GREGORY DALE ENGLISH, Petitioner-Appellee, v. R. MICHAEL CODY, Warden, Respondent-Appellant. LAVEITA OSBORN OGDEN, Petitioner-Appellee, v. NEVILLE MASSEY, Respondent-Appellant.
Nos. 97-5004, 97-5132
United States Court of Appeals, Tenth Circuit
June 30, 1998
146 F.3d 1257
PUBLISH. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. Nos. 95-C-753-B and 95-CV-957-H)
Tony R. Burns, Anadarko, Oklahoma, for Petitioner-Appellee Laveita Osborn Ogden.
Before SEYMOUR, Chief Judge, LOGAN and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
Gregory D. English and Laveita O. Ogden (“Petitioners“) brought separate habeas corpus petitions pursuant to
Respondents sought permission pursuant to
II. BACKGROUND
On habeas review, this court does not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993). A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the
In Brecheen, this court found inadequate the Oklahoma procedural requirement that all ineffective assistance of trial counsel claims be raised on direct appeal or forfeited.2 See 41 F.3d at 1363-64. Brecheen recognized this
The Brecheen conclusion that Oklahoma‘s bar is inadequate was based primarily on the Supreme Court‘s decision in Kimmelman v. Morrison, 477 U.S. 365 (1986), and this court‘s decision in Osborn v. Shillinger, 861 F.2d 612 (10th Cir. 1988). In Kimmelman the Supreme Court set forth reasons why ineffective assistance of counsel claims should be treated differently from other habeas claims in considering procedural bar questions:
Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused‘s right to effective representation. A layman will ordinarily be unable to recognize counsel‘s errors and to evaluate counsel‘s professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. . . . Thus, we cannot say . . . that restriction of federal habeas review would not severely interfere with the protection of the constitutional right asserted by the habeas petitioner.
Based on this precedent, the Brecheen court concluded that the “need to give a meaningful opportunity to assess and develop a claim of ineffective assistance of counsel, coupled with the fact that such claims may require an opportunity to develop additional facts, compel the conclusion that ‘ineffective assistance claims may be brought for the first time collaterally.‘” 41 F.3d at 1363-64 (quoting Osborn, 861 F.2d at 622) (footnote omitted); see also Jackson, 1998 WL 220089, at *4. After noting that “evidentiary hearings are unavailable at the appellate level,” the Brecheen court concluded the Oklahoma procedural bar on ineffective assistance of trial counsel claims not raised on direct appeal was inadequate because it denied defendants meaningful review of their ineffective assistance claims. 41 F.3d at 1364. According to the court,
The practical effect of [Oklahoma‘s procedural bar] is to force [petitioner] either to raise this claim on direct appeal, with new counsel but without the benefit of additional fact-finding, or have the claim forfeited under state law. This Hobson‘s choice cannot constitute an adequate state ground under the controlling case law because it deprives [petitioner] of any meaningful review of his ineffective assistance claim.
Although Brecheen appears definitive, Respondents assert that its foundation is built on a faulty premise: a perceived inability of habeas petitioners to develop factual issues on a direct appeal to the Oklahoma Court of Criminal Appeals. They point out that in contrast to the assertion in Brecheen, evidentiary hearings are available as part of the direct appeal process in Oklahoma. As support for this assertion, Respondents point to Berget v. State, 907 P.2d 1078 (Okla. Crim. App. 1995), which criticized the Brecheen opinion and stated that Oklahoma does in fact have a mechanism for additional fact-finding in a direct appeal. In Berget, the Oklahoma Court of Criminal Appeals noted that although it was not a fact-finding court, an Oklahoma rule of criminal procedure existed under which it could remand disputed issues to the trial courts for evidentiary hearings in appropriate cases. See id. at 1084 (“Review via an evidentiary hearing is not unavailable, it is simply conducted at the trial court level.“).
Respondents argue that Berget constitutes a definitive statement of the law of Oklahoma which must be respected by this court. See Garner v. Louisiana,
In response, Petitioners argue that Kimmelman, Osborn, and Brecheen constitutionally mandate their entitlement to bring their claims of ineffective assistance on collateral review, no matter the availability of procedures to adequately address the issue on direct appeal. In the alternative, Petitioners argue that even if Oklahoma could develop a system which properly obligated appellants to raise ineffective assistance issues on direct appeal, the current system is inadequate because it does not fully and fairly address the concerns identified in Brecheen. Finally, Petitioners argue the Brecheen rule applies regardless of whether the claim of ineffectiveness relates to matters within or outside the record on direct appeal.
The necessary starting point is Petitioners’ contentions that claims of ineffective assistance of trial counsel can be raised on federal habeas review regardless of the adequacy of the state scheme for addressing those issues on direct appeal. Petitioners cite Kimmelman, Osborn, and Brecheen in support of that contention. A careful review of those cases, however, leads to the conclusion that they do not establish the rigid rule advocated by the Petitioners. Instead, these cases simply reflect the constitutional imperative that this court disregard a state procedural bar for the review of ineffective assistance claims unless the state procedure in question adequately protects a criminal defendant‘s ability to vindicate his or her constitutional right to the effective assistance of counsel.
In Kimmelman, the Supreme Court recognized that in order for a criminal defendant to adequately vindicate his Sixth Amendment right to the effective assistance of counsel at trial, he must be allowed to obtain an objective assessment of trial counsel‘s performance and must be allowed to adequately develop the factual basis for any claim of ineffectiveness. See 477 U.S. at 378; see also Osborn, 861 F.2d at 622-23 (interpreting Kimmelman as embodying these two constitutional imperatives). Although Kimmelman noted that restricting litigation of ineffectiveness claims to direct appeal would generally not
Nor can this court‘s cases be read for such a proposition. In Osborn, the seminal Tenth Circuit case on this issue, this court recognized the imperatives set out in Kimmelman and indicated that it would not apply a Wyoming procedural bar “[w]here, as here, an ineffectiveness claim cannot be made on the basis of the [direct appeal] record and the allegedly ineffective counsel handled both the trial level proceedings and the direct appeal.” 861 F.2d at 623. Likewise, it is clear that the decision in Brecheen not to recognize the Oklahoma procedural bar was driven by this court‘s belief that there was no adequate mechanism in the Oklahoma direct appeal process for an evidentiary hearing on ineffectiveness claims. See 41 F.3d at 1364 (“The practical effect of [Oklahoma‘s procedural bar] is to force [petitioner] either to raise this claim on direct appeal, with new counsel but without the benefit of additional fact-finding, or have the claim
This court‘s decision in United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) (in banc), does not mandate a different result. In Galloway, a
The problem with these reasons, and procedural bar, is that they are absurdly easy to circumvent on the one hand, and painfully labor intensive to sort through and apply on the other. The usual tactic to force a second review is to claim in a post-conviction proceeding that appellate counsel was ineffective for failing to advance all possible reasons showing why trial counsel was ineffective, and that appellate counsel was ineffective for not raising other issues relating to trial and sentencing. Technically, this is a first-time claim of ineffectiveness which cannot be procedurally barred and which is not unitary with the claim of ineffectiveness of trial counsel advanced on direct appeal.
Id. at 1241; see also Murray v. Carrier, 477 U.S. 478,
While Galloway makes clear that forcing criminal defendants to raise ineffective assistance claims on direct appeal is an impractical approach which fails miserably at furthering the goal of finality of judgments, Galloway‘s force is limited as an exercise of this court‘s inherent authority to control its own docket and its supervisory power over federal district courts in this Circuit. This court has no such supervisory authority over Oklahoma courts. See Harris v. Rivera,
Despite Petitioners’ suggestion to the contrary, Kimmelman, Osborn, and Brecheen do not establish a rigid constitutional rule prohibiting Oklahoma from requiring the presentation of ineffective assistance of trial counsel claims on direct appeal. Instead, those cases identify the importance of the Sixth Amendment right to counsel and mandate that no state procedure for resolving claims of ineffective assistance will serve as a procedural bar to federal habeas review of those claims unless the state procedures comply with the imperatives set forth in Kimmelman: (1) allowing petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel‘s performance and (2) providing a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of
The conclusion that Oklahoma can force criminal defendants to raise claims of ineffective assistance of trial counsel on direct appeal and comply with the Kimmelman imperatives does not, however, resolve this case. Regardless of the hypothetical propriety of such a system, Petitioners raise serious questions about the adequacy of the actual Oklahoma procedural mechanism. For example, although not determinative here, the Oklahoma Court of Criminal Appeals has recently held claims of ineffective assistance of trial counsel must be raised on direct appeal or waived even if trial and appellate counsel are the same. See McCracken v. State, 946 P.2d 672, 676 (Okla. Crim. App. 1997); Neill v. State, 943 P.2d 145, 148 (Okla. Crim. App. 1997). Kimmelman, Osborn, and Brecheen mandate, however, that this court never apply a state procedural bar when trial and appellate counsel are the same. See Kimmelman, 477 U.S. at 378; Osborn, 861 F.2d at 623; Brecheen, 41 F.3d at 1363-64.
Respondents rightfully point out, however, that because Petitioners each had independent appellate counsel, the first Kimmelman imperative is satisfied. In response, Petitioners argue that the Oklahoma procedural bar is not adequate because it does not comply with the second Kimmelman imperative: a sufficient procedural mechanism on direct appeal whereby defendants can adequately
Although these allegations raise very grave concerns about the adequacy of the Oklahoma procedure for resolving ineffective assistance of trial counsel claims on direct appeal, resolution of that issue on this appeal would be premature. Kimmelman, Osborn, and Brecheen indicate that the Oklahoma bar will apply in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone. All other ineffectiveness claims are procedurally barred only if Oklahoma‘s special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied. See Maes, 46 F.2d at 986. The most significant problem in these cases is that the records do not indicate whether they fall in the former category or the latter and this court is loath to reach out and decide the adequacy of the Oklahoma procedure if such a decision is not necessary to the resolution of this appeal.
Oklahoma asserts the claims of each Petitioner relate solely to matters that were within the direct appeal record and that no additional facts needed to be
In light of this status, we must remand for a determination of whether these claims embrace matters in the trial record or whether they require enlargement of that record or additional fact-finding. If, on remand, the district courts conclude that Petitioners’ claims concern matters wholly manifest in the direct appeal record, the claims are procedurally barred. If, on the other hand, the district courts conclude that Petitioners’ claims could only be adequately developed thorough supplementation of the record on appeal or additional fact-finding, the district courts should then consider whether the applicable Oklahoma remand procedure was adequate to serve that purpose. In so doing, the courts should consider the four bases of inadequacy alleged by Petitioners, see supra pages 15-17, and any other additional factor deemed pertinent. If the Oklahoma procedure
IV. CONCLUSION
The judgments of the district courts refusing to apply a procedural bar to Petitioners’ claims of ineffective assistance are hereby VACATED. The cases are REMANDED to the respective district courts for further proceedings consistent with this opinion.