161 F.3d 1249 (10th Cir. 1998), 97-6439, Miller v. Champion

Docket Nº:97-6439.
Citation:161 F.3d 1249
Party Name:Arthur Donnell MILLER, Jr., Petitioner-Appellant, v. Ron CHAMPION, Respondent-Appellee.
Case Date:November 24, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1249

161 F.3d 1249 (10th Cir. 1998)

Arthur Donnell MILLER, Jr., Petitioner-Appellant,


Ron CHAMPION, Respondent-Appellee.

No. 97-6439.

United States Court of Appeals, Tenth Circuit

November 24, 1998

Page 1250

[Copyrighted Material Omitted]

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Arthur Donnell Miller, Jr., pro se.

W.A. Drew Edmondson (Attorney General of Oklahoma) and Patrick T. Crawley (Assistant Attorney General of Oklahoma), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Arthur Donnell Miller, Jr. filed this pro se appeal after the district court, without holding an evidentiary hearing, denied his 28 U.S.C. § 2254 petition for a writ of habeas corpus and also denied his subsequent request for a certificate of appealability. In August, we issued a certificate of appealability to Mr. Miller and ordered the respondent, Ron Champion, to file a brief addressing several issues that Mr. Miller raised in his petition. After reviewing Mr. Champion's response brief, we now vacate the district court's decision denying Mr. Miller's petition and remand for an evidentiary hearing. 1


After Mr. Miller shot and killed a man, he was charged in Oklahoma state court with first-degree murder. Following negotiations with the prosecutor, Mr. Miller pleaded guilty to a reduced charge of second-degree murder and was sentenced to 38 years imprisonment. Although Mr. Miller did not directly appeal his conviction, he did file a petition for post-conviction relief in state district court. In his petition, Mr. Miller alleged that he had received ineffective assistance of counsel because his attorney had failed to inform him that one of the elements of second-degree murder under Oklahoma law is that a defendant act with a "depraved mind." See Okla. Stat. tit. 21, § 701.8(1). Mr. Miller asserted that had he known that depraved mind was an element of second-degree murder, he would not have pleaded guilty and would have instead insisted on proceeding to trial.

The state district court denied Mr. Miller's petition, ruling that his failure to appeal his conviction directly barred him from obtaining habeas relief and, in addition, that he had

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failed to demonstrate that his counsel's performance was constitutionally deficient. On appeal, the Oklahoma Court of Criminal Appeals affirmed this ruling.

Mr. Miller then filed the instant § 2254 petition in federal court, once again alleging ineffective assistance of counsel based on his attorney's failure to inform him of the "depraved mind" element of second-degree murder. The district court referred the case to a magistrate judge. In his report and recommendation, the magistrate recommended dismissal of the petition; although the magistrate found that Mr. Miller's petition was not barred by his failure to file a direct appeal, he nonetheless found that Mr. Miller had failed to demonstrate that his counsel had performed ineffectively. Over Mr. Miller's objection, the district court adopted the magistrate's report and recommendation and dismissed the petition. The court subsequently denied Mr. Miller's request for a certificate of appealability.

Mr. Miller then appealed both the district court's denial of his § 2254 petition and its denial of his request for a certificate of appealability. After reviewing Mr. Miller's petition and concluding that he had made a substantial showing of the denial of his Sixth Amendment right to the effective assistance of counsel, we granted his request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).


I Procedural Bar

In response to Mr. Miller's petition, Mr. Champion contends that Okla. Stat. tit. 22, § 1086 and Jones v. State, 704 P.2d 1138 (Okla.Crim.App.1985), bar Mr. Miller from obtaining post-conviction relief. These authorities provide that under Oklahoma law, a petitioner who fails to raise a claim on direct appeal and does not demonstrate sufficient reason for such failure is barred from obtaining relief on that claim in a subsequent collateral proceeding. See Jones, 704 P.2d at 1138-39; see also McCracken v. State, 946 P.2d 672, 676 (Okla.Crim.App.1997); Neill v. State, 943 P.2d 145, 148 (Okla.Crim.App.1997).

However, notwithstanding Oklahoma state law to the contrary, we have held that a state prisoner may raise an ineffective assistance of counsel claim for the first time in a § 2254 proceeding unless (1) he had an opportunity to consult with separate counsel on direct appeal in order to obtain an effective assessment of trial counsel's performance and (2) the State provided a procedural mechanism that afforded him an opportunity to develop adequately the factual basis of his ineffective assistance claim on direct appeal. See English v. Cody, 146 F.3d 1257, 1263 (10th Cir.1998). In this case, the record contains no evidence that Mr. Miller had the opportunity to consult with separate appellate counsel in order to evaluate his attorney's performance or that Oklahoma provided him with any procedural mechanism to develop the factual basis of his ineffective assistance claim on direct appeal. Accordingly, Mr. Miller's habeas petition is not barred, and we may proceed to the merits of his claim.

II Standards of Review

In his petition, Mr. Miller alleged that he was denied his Sixth Amendment right to effective assistance of counsel. The district court dismissed the petition without conducting an evidentiary hearing.

Prior to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), to be entitled to an evidentiary hearing, a petitioner was first required to "make allegations which, if proved, would entitle him to relief." Medina v. Barnes, 71 F.3d 363, 366 (10th Cir.1995). If the petitioner made the requisite allegations, he was entitled to an evidentiary hearing only if " 'the facts [were] in dispute, [and he] did not receive a full and fair evidentiary hearing in a state court.' " Id. at 369 (quoting Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)). Mr. Miller, though, filed his habeas petition after Congress enacted the AEDPA. Thus, we must consider the effect of the AEDPA on standards governing evidentiary hearings.

28 U.S.C. § 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in State court

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proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Thus, "[t]he petitioner who seeks an evidentiary hearing in federal court must now clear the 'initial hurdle' of § 2254(e)(2) before the court can proceed to determine whether an evidentiary hearing is otherwise proper or necessary." Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.1998) (citation and quotation omitted). Consequently, we begin by asking whether Mr. Miller has "failed to develop the factual basis of a claim in State court." See 28 U.S.C. § 2254(e)(2). If he has, we must deny hearing unless he establishes that one of the two exceptions set forth in § 2254(e)(2) applies. "If, on the other hand, the applicant has not 'failed to develop' the facts in state court, [we] may proceed to consider whether a hearing is appropriate, or required under [pre-AEDPA standards]." Cardwell, 152 F.3d at 337.

Although the record indicates that Mr. Miller requested an evidentiary hearing in state court, the court denied this request. See Rec. doc. 10, Exh. A, at 11; id. doc. 2, at 3. We now join every other circuit that has confronted this question and hold that where, as here, a habeas petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so, § 2254(e)(2) does not apply. See Cardwell, 152 F.3d at 337; McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998); Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 462, 139 L.Ed.2d 395 (1997); Jones v. Wood, 114 F.3d 1002, 1012-13 (9th Cir.1997); Love v. Morton, 112 F.3d 131, 136 (3d Cir.1997). Accordingly, the AEDPA does not preclude Mr. Miller from receiving an evidentiary hearing. Thus, Mr. Miller is entitled to receive an evidentiary hearing so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief. See Medina, 71 F.3d at 368-69.

A petitioner is entitled to a writ of habeas corpus only if he can demonstrate that his conviction is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has set forth a two-part test for evaluating the claim of a habeas petitioner who is challenging his guilty plea on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. First, we must ask whether "counsel's representation fell below an objective standard of reasonableness." Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate...

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