Green v. Reynolds, 94-6294

• Citation: 57 F.3d 956
• Decision Date: 13 June 1995
• Docket Number: No. 94-6294,94-6294
• Parties: Rickke L. GREEN, Petitioner-Appellant, v. Dan REYNOLDS; Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 956

57 F.3d 956

Rickke L. GREEN, Petitioner-Appellant, v. Dan REYNOLDS; Attorney General of the State of Oklahoma,

Respondents-Appellees.

No. 94-6294.

United States Court of Appeals, Tenth Circuit.

June 13, 1995.

Ronald G. Ray, Sr., Fort Washington, MD, for petitioner-appellant.

W.A. Drew Edmondson, Atty. Gen., Robert L. Whittaker, Asst. Atty. Gen., Criminal Div., Oklahoma City, OK, for respondents-appellees.

Before EBEL and BARRETT, Circuit Judges, and KANE, ^* District Judge.

EBEL, Circuit Judge.

Petitioner appeals from a district court order dismissing his 28 U.S.C. Sec. 2254 petition as an abuse of the writ under Rule 9(b) of the Rules Governing Sec. 2254 Cases. ¹ We review the district court's factual findings for clear error and its legal conclusions de novo. See Thomas v. Kerby, 44 F.3d 884, 886 (10th Cir.1995). For the reasons explained below, we affirm the district court's disposition with respect to the first six of seven grounds for relief asserted in the petition, but reverse as to the last, and remand for appropriate relief. ²

I

In 1971, petitioner, then sixteen years old, was prosecuted in Oklahoma as an adult, convicted, and ultimately sentenced to over fifty-five years' incarceration for grand larceny, possession of a firearm after former conviction of a felony (AFCF), concealment of stolen property AFCF, and robbery with a firearm AFCF. He filed his first federal habeas petition challenging one of these convictions in October 1977. That petition, which was denied on the merits, did not include any of the grounds asserted herein. Two more Sec. 2254 petitions followed, though these were disposed of on procedural grounds prior to any consideration of the merits.

In the meantime, petitioner pursued a state post-conviction claim that his adult prosecution without a prior certification hearing authorizing such a procedure--contrary to how female juveniles were treated--violated the equal protection principles enunciated in Lamb v. Brown, 456 F.2d 18 (10th Cir.1972), and retroactively applied in Radcliff v. Anderson, 509 F.2d 1093 (10th Cir.1974), cert. denied, 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975). Given the undeniable constitutional violation asserted, the state granted petitioner a retroactive adult certification hearing (RAC hearing) to determine whether he would have been certified for prosecution as an adult had proper procedures been followed back in 1971, which is the remedy recognized for Lamb violations by this court in Bromley v. Crisp, 561 F.2d 1351 (10th Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978), and thereafter elaborated upon by the Oklahoma Court of Criminal Appeals in Edwards v. State, 591 P.2d 313 (Okla.Crim.App.1979).

Four months prior to his RAC hearing, petitioner requested the assistance of appointed counsel. That request was not ruled on until the day of the hearing, when it was denied "because post-conviction proceedings are in the nature of civil relief and Petitioner, therefore, is not entitled, by right, to appointment of counsel." App. X-18, at 1. See generally Edwards, 591 P.2d at 321-23 & n. 22 (indicating RAC hearing to be held "in accordance with 22 O.S.1971 Sec. 1084," which pertains to state post-conviction proceedings in which appointment of counsel is matter of judicial judgment under Okla.Stat. tit. 22, Sec. 1082). Petitioner then refused to participate in the hearing, complaining that he had not been given sufficient preparation time to defend his interests. The court proceeded to hear the state's evidence, though it granted petitioner the opportunity to expand the record post-hearing, which he did not do. Ultimately, the court concluded petitioner would have been certified as an adult had a proper hearing been held prior to his prosecution in 1971.

That brings us to the present habeas petition, which lists seven grounds for relief, all relating to petitioner's 1971 convictions. These include: three claims of ineffective assistance of appellate counsel, two claims that the Oklahoma Court of Criminal Appeals acted to deprive petitioner of the effective assistance of appellate counsel, one claim that the Oklahoma Court of Criminal Appeals subjected petitioner to unconstitutional appellate delay by never explicitly addressing arguments he made in a pro se appellate brief, and, finally, the claim that petitioner's convictions are unconstitutional under Lamb (and that he was not accorded due process in connection with the RAC hearing held to remedy this violation). On the magistrate judge's recommendation, the district court concluded these matters could have been, or were, raised in an earlier petition, and dismissed all claims under Rule 9(b).

II

We concur in the district court's disposition of petitioner's first six grounds for relief, all of which were available yet omitted from petitioner's first habeas petition in 1977. See McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991) (Rule 9(b) prohibition applies to new claims raised in later habeas petitions if "petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege [such] claim[s] in the first petition"). Petitioner attempts to establish the cause and prejudice necessary to excuse this default, see id. at 493-97, 111 S.Ct. at 1469-72, by insisting that prison officials have impeded his access to the courts. However, his general allegations in this regard do not even focus on the pertinent (1977-78) period, let alone show any particularized prejudicial impact on his ability to prepare and pursue his first petition at that time.

The situation is quite different, and more complicated, with respect to petitioner's claim regarding the constitutional inadequacy of his 1982 RAC hearing. Obviously, such a claim was not available for inclusion in the first petition. ³ Consequently, Rule 9(b) as traditionally articulated would not bar present consideration of that claim. See McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472; see, e.g., Worthen v. Kaiser, 952 F.2d 1266, 1268 (10th Cir.1992) (Rule 9(b) prohibition may be avoided by petitioner's "demonstration of the unavailability of a factual or legal basis" for claim at time of earlier petition). Indeed, a number of decisions have stated specifically that when a constitutional claim arises out of state proceedings held after the disposition of a federal habeas petition, a subsequent petition may raise the claim without running afoul of Rule 9(b). See Otey v. Hopkins, 972 F.2d 210, 212 (8th Cir.1992); Byrd v. Martin, 754 F.2d 963, 965 (11th Cir.1985); see also Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985).

That said, we recognize that this case presents a unique factual/procedural twist which the traditional case-law formulation of the Rule 9(b) bar simply does not contemplate. Although the constitutional sufficiency of petitioner's 1982 RAC hearing obviously was not an issue available in 1977, the RAC hearing was itself the remedy for a constitutional claim that, in light of our earlier decisions in Lamb and Radcliff, could have been pursued at that time. Because petitioner omitted this claim from his first habeas petition, any attempt thereafter to challenge his improper transfer from Juvenile Court--and his resultant adult convictions--by way of habeas would implicate the Rule 9(b) bar. It may seem somewhat incongruous, then, to hold that petitioner can now challenge the constitutional sufficiency of the RAC hearing he had lost the right to demand (at least in the federal courts) in the first place.

What underlies this misgiving is the tacit assumption of a kind of fruit-of-the-abandoned-tree principle, i.e., the idea that the omission of an available constitutional claim from a habeas petition should bar later consideration not only of that claim but of any subsequent constitutional violation that would not have arisen but for the state's attempt to remedy the initial, federally-waived claim. This principle has undeniable facial appeal. Nevertheless, it is ultimately unacceptable for several interrelated reasons.

First, as already noted, the conventional case-law formulation of the Rule 9(b) prohibition specifically applies only to claims that were available when an earlier petition was pursued. Thus, application of Rule 9(b) to the kind of consequential-deprivation claim outlined here would necessarily require an extension of the rule's traditional scope. Second, the parties have not cited, nor have we found, any cases adopting or even considering such an extension of the rule. While precedent necessarily cannot be a prerequisite for the adoption of a new approach, the absence of extant authoritative support should nevertheless place more of a burden on the approach to justify itself through other means. This prompts our third and decisive point, which involves an assessment of the logical consequences of extending Rule 9(b) with the suggested principle. These consequences are clearly untenable.

For example, with respect to the present case, because of petitioner's resort to state court to obtain his constitutionally mandated RAC hearing, petitioner effectively would have no federally enforceable constitutional rights in that hearing. As alleged here, the state could deny him adequate notice, counsel, and a meaningful opportunity to prepare and defend his interests, and Rule 9(b) would preclude him from challenging the result in federal court. This is quite different from merely holding that someone has waived federal relief as to past wrongs that, for whatever reasons, he initially chose not to challenge; petitioner would have the unprecedented status of a constitutional orphan, denied protection against yet unknown and unincurred deprivations.

Indeed, suppose a state defendant similarly omitted, without excuse, an available claim of constitutional error from an unsuccessful habeas petition and thereafter obtained a reversal...