Franklin v. Hawley

• Decision Date: 05 January 2018
• Docket Number: No. 16-4378,16-4378
• Parties: Jerry D. FRANKLIN, Petitioner–Appellee v. Josh HAWLEY, Respondent–Appellant T. C. Outlaw, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

879 F.3d 307

Jerry D. FRANKLIN, Petitioner–Appellee

v. Josh HAWLEY, Respondent–AppellantT. C. Outlaw, Respondent

No. 16-4378

United States Court of Appeals, Eighth Circuit.

Submitted: September 20, 2017

Filed: January 5, 2018

Rehearing and Rehearing En Banc Denied February 26, 2018

Jerry D. Franklin, Pro Se.

Jonathan Sternberg, JONATHAN STERNBERG, P.C., Kansas City, MO, for Petitioner–Appellee.

Andrew Crane, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO, for Respondent–Appellant Josh Hawley.

Stephen David Hawke, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO, for Respondent T. C. Outlaw.

Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Jerry Franklin sought habeas relief on the basis that his attorney in the underlying state-court proceeding failed to fulfill Franklin's explicit instruction to appeal his conviction and sentence. The district court granted the petition, finding that Franklin's procedural default of that claim was excused under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). We disagree because Martinez expressly does not excuse a procedural default that occurs in the appeal of a collateral state court proceeding. We therefore reverse.

I. Background

In 2009, Franklin intentionally drove his vehicle into a marked police car while he was fleeing the police. Two officers were injured, and methamphetamine was found in Franklin's vehicle. As a result, Franklin faced charges in both state and federal court: the state court case included two charges of assault on a law enforcement officer, and the federal case charged Franklin with possession of methamphetamine with intent to distribute. Franklin pled guilty to all charges. The district court sentenced Franklin to 216 months imprisonment on the federal count, and we affirmed. See United States v. Franklin, 695 F.3d 753, 755 (8th Cir. 2012). The state court sentenced Franklin to a 216–month term on each charge, to run concurrently with one another and with the federal sentence. At present, Franklin is incarcerated at a federal facility outside of Missouri.

Franklin filed this habeas petition under 28 U.S.C. § 2254, alleging that he was denied effective assistance of counsel because his attorneys did not appeal the state-court sentence after Franklin had explicitly directed them to do so. The district court noted that Franklin had not yet exhausted his available state remedies, so it stayed the case to allow Franklin to seek relief in the Missouri courts.

Franklin then filed a pro se motion in a Missouri circuit court under Missouri Rule 29.07, asserting his ineffective assistance claim.¹ The circuit court summarily denied his motion on November 8, 2013. More than a year later, on January 21, 2015, Franklin filed a pro se motion for late notice of appeal with the Missouri Court of Appeals. Although that court originally granted his motion, it then issued another order stating that the motion may have been improvidently granted and ordering Franklin to show cause why the appeal should not be dismissed. Franklin responded, but the court of appeals ultimately dismissed the appeal as untimely under Missouri Supreme Court Rule 30.03.² Shortly thereafter, Franklin filed a pro se application for transfer to the Missouri Supreme Court, which was denied. Satisfied that the above steps exhausted Franklin's state court remedies, the district court then resumed consideration of his habeas petition.

The district court first concluded that Franklin's claim is procedurally defaulted because the state appellate court dismissed the appeal of the circuit court's denial of the claim as untimely under a Missouri procedural rule. As a result, the district court found it could reach the claim on the merits only if Franklin showed both cause and prejudice or actual innocence. Proceeding under Martinez, the court noted that a prisoner may establish cause for default where the state court did not appoint counsel in an initial review collateral proceeding that was the prisoner's first opportunity to litigate the ineffective assistance claim.³ After finding that Missouri law does not allow ineffective assistance claims on direct appeal, the court ruled that Franklin showed cause for the procedural default because he was pro se during the state court Rule 29.07 proceedings.

The court next observed that the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), applied because Franklin's claim was denied on the merits by the state circuit court. See Harrington v. Richter, 562 U.S. 86, 99, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). Thus, to succeed on his ineffective assistance claim under AEDPA, Franklin needed to meet a "doubly" deferential standard: judicial review of counsel's performance is "highly deferential," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult," Richter, 562 U.S. at 105, 131 S.Ct. 770. Thus, the relevant question before the district court was "whether there is any reasonable argument that [his defense] counsel satisfied Strickland's deferential standard." Id.

The district court then focused its analysis on Roe v. Flores–Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), in which the Supreme Court stated "that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." In such a circumstance, prejudice may be proved by a showing that the attorney's error caused the petitioner to forego his right to an appeal. Id. at 484, 120 S.Ct. 1029. Given this Supreme Court precedent, the district court hypothesized that the only possible way the state circuit court's denial of Franklin's motion could conform with Flores–Ortega is if the state court concluded, as a factual matter, that Franklin did not actually instruct his attorneys to file an appeal of his conviction and sentence. The court concluded that Franklin showed the requisite level of prejudice because he supported his state court motion with evidence that he did, in fact, instruct his attorneys to appeal.

Accordingly, the district court conditionally granted Franklin's petition "for the limited purpose of allowing the circuit court to impose the same sentence Franklin received on June 29, 2010, so that he may file an appeal." The State of Missouri appeals.

II. Analysis

"On appeal from a district court's grant of a habeas petition, we review the district court's findings of fact for clear error, and its conclusions of law de novo." Escobedo v. Lund, 760 F.3d 863, 868 (8th Cir. 2014). Although the state raises a number of arguments on appeal, we focus only on one: whether Martinez applies to excuse Franklin's procedural default. We find that it does not, and therefore reverse.

A. Procedural Default

Under the doctrine of procedural default, "a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule." Martinez, 566 U.S. at 9, 132 S.Ct. 1309. A procedural default occurs when a prisoner violates a state procedural rule and this violation serves as an independent and adequate state-law basis to uphold the state courts' dismissal of a claim, thereby precluding consideration of federal claims on direct appeal. See Murphy v. King, 652 F.3d 845, 849 (8th Cir. 2011). "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law ...." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Initially, we agree with the district court's conclusion that Franklin's claim is procedurally defaulted. In his motion under Missouri Rule 29.07,⁴ which he filed with the state court on October 16, 2013, Franklin clearly stated that he sought relief for "[d]enial of effective assistance of counsel for [counsel's] failure to file a notice of direct appeal." Franklin then detailed the factual underpinnings of this allegation. The claim was therefore "fairly present[ed]" to the Missouri circuit court. See Murphy, 652 F.3d at 849 ("In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts." (internal quotation marks omitted)). Had Franklin timely appealed after the state circuit court denied his motion on November 8, 2013, procedural default likely would not be an impediment to Franklin seeking habeas relief on that claim.

Instead, Franklin waited to appeal this ruling until January 21, 2015, when he filed a motion for late notice of appeal with the Missouri Court of Appeals. On March 24, 2015, the state court of appeals denied his motion, citing a Missouri court rule that sets a twelve-month time limit from the date an appealable judgment becomes final for a party to seek to file a motion for late notice of appeal. See Mo. Sup. Ct. R. 30.03. Ultimately, the court of appeals noted that it had "no choice" but to deny the motion because "there is no provision in rule 30.03 that allows this Court to disregard the twelve-month limitation on granting a motion for late notice of appeal."...