Barkell v. Crouse

Decision Date07 November 2006
Docket NumberNo. 05-8045.,05-8045.
Citation468 F.3d 684
PartiesGerald P. BARKELL, Petitioner-Appellant, v. Brent CROUSE, Warden, Crowley County Correctional Facility; R.O. Lampert, Director, Wyoming Department of Corrections; Patrick Crank, Wyoming Attorney General, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Christopher Humphrey, Student Intern, (Diane E. Courselle, Director, on the brief), Defender Aid Program, University of Wyoming, College of Law, Laramie, Wyoming, for Petitioner-Appellant.

David L. Delicath, Senior Assistant Attorney General, (Patrick J. Crank, Wyoming Attorney General, on the brief), Cheyenne, WY, for Respondents-Appellees.

Before HARTZ, HOLLOWAY, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Gerald Barkell was convicted by a jury in Wyoming state court on two counts of third-degree sexual assault. After initiating an appeal of his conviction, he sought a remand to the trial court for an evidentiary hearing regarding a claim of ineffective assistance of counsel. The Wyoming Supreme Court denied the request. Continuing his appeal without the benefit of an evidentiary hearing, Mr. Barkell contended that his trial counsel had been constitutionally ineffective in the preparation for and conduct of the trial, and that the Wyoming Supreme Court had denied him due process and a meaningful appeal by denying his motion for remand. On October 16, 2002, the court affirmed. Barkell v. State, 55 P.3d 1239, 1246 (Wyo.2002).

On January 14, 2004, Mr. Barkell submitted an application for habeas relief under 28 U.S.C. § 2254 in the United States District Court for the District of Wyoming, raising the same issues raised before the Wyoming Supreme Court. The district court denied relief but granted a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (requiring COA). Mr. Barkell now appeals to this court. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm with respect to the claims of denial of due process by the Wyoming Supreme Court and ineffective assistance of counsel during trial. But we reverse and remand for further proceedings on Mr. Barkell's claim that his attorney was ineffective in preparing for trial. Because (1) he presented allegations to the federal district court that, if true, would entitle him to relief; (2) he cannot be faulted for failure to develop the supporting evidence in state court; and (3) the state court has not ruled on whether he would be entitled to relief if he were able to prove his allegations, we do not defer to the state court's ruling on his ineffective-preparation claim and we grant him the opportunity to pursue that claim in federal district court.

I. BACKGROUND

Mr. Barkell was charged with sexual assault after his 10-year-old stepdaughter, BV, accused him of forcing her to engage in sexual acts on successive nights in early July 1999. Diane Lozano, an attorney with the Wyoming Public Defender's Office, was appointed to represent him. On October 26, 1999, Chris McQueen, a contract public defender, replaced Ms. Lozano and represented Mr. Barkell at trial on January 24 and 25, 2000. The jury returned guilty verdicts on two counts of third-degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii). Mr. Barkell was sentenced to consecutive terms of five-to-seven years' imprisonment on each count.

Mr. Barkell, again represented by the Wyoming Public Defender's Office, filed a timely appeal to the Wyoming Supreme Court on June 5, 2000. On February 23, 2001, he moved the court to remand the case to the trial court for "an evidentiary hearing to establish the factual basis for a claim of ineffective assistance of trial counsel based on the deficient performance by the trial counsel." Aplt.App. Vol. I at 86. On March 1 the court denied the motion without comment. It later affirmed Mr. Barkell's convictions.

Mr. Barkell's application under § 2254 claims (1) violation of his right under the Sixth and Fourteenth Amendments to effective assistance of counsel, and (2) violations of the rights to due process and a meaningful appeal by virtue of the Wyoming Supreme Court's denial of his motion for a limited remand. On April 20, 2005, the district court denied the application, stating that the Wyoming Supreme Court's adjudication of his claims was neither contrary to, nor an unreasonable application of, clearly established federal law.

II. DISCUSSION
A. Denial of Remand

On appeal Mr. Barkell contends that the state court's refusal to grant a limited remand to develop the record for his ineffectiveness claim violated his rights to due process and a meaningful appeal. The Wyoming Supreme Court rejected this contention, holding that Mr. Barkell could not "rely on mere allegations and speculation" to justify a remand. Barkell, 55 P.3d at 1246.

1. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a claim has been adjudicated on the merits in state court, a federal court will grant habeas relief only when the applicant establishes that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2).

Under the "contrary to" clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, relief is provided only if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Thus we may not issue a habeas writ simply because we conclude in our independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (internal quotation marks and citations omitted).

2. Merits

Under AEDPA's standard of review, Mr. Barkell is not entitled to relief on this claim. Mr. Barkell has identified no United States Supreme Court precedent at the time of the Wyoming court's decision that clearly established his right to an evidentiary hearing.

Mr. Barkell argues that "[w]hen the state provides an appeal of right, the defendant has a right to an appellate record that is adequate to present his claims on appeal." Aplt. Br. at 22. As authority for this proposition he cites Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); and Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971). Griffin held that the Constitution requires states to provide trial transcripts to indigent defendants appealing their convictions. See 351 U.S. at 19, 76 S.Ct. 585. Draper held that a state cannot circumvent Griffin by allowing an indigent defendant a free transcript only if the trial judge decides that the defendant's claims on appeal are not frivolous. See 372 U.S. at 499-500, 83 S.Ct. 774. And Mayer held that an indigent defendant is entitled to a free transcript for purposes of appeal even if he has been convicted only of a misdemeanor and fined rather than incarcerated. See 404 U.S. at 195-98, 92 S.Ct. 410. Thus, these cases all deal with an indigent defendant's right to obtain for appeal a transcript of judicial proceedings that would be available to those who can afford to pay for one, not, as here, an attempt to add to the record of those proceedings by conducting supplemental proceedings. They do not provide clearly established precedent for Mr. Barkell's argument.

In addition, Mr. Barkell cites Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 674 (1984); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), for the proposition that he was entitled to the effective assistance of counsel on his appeal. From that proposition he argues that an evidentiary hearing was necessary for his appellate counsel to provide adequate representation. But none of the cited cases addresses denial of an evidentiary hearing in the course of an appeal. Cuyler held that a defendant with a privately retained lawyer, like a defendant with appointed counsel, may raise a Sixth Amendment claim of ineffective assistance. See 446 U.S. at 344-45, 100 S.Ct. 1708. Cronic held that most claims of ineffective assistance require proof of deficient performance and that only rarely do the surrounding circumstances justify a presumption of ineffectiveness. See 466 U.S. at 658-62, 104 S.Ct. 2039. Strickland addressed the "meaning of the constitutional requirement of effective assistance," 466 U.S. at 686, 104 S.Ct. 2052, holding that to prove an ineffectiveness claim the defendant must show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, and that the deficiency prejudiced the defense, see id. at 687, 104 S.Ct. 2052. Evitts held that due process guarantees the effective assistance of counsel to a defendant pursuing a first appeal as of right. See 469 U.S. at 396, 105 S.Ct. 830. These cases simply do not consider the issue now before us. Attractive as Mr. Barkell's legal contention may be, he has not shown that the Wyoming Supreme Court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the...

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