural default via state rules)
- Magar v. Parker, 490 F.3d 816 (cause-and-prejudice standard explanation)
- Bland v. Sirmons, 459 F.3d 999 (cause-and-prejudice framework)
- Heard v. Addison, 728 F.3d 1170 (deficient performance where counsel failed to consult despite obvious nonfrivolous issues)