Clayton v. Jones

• Decision Date: 16 November 2012
• Docket Number: No. 11–7000.,11–7000.
• Citation: 700 F.3d 435
• Parties: James Edward CLAYTON, Petitioner–Appellee, v. Justin JONES, DOC Director, Respondent–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

700 F.3d 435

James Edward CLAYTON, Petitioner–Appellee,

v.Justin JONES, DOC Director, Respondent–Appellant.

No. 11–7000.

United States Court of Appeals,Tenth Circuit.

Nov. 16, 2012.

E. Scott Pruitt, Attorney General, and Dianne L. Slayton, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, on the briefs for Respondent–Appellant.

Fred P. Gilbert of Tulsa, OK, on the brief for Petitioner–Appellee.

Before BRISCOE, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

James Clayton, a state prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, contending he received ineffective assistance of counsel when his attorney ignored his repeated instructions to file an appeal after he pled guilty. The magistrate judge found that Mr. Clayton's attorney disregarded his request to file an appeal and recommended that the district court conditionally grant the writ and order that Mr. Clayton be allowed to withdraw his guilty plea within 120 days. The district court agreed and so held. On appeal, the State contends the district court's finding is clearly erroneous. It argues alternatively that even if habeas relief is warranted, the district court should have only allowed Mr. Clayton an out of time direct appeal, rather than the right to withdraw his guilty plea.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the finding that Mr. Clayton received ineffective assistance of counsel on appeal. We order a limited remand to the district court to allow it to supplement the record with its reasons for ordering as the remedy that Mr. Clayton be permitted to withdraw his guilty plea. We will retain jurisdiction over the appeal while the district court supplements the record.

I. BACKGROUND

A. Procedural History

In 1983, Mr. Clayton, acting pro se, pled guilty to second degree murder and other charges arising from a robbery which resulted in the death of a woman who was struck by Mr. Clayton's car as he was attempting to elude police. We described in our first decision involving Mr. Clayton's conviction what then occurred:

Several days later, petitioner sought to withdraw his guilty plea on several grounds, including that he was not competent to enter the plea. The trial court appointed counsel to represent petitioner and ordered that his mental status be evaluated. The court subsequently held an evidentiary hearing, after which it denied the motion to withdraw the plea. Petitioner appealed, challenging the validity of his plea on three grounds, including that he was not competent to enter the plea because he had a mental impairment and he was under the influence of drugs at the time of the plea. The Oklahoma Court of Criminal Appeals (OCCA) rejected his arguments and affirmed his convictions.

Thereafter, petitioner filed a motion for post-conviction relief in which he raised several new challenges to the validity of his plea and to the propriety of his sentence and he asserted a claim for ineffective assistance of appellate counsel for failing to raise these additional issues on direct appeal. The trial court denied his post-conviction application, and the OCCA affirmed. The OCCA first concluded that petitioner had waived any claims of ineffective assistance of trial counsel by failing to raise them on direct appeal, where he was represented by different counsel. The court then considered petitioner's claim that his appellate counsel had provided ineffective assistance, and rejected that claim on the merits.

Clayton v. Oklahoma (Clayton I), No. 98–7105, 1999 WL 1037510, at *1 (10th Cir. Nov. 12, 1999) (unpublished).

After exhausting his claims in state court as described above, Mr. Clayton filed a federal habeas action in 1996 claiming, among other things, his 1983 guilty plea was involuntary due to ineffective assistance of counsel. In 1999, we reversed the district court's 1998 conclusion that the claim was procedurally barred and remanded for further proceedings.

The magistrate judge held an evidentiary hearing on Mr. Clayton's claims and issued a recommendation in March 2003 that Mr. Clayton be granted habeas relief. The magistrate judge found that Mr. Clayton had been forced to choose between going to trial with ineffective counsel or proceeding pro se. Aple. Cross–App., vol. I at 4. The judge further found that Mr. Clayton's waiver of counsel was not knowing and intelligent. Id. at 5. The district court agreed, conditionally granted the writ, and ordered that Mr. Clayton be allowed to withdraw his plea within 120 days.

Back in state court, in September 2004 Mr. Clayton again entered a blind guilty plea to five counts, including second degree murder. He received a life sentence for the murder charge.¹ He was represented by counsel, Mr. Albert Hoch, Jr. During the plea and sentencing proceedings, the state district court informed Mr. Clayton that he had a right to appeal the decision and that he had ten days in which to do so. The court also asked Mr. Hoch to “stay on as [Mr. Clayton's] attorney for a period of ten days” and “stay on through any appeal time that might run.” Aplt.App., vol. I at 129. Neither an application to withdraw the plea nor a direct appeal was filed.

In August 2005, Mr. Clayton filed pro se an application for post-conviction relief in the state district court contending, inter alia, that his attorney made false pre-plea promises to him and that he had received ineffective assistance of counsel when his attorney ignored his repeated requests to file a direct appeal. Without holding an evidentiary hearing, the court (the same judge who took Mr. Clayton's September 2004 guilty plea) issued a lengthy decision denying Mr. Clayton's application on the merits. The court relied on the transcript of the September 15, 2004, plea hearing and its own familiarity with Mr. Clayton's case in rejecting his petition. See Aple.App., Vol. I at 62 (“It is the finding of this Court that [Mr. Clayton] has not met his burden of showing that counsel's performance was deficient and further finds that [Mr. Clayton] was represented at all stages of this matter by experienced and competent attorney who provided him effective assistance of counsel.”). Ultimately, the court concluded as follows:

The Court has before it a 60 year old Defendant/Petitioner that is very savvy of the court system, and has earned over 360 college hours while in prison. The Court, Prosecution and Defense went over every aspect of the blind plea meticulously, ever mindful of the fact that this Defendant/Petitioner has tried for twenty-two years to get a rehearing in this case, wanted to make sure that Defendant/Petitioner was fully aware of what he was doing and understood all consequences, that he understood that he had a right to continue to jury trial in five days, and that he was satisfied with the representation of his attorney. The Court is fully and completely satisfied that Defendant/Petitioner knowingly, willingly, and intelligently entered this blind plea and that it was proper in all respects. Further, from the correspondence received from the Defendant after the sentencing, this Court is fully satisfied that Defendant did not wish to withdraw this plea. The Defendant had no grounds on which to withdraw his plea, and has stated no grounds upon which to base a withdraw [sic] of his plea.

The Court feels that this Defendant did not wish to withdraw his plea and was satisfied and wished to proceed to the parole board, and that Defendant did not become dissatisfied with his plea until he was denied parole.

Id. at 63–64.

Mr. Clayton appealed the state district court's ruling to the OCCA. In a written order issued on December 20, 2005, the OCCA affirmed denial of post-conviction relief, holding Mr. Clayton's claims procedurally barred because they could have been raised on direct appeal. The OCCA outlined in detail and agreed with the trial court's analysis of Mr. Clayton's claims for relief. See id. at 108 (“We find nothing in this record supporting [Mr. Clayton's] claim that his pleas were not knowing and voluntarily entered, nor do we find support for [Mr. Clayton's] claims that he was denied effective assistance of counsel.”). Neither the state district court nor the OCCA made a finding with regard to whether Mr. Clayton had asked Mr. Hoch to file an appeal.

Mr. Clayton again filed a petition for habeas relief in federal district court. The district court denied the petition as procedurally barred. In Clayton II, we granted a certificate of appealability on the issue of whether counsel's alleged failure to enter an appeal on behalf of Mr. Clayton constituted ineffective assistance of counsel. We rejected the notion that a criminal defendant's relative sophistication as a pro se litigant could be a sufficient basis for denying an ineffective assistance of counsel claim that his attorney had disregarded specific instructions to appeal. We explained, “That a particular litigant demonstrates knowledge of the judicial process does not lessen his entitlement under the Sixth Amendment to ‘the Assistance of Counsel for his defense.’ ” Id. at 424 (quoting U.S. Const. amend. VI (emphasis added)). “When counsel fails to follow explicit instructions to file an appeal, a defendant is entitled to a new appeal, regardless of whether an appeal had or would likely have had any merit.” Id. at 423 (citing Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir.2005)). We vacated the district court judgment and remanded “for a hearing to determine whether Mr. Clayton requested counsel to file an appeal.” Id. at 425.

B. Evidentiary Hearing

At the evidentiary hearing before a magistrate judge, Mr. Clayton introduced the testimony of six witnesses, including himself. Mr. Clayton testified that before his plea hearing, Mr. Hoch told him that if he entered a guilty plea to the charges, he would be home by...