Bonney v. Wilson

• Decision Date: 29 March 2016
• Docket Number: No. 15–8010.,15–8010.
• Citation: 817 F.3d 703
• Parties: Steven D. BONNEY, Petitioner–Appellant, v. Eddie WILSON, Warden, Wyoming State Penitentiary ; Robert Lampert, Director, Wyoming Department of Corrections ; Peter K. Michael, Wyoming Attorney General, Respondents–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

817 F.3d 703

Steven D. BONNEY, Petitioner–Appellant,

v.Eddie WILSON, Warden, Wyoming State Penitentiary ; Robert Lampert, Director, Wyoming Department of Corrections ; Peter K. Michael, Wyoming Attorney General, Respondents–Appellees.

No. 15–8010.

United States Court of Appeals, Tenth Circuit.

March 29, 2016.

Diane E. Courselle, Laramie, WY, University of Wyoming College of Law, for Petitioner–Appellant.

David L. Delicath, Deputy Attorney General, (Peter K. Michael, Attorney General, with him on the brief) Office of the Attorney General for the State of Wyoming, Cheyenne, WY, for Respondents–Appellees.

Before GORSUCH, BACHARACH, and McHUGH, Circuit Judges.

BACHARACH

, Circuit Judge.

This appeal involves a habeas action brought by Mr. Steven Bonney. When Mr. Bonney was 17, five of his child relatives accused him of sexual abuse. Mr. Bonney entered into a plea agreement with the State of Wyoming and pleaded guilty to charges involving two of the children. The state district court accepted the plea, entering a judgment of conviction and sentencing Mr. Bonney to two consecutive terms of 15–20 years' imprisonment (with the second term suspended in favor of probation for 15 years). Mr. Bonney soon regretted his plea and sought post-conviction relief, arguing that his trial counsel had been ineffective. The state district court denied relief on some claims and granted summary judgment to the State on other claims. Mr. Bonney then brought this federal habeas action. The federal district court granted habeas relief, but we reversed.¹ On remand the district court granted summary judgment to the respondents, and Mr. Bonney appeals. We reverse in part and affirm in part.

I. Mr. Bonney did not commit a procedural default on his habeas claim involving trial counsel's failure to adequately investigate the children's accounts.

In the habeas petition, Mr. Bonney claimed in part that his trial counsel had failed to adequately investigate the children's accounts. The state district court declined to consider the merits of this claim, reasoning that Mr. Bonney had not raised the claim through a direct appeal. As a result, the federal district court considered the habeas claim procedurally defaulted.

But a direct appeal would have required Mr. Bonney's trial counsel to allege his own ineffectiveness, and the Wyoming courts have not evenhandedly required attorneys to raise their own ineffectiveness on direct appeal. For this reason, the procedural requirement, as applied by the state district court, did not constitute an adequate basis for procedural default. In these circumstances, the federal district court should have considered the merits of the habeas claim.

A. We do not address issues defaulted in state court based on a state procedural ground that is independent and adequate.

On habeas review, we do not address issues that were decided in state court on an independent and adequate state procedural ground. English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998)

. The issue here is whether the state procedural ground is "adequate."² A state procedural ground is adequate only if it has been applied "evenhandedly to all similar claims." Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982).

B. The state district court concluded that Mr. Bonney should have filed a direct appeal to assert this claim.

The state procedural ground at issue here is based on Wyo. Stat. Ann. § 7–14–103(a)(i)

, which states that post-conviction relief is ordinarily unavailable if the claim could have been raised on direct appeal but wasn't. This statute is implicated because Mr. Bonney did not file a direct appeal; he instead asserted this claim for the first time in a post-conviction application. The state district court disapproved of this tactic, concluding that Mr. Bonney could have raised the claim on direct appeal but had failed to do so. Thus, relying on Wyo. Stat. Ann. § 7–14–103(a)(i), the state district court granted summary judgment to the State on Mr. Bonney's claim.

C. We apply de novo review of the federal district court's ruling.

On habeas review, the federal district court concluded that the state procedural ground was adequate for purposes of procedural default. We review this conclusion de novo. See Anderson v. Att'y Gen., 342 F.3d 1140, 1143 (10th Cir.2003)

("This court reviews de novo whether claims are procedurally barred.").

D. The respondents bore the burden of proving that the state procedural ground was adequate even though Mr. Bonney lacked separate appellate counsel.

In conducting this review, we note that the respondents bear the burden of proof because procedural default is an affirmative defense. Hooks v. Ward, 184 F.3d 1206, 1216–17 (10th Cir.1999)

. Thus, the respondents had to prove in federal district court that the State of Wyoming had evenhandedly applied § 7–14–103(a)(i) to all similar claims. See Part I(A), above.

E. The state procedural ground is inadequate here because Wyoming courts have not evenhandedly required trial attorneys to allege their own ineffectiveness in a direct appeal.

Mr. Bonney argues that the state procedural ground is not adequate because his only attorney during the period for an appeal was the attorney who had handled the trial. In Mr. Bonney's view, Wyoming courts have not evenhandedly required trial attorneys to assert their own ineffectiveness in a direct appeal. We agree.

The Wyoming Supreme Court has considered it "questionable" for attorneys to allege their own ineffectiveness. Keats v. State, 115 P.3d 1110, 1117 (Wyo.2005)

. The court has also expressed skepticism about such an allegation when the defendant's trial and appellate attorneys are not independent from one another. Id. For example, in Keats v. State, the defendant's appellate counsel considered herself a subordinate of the defendant's trial counsel. Id. In light of this relationship between the attorneys, the Wyoming Supreme Court applied cases stating "that it is not appropriate or expected for one to raise one's own ineffectiveness." Id.³

Against this backdrop, the respondents have not identified a single case in which Wyoming courts applied § 7–14–103(a)(i)

when

• the defendant's appellate counsel also served as trial counsel or

• the defendant's only attorney during the appeal period also handled the trial.

See Oral Arg. 31:41–32:03 (concession by the respondents that the Wyoming Supreme Court has never applied § 7–14–103(a)(i)

when the same attorney represented the defendant at trial and in the direct appeal). Thus, § 7–14–103(a)(i) cannot serve as an adequate basis for a procedural default. See Neill v. Gibson, 263 F.3d 1184, 1193 (10th Cir.2001) (stating that Oklahoma's "procedural bar ... is not adequate to preclude habeas review of [the habeas petitioner's] ineffective-assistance claim because the same attorney represented [the petitioner] both at trial and on direct appeal"); Walker v. Gibson, 228 F.3d 1217, 1231–32 (10th Cir.2000)

("[T]he claim is not procedurally barred because [the habeas petitioner] had the same counsel at trial and on appeal.").

The respondents argue that in our unpublished opinion in Teniente v. Wyoming Attorney General, we held that the procedural requirements in § 7–14–103(a)(i)

are considered adequate for procedural default. 412 Fed.Appx. 96 (10th Cir.2011) (unpublished). Indeed, they ordinarily are. But Teniente involved claims of prosecutorial misconduct and evidentiary error, not ineffective assistance. 412 Fed.Appx. at 101. As a result, we did not address the adequacy of the procedural requirements in § 7–14–103(a)(i) when the habeas claim would involve an attorney's allegation of his own ineffectiveness. See id. Thus, Teniente did not involve our issue.⁴

F. The alleged procedural default cannot be based on Mr. Bonney's appeal waiver.

In concluding that the habeas claim was procedurally defaulted, the federal district court pointed to Mr. Bonney's waiver of his right to appeal. But for two reasons, the appeal waiver cannot serve as the basis for a procedural default: (1) the waiver was not invoked in state court, and (2) Wyoming courts have not evenhandedly enforced appeal waivers when defendants attribute their guilty pleas to ineffective legal representation.

First, the state district court did not mention the appeal waiver. Even here, the respondents do not argue that the appeal waiver would support a procedural default. See, e.g., Appellees' Resp. Br. at 13–15; Oral Arg. at 24:47–24:54. That is understandable because § 7–14–103(a)(i)

would not apply to an appeal waiver. This section expressly covers the failure to raise an argument in a direct appeal, but says nothing about the waiver of a right to appeal. Thus, in relying on § 7–14–103(a)(i), the state district court relied on the failure to assert the claim in a direct appeal, not Mr. Bonney's waiver of his right to appeal.

Second, Wyoming courts have not evenhandedly enforced appeal waivers to preclude consideration of ineffective assistance claims. Wyoming courts apply a three-part test to determine the enforceability of an appeal waiver:

1. Does the appeal fall within the scope of the appeal waiver?

2. Did the defendant knowingly and voluntarily waive appellate rights?

3. Would enforcement result in a miscarriage of justice?

Henry v. State, 362 P.3d 785, 789 (Wyo.2015)

. In determining whether enforcement would result in a miscarriage of justice, Wyoming courts consider whether the defendant lacked effective assistance of counsel in negotiating the waiver. Id. at 790.

Mr. Bonney's appeal waiver was contained in his plea agreement. Mr. Bonney attributes that plea agreement to ineffective assistance, claiming that his attorney exaggerated the benefits of the agreement and underestimated the potential for an acquittal. The Wyoming Supreme Court has never addressed the validity of an appeal waiver that was allegedly the product of ineffective assistance. As a result, the respondents have not shown evenhanded enforcement of appeal waivers in...