Wesselman v. Seabold, 86-5397

• Decision Date: 06 January 1988
• Docket Number: No. 86-5397,86-5397
• Citation: 834 F.2d 99
• Parties: Bruce B. WESSELMAN, Petitioner-Appellant, v. William SEABOLD, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 99

834 F.2d 99

Bruce B. WESSELMAN, Petitioner-Appellant, v. William SEABOLD, Warden, Respondent-Appellee.

No. 86-5397.

United States Court of Appeals, Sixth Circuit.

Argued April 3, 1987.

Decided Nov. 20, 1987.

Rehearing and Rehearing En Banc Denied Jan. 6, 1988.

John P. Rall (argued), Paducah, Ky. (Court-appointed), for petitioner-appellant.

David Armstrong, Atty. Gen. of Kentucky, Robert Hensley (argued), Frankfort, Ky., for respondent-appellee.

Before KEITH, KENNEDY and RYAN, Circuit Judges.

RYAN, Circuit Judge.

This is an appeal from the district court's denial of appellant's petition for a writ of habeas corpus. It is a procedurally complex case in which the primary issue for decision is whether an adequate and independent state procedural ground justifies the district court's refusal to entertain the appellant's constitutional challenge to his state court guilty plea to trafficking in narcotics. Appellant also claims to have been denied the effective assistance of counsel. We hold that the district court properly deferred to the state court decision, and that the appellant was not denied the effective assistance of counsel. Accordingly, we affirm the district court's denial of habeas relief.

I.

Appellant was convicted of drug trafficking and sentenced to ten years in prison. In July 1982, the conviction was reversed by the Kentucky Court of Appeals. While the Commonwealth of Kentucky's petition for rehearing was pending, the appellant was reindicted. He entered into a so-called Alford plea agreement in which he agreed to plead guilty to the original narcotics trafficking charge in return for a sentence equal to the 18-months confinement he had already served. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court accepted the plea under the conditions stipulated, and entered judgment in August 1982.

Six months later, on February 4, 1983, appellant was indicted on four new counts of first-degree robbery and one count of being a persistent felony offender (PFO). One of the convictions comprising the PFO charge was the earlier drug trafficking conviction resulting from the Alford plea. Following a trial, the jury found the appellant guilty on all counts.

Wesselman then launched a collateral attack upon the trafficking conviction by way of Kentucky Civil Rule 60.02, seeking post-conviction relief and challenging the constitutionality of his Alford plea. ¹ He also raised issues concerning the permissibility of Alford pleas in Kentucky, and the absence of a pre-sentence investigative report. Despite having misgivings about the procedural correctness of appellant's Rule 60.02 motion, the trial court proceeded to consider the motion as a petition for post-conviction relief and denied relief on the merits, stating:

The record reflects no appeal on the above-referenced Judgment and no prior motion under RCr. 11.42.

Initially, the Court is of the opinion that a motion under RCr. 11.42 must be filed prior to a motion under CR 60.02, and, therefore, Defendant's motion herein is premature. Gross v. Commonwealth, 30 K.L.S. 4, page 9 (March 31, 1983) [648 S.W.2d 853 (Ky.1983) ].

Notwithstanding Gross v. Commonwealth, the Court will proceed with a ruling on the merits of Defendant's motion, inasmuch as a full hearing was conducted on the issues.

As though reading the foregoing passage as a signal, appellant filed a second petition for post-conviction relief, this time under Ky.RCr. 11.42. While it was pending, he voluntarily dismissed his appeal from the denial of the earlier Ky.CR 60.02 motion. The Rule 11.42 motion raised the very same issues regarding the Alford plea and the presentence report that were decided adversely to appellant in the withdrawn 60.02 proceeding. In addition, the appellant claimed (1) that the trial court lacked jurisdiction to accept the Alford plea because the Commonwealth's petition for rehearing on the original reversal of the trafficking conviction was pending in the Court of Appeals simultaneously, and (2) that he was denied the effective assistance of counsel when the plea was entered. The trial court considered all the issues on the merits, including the Alford plea and pre-sentence investigation issues that were earlier resolved in the Rule 60.02 hearing, and denied the petition. This appeal followed.

Upon the authority of Crick v. Commonwealth, 550 S.W.2d 534 (Ky.1977) (per curiam), the Kentucky Court of Appeals refused to consider the defendant's Alford plea and presentence report issues because those issues had been finally decided against the defendant in the proceeding on his Rule 60.02 application. The court held that because appellant withdrew his appeal, the trial court's decision on the merits of those issues had become final, and accordingly, the appellant was not entitled to relitigate those issues in any subsequent proceeding for post-conviction relief. Id., at 535. The appeals court did, however, consider the two issues that had not been raised in the defendant's Rule 60.02 application: (1) whether the trial court had jurisdiction to accept the plea, and (2) appellant's claim that he was denied the effective assistance of counsel. Rejecting those claims, the appeals court affirmed the trial court's decision denying post-conviction relief, and the Kentucky Supreme Court denied discretionary review.

The appellant then filed the instant petition for habeas corpus in the federal district court, raising four grounds for relief: (1) that Alford pleas are improper in Kentucky and appellant's plea was improperly taken; (2) that he had involuntarily waived his presentence report; (3) that the court lacked jurisdiction to accept the plea; and (4) that appellant was denied the effective assistance of counsel. The district court adopted the magistrate's report and recommendation that the petition be denied. As to the Alford plea and presentence report issues, the magistrate stated:

The Kentucky court decided Wesselman's claim on the basis of an independent and adequate state procedural ground pursuant to Crick v. Commonwealth, Ky., 550 S.W.2d 534 (1977). It is clear that such decision bars the federal courts from addressing these issues on habeas corpus. See Wainwright v. Sykes, 433 U.S. 72 [97 S.Ct. 2497, 53 L.Ed.2d 594] (1977); County Court of Ulster County, New York v. Allen, 442 U.S. 140 [99 S.Ct. 2213, 60 L.Ed.2d 777] (1979) (citation omitted).

Appellant's argument that the Kentucky state court was without jurisdiction to accept the Alford plea because a petition for rehearing of the previous appeal was pending in the Court of Appeals was rejected in deference to the state court's decision, and the ineffective assistance of counsel claim was again denied on the merits.

II.

In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986) we held:

When a state argues that a habeas claim is precluded by the petitioner's failure to observe a state procedural rule, the federal court must go through a complicated analysis. First, the court must determine that there is a state procedural rule that is applicable to petitioner's claim and that the petitioner failed to comply with the rule.

Kentucky has a rule of procedure, common to every state, requiring litigants, civil or otherwise, who are disappointed by an adverse decision in the trial court to timely appeal such a decision. The consequence of failing to appeal is that the trial court's decision becomes final and binding upon the parties involved. See Crick, 550 S.W.2d at 535. It is clear that the appellant in this case failed to comply with this procedural rule.

The second consideration under Maupin is whether, in the case at hand, the state courts actually enforced the sanction for failing to comply with the procedural rule. 785 F.2d at 138. There is no doubt that Kentucky has applied the rule in this case. Because appellant did not prosecute an appeal from the denial of his Rule 60.02 application for post-conviction relief, he was not entitled to relitigate any issues decided in that proceeding. Therefore, even though the trial court in the second proceeding actually considered the Alford plea and presentence report issues a second time, the appeals court refused to review those issues on appeal from that subsequent denial under Rule 11.42. ²

The third Maupin consideration is whether the state procedural ground is "independent and adequate," 785 F.2d at 138; see also County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), which turns on the substantiality of the state interest involved. Kentucky's interests in finality of judgments, judicial economy, and permitting defendants just "one bite of the apple" are both obvious and substantial. See Gross v. Commonwealth, 648 S.W.2d 853 (Ky.1983).

Finally,

[o]nce the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate ... that there was "cause" for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin, 785 F.2d at 138. Accord Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In the support of his argument that there was "cause" for his procedural default, appellant points to the trial court's opinion in which appellant's Rule 60.02 application was rejected with the admonition that, a Rule 11.42 application would have been the proper procedure. In Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky.1983), relied upon by the trial court and cited in its opinion, the Kentucky Supreme Court stated:

[W]e hold that a defendant is required to avail himself of...