146 F.3d 1257 (10th Cir. 1998), 97-5004, English v. Cody

Docket Nº:97-5004, 97-5132.
Citation:146 F.3d 1257
Party Name:Gregory Dale ENGLISH, Petitioner-Appellee, v. R. Michael CODY, Warden, Respondent-Appellant. Laveita Osborn OGDEN, Petitioner-Appellee, v. Neville MASSEY, Respondent-Appellant.
Case Date:June 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1257

146 F.3d 1257 (10th Cir. 1998)

Gregory Dale ENGLISH, Petitioner-Appellee,


R. Michael CODY, Warden, Respondent-Appellant.

Laveita Osborn OGDEN, Petitioner-Appellee,


Neville MASSEY, Respondent-Appellant.

Nos. 97-5004, 97-5132.

United States Court of Appeals, Tenth Circuit

June 30, 1998

Page 1258

Patrick T. Crawley, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, and Diane L. Slayton, Assistant Attorney General, with him on the briefs, Oklahoma City, Oklahoma), for Respondents-Appellants R. Michael Cody, Warden, and Neville Massey.

Michael A. Abel, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender, and Julia O'Connell, Assistant Federal Public Defender, on the brief, Tulsa, Oklahoma), for Petitioner-Appellee Gregory Dale English.

Tony R. Burns, Anadarko, Oklahoma, for Petitioner-Appellee Laveita Osborn Ogden.

Page 1259

Before SEYMOUR, Chief Judge, LOGAN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.


Gregory D. English and Laveita O. Ogden ("Petitioners") brought separate habeas corpus petitions pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma. Petitioners each argued, inter alia, that they were being detained in violation of the Constitution because they had been denied the effective assistance of counsel at trial. Wardens R. Michael Cody and Neville Massey ("Respondents") moved the district court in each proceeding to deny the petitions on the grounds of procedural bar. According to Respondents, Petitioners defaulted their ineffective assistance of trial counsel claims when they failed to raise them on direct appeal to the Oklahoma Court of Criminal Appeals. Relying on this court's decision in Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir.1994), the district court judges in each case concluded Petitioners' claims of ineffective assistance of trial counsel were not procedurally barred.

Respondents sought permission pursuant to 28 U.S.C. § 1292(b) to bring interlocutory appeals of the district court orders. The district court in each case entered a § 1292(b) order and we allowed both appeals. 1 These cases require this court to once again consider whether federal courts must respect an Oklahoma procedural bar which precludes review of claims of ineffective assistance of trial counsel not raised on direct appeal.


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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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 decision. See Klein v. Neal, 45 F.3d 1395, 1398-99 (10th Cir.1995). The question of whether a state procedural bar is adequate is generally more difficult than the question of independence. See Steele, 11 F.3d at 1522. As a general rule, this court has concluded that in order to be adequate, a state rule of procedural default must be applied evenhandedly in the vast majority of cases. See, e.g., Maes v. Thomas, 46 F.3d 979, 985-86 (10th Cir.1995). Because the effective assistance of counsel lies at the very foundation of the adversary system of criminal justice, this court has been particularly vigilant in scrutinizing the adequacy of state rules of procedural default which have the effect of barring federal habeas review of claims of ineffective assistance of counsel. See, e.g., Jackson v. Shanks, 143 F.3d 1313, 1318-19 (10th Cir.1998); Brecheen, 41 F.3d at 1363-64; Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th Cir.1988).

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 result conflicted with the general procedural bar rule that "failure to raise a claim at trial or on direct appeal will preclude federal habeas corpus review of the merits of the claim," but concluded that when the underlying claim is ineffective assistance of

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counsel, "the 'general' rule must give way because of countervailing concerns unique to ineffective assistance." Id. at 1363.

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, 106 S.Ct. 2574, 91 L.Ed.2d 305 (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.

477 U.S. at 378, 106 S.Ct. 2574 (citation omitted). In Osborn, a habeas case out of Wyoming, this court cited Kimmelman for the proposition that a state habeas petitioner was not barred from raising an ineffective assistance of counsel claim in his federal habeas petition even though he failed to raise that claim on direct appeal. See 861 F.2d at 622-23. Osborn indicated that this result was dictated by the interplay of two factors: (1) the general need for additional fact-finding for the proper resolution of a claim of ineffective assistance; and (2) the need to allow a petitioner to consult with different counsel on appeal in order to obtain an objective assessment of trial counsel's performance. See id. at 623.

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, 143 F.3d at 1318-19. 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

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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, 368 U.S. 157, 166, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961) (holding federal courts are bound by a state's interpretation of its own laws and cannot substitute their judgment for that of the state). Respondents then argue that in light of the availability of evidentiary hearings on direct appeal, Brecheen was decided incorrectly and this court should repudiate the view that Oklahoma's procedural bar to the review of ineffective assistance claims not raised on direct appeal is inadequate. Finally, Respondents argue that even if this court were to reaffirm Brecheen, the procedural bar should apply in cases such as this where each Petitioner was represented by new counsel on direct appeal and their claims of ineffective assistance do not touch on matters outside of the appellate record.

In response, Petitioners argue that...

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