Klein v. Neal, 94-1431

• Decision Date: 17 January 1995
• Docket Number: No. 94-1431,94-1431
• Citation: 45 F.3d 1395
• Parties: Bret S. KLEIN, Petitioner-Appellant, v. Donice NEAL; Gale Norton, Attorney General of the State of Colorado, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1395

45 F.3d 1395

Bret S. KLEIN, Petitioner-Appellant, v. Donice NEAL; Gale Norton, Attorney General of the State of Colorado, Respondents-Appellees.

No. 94-1431.

United States Court of Appeals Tenth Circuit.

Jan. 17, 1995.

Bret S. Klein, on the brief pro se.

Appellees did not file a brief.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Bret S. Klein, appearing pro se, brings this appeal challenging the district court's dismissal of his habeas corpus petition. The district court dismissed the petition because Mr. Klein failed to carry his burden of overcoming a procedural bar to his ineffective assistance of counsel claim by demonstrating either cause and prejudice for his default or that a fundamental miscarriage of justice would occur if we did not address the merits of his claim. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

BACKGROUND

The facts, briefly stated, are as follows. In 1986, Mr. Klein was charged with burglary and theft in Colorado state court. Due to his prior record, he was subject to habitual criminal charges. In March of that year, Mr. Klein entered into a plea agreement whereby he would plead guilty to felony theft in exchange for dismissal of the burglary charge and non-prosecution of the habitual criminal charges. The plea was accepted and sentence imposed on July 10, 1986.

In April 1991, almost five years after he pled guilty to the 1986 theft charges, Mr. Klein filed a motion in Colorado state court pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, claiming his 1986 plea of guilty was the product of ineffective assistance Mr. Klein appealed this determination to the Colorado Court of Appeals who affirmed the decision to deny relief, albeit solely on the basis that Mr. Klein's motion was untimely. The court did not reach the alternative disposition on the merits. See People v. Klein, No. 91CA1786 (Colo.App. Mar. 25, 1993) (unpublished opinion). After Mr. Klein's petition for review by writ of certiorari was denied by the Colorado Supreme Court, he filed the present petition for a writ of habeas corpus in federal court. The sole claim presented in his federal petition is whether he received ineffective assistance of counsel during his plea negotiations and plea.

                of counsel. 1  Mr. Klein alleges he only accepted the plea agreement because his lawyer "would not do any investigation or attempt to forulate [sic] and prepare any type of defense."   In September 1991, the Colorado state court held an evidentiary hearing on Mr. Klein's claim and ultimately rejected it as untimely under Sec. 16-5-402 2 and, in the alternative, 3 as non-meritorious
                

The matter was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1), who recommended the petition be dismissed because the Colorado Court of Appeals' ruling rested on an adequate and independent state ground, thereby constituting a procedural bar to federal habeas corpus review. The magistrate judge further found Mr. Klein had failed to make a sufficient showing to override the application of a procedural bar. Over Mr. Klein's objection, the district court agreed and dismissed the petition. The district court thereafter issued a certificate of probable cause and this appeal ensued.

DISCUSSION

In determining whether the magistrate judge, and the district court, properly concluded this claim was procedurally barred, we must resolve two issues. First, does the Colorado Court of Appeals' ruling constitute an "adequate" ground for disposition "independent" of federal law? If so, then has Mr. Klein made a sufficient showing of either "cause and prejudice" or that a "fundamental miscarriage of justice" would occur so as to allow us to reach the merits of his claim.

A.

1.

It is now beyond cavil that the adequate and independent state ground doctrine is fully applicable to federal court review of habeas corpus petitions. See Wainwright v. Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 2503-04, 2506-07, 53 L.Ed.2d 594 (1977); Brecheen v. Reynolds, 41 F.3d 1343, 1353-54 (10th Cir.1994). "A state court's finding is deemed to be 'adequate' if it is applied 'evenhandedly'; that is, if it is ' " 'strictly or regularly followed.' " ' " Id., at 1353 (citations omitted). "A state court's finding is considered 'independent if it is separate and distinct from federal law.' " Id.

In this case, construing Mr. Klein's pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam), he appears to claim Sec. 16-5-402 is not an "adequate" state ground because "there was reason for confusion or uncertainty" with regard to the application of the statute. While we agree with Mr. Klein that this statute has a tortured history, ⁴ we do not agree with his conclusion that this implies the statute is an inadequate basis on which to rest a procedural bar. Although phrased as a challenge to the adequacy of the statute, Mr. Klein's argument is really that the Rule 35(c) court did not have the benefit of the Colorado Supreme Court's decisions defining what constitutes "excusable neglect" and therefore a remand is necessary. We are not persuaded.

The Colorado Supreme Court's decisions in Wiedemer and Heitzman, which defined "excusable neglect" under Sec. 16-5-402(2)(d), did not alter the definition of those terms, thereby resulting in sporadic and uneven application of this statutory exception across similarly situated individuals; rather, those cases were simply judicial interpretations expounding on the meaning of that statutory exception. Therefore, while Mr. Klein is correct in his understanding of the law--that uneven application of that statute by the state courts would preclude reliance on it as a procedural bar to federal habeas corpus review because it is not an "adequate" ground--we discern no uneven application of Sec. 16-5-402(2)(d) by the Colorado courts across "the vast majority of cases." Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir.1991) (noting that a state procedural ground is adequate as long as it is applied regularly and evenhandedly in the vast majority of cases), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992). Therefore, we find this ground is in fact "adequate" to support application of a procedural bar.

2.

The determination that a state court judgment rested on an "adequate" ground, however, only resolves half of the issue. The next question is whether the decision rested on an "independent" ground. Because it is unclear whether Mr. Klein challenges this issue on appeal, and because of his pro se status, we address it anyway. The magistrate judge applied Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), to the Colorado Court of Appeals' decision, and found the state court's decision clearly indicated its reliance on state law, namely Sec. 16-5-402, and not federal law, thereby constituting an independent ground for its decision. While we agree with this conclusion, we believe the existing case law mandates a somewhat different analysis.

In Harris, the Supreme Court held "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Id. at 263, 109 S.Ct. at 1043 (citations and internal quotations omitted). The so-called "Harris presumption" embodies the notion that unless the state court judgment under review clearly and expressly indicates the court was relying on state law as the basis for its decision, ⁵ a claim will be presumed to have been decided as a matter of federal law and therefore not procedurally barred on federal habeas corpus review. This presumption, however, assumes the existence of an ambiguity ab initio as to whether the state court's decision relied on state or federal law; the presumption thus serves as a useful tool for deciding whether the state court relied on an "independent" ground. If, however, the state court decision does not even fairly appear to rest on federal law or to be interwoven with federal law, then application of the Harris presumption is unwarranted. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated "[a] predicate to the application of the Harris presumption is that the decision of the last state court to which the petitioner presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law." Id. at 735, 111 S.Ct. at 2557.

Coleman thus clarifies that the Harris presumption is applicable if, and only if, the predicate question of whether the state court decision fairly appears to rest primarily on federal law is first answered in the affirmative. If so, such that the state court decision could arguably be read as relying on both state and federal law, then application of the Harris presumption dictates the claim is not procedurally barred (i.e., the decision should be presumed to rest on federal law and is therefore not an "independent" ground) unless there is a clear indication by the state court to the contrary (i.e., a plain statement that it was relying on state law as the basis for the decision).

Coleman succinctly describes why the Harris presumption works in practice.

[I]n the majority of cases in which a state court decision fairly appears to rest primarily on federal law or to be interwoven with such law, and the state court does not plainly state that it is relying on an independent and adequate state ground, the state court decision did not in fact rest on an independent and adequate state ground. We accept errors in those small number of cases where there was nonetheless an independent and adequate state ground in exchange for a significant reduction in the costs of inquiry.

The tradeoff is very different when...