Holcomb v. Murphy, 82-1549

• Decision Date: 09 March 1983
• Docket Number: No. 82-1549,82-1549
• Citation: 701 F.2d 1307
• Parties: Thomas Leslie HOLCOMB, Petitioner-Appellant, v. A.I. MURPHY, Warden, and Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1307

701 F.2d 1307

Thomas Leslie HOLCOMB, Petitioner-Appellant, v. A.I. MURPHY, Warden, and Attorney General of the State of

Oklahoma, Respondents-Appellees.

No. 82-1549.

United States Court of Appeals, Tenth Circuit.

March 9, 1983.

Thomas Leslie Holcomb, pro se.

Jan Eric Cartwright, Atty. Gen., and Patricia M. Gerrity, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, Okl., for respondents-appellees.

Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Petitioner Thomas L. Holcomb, a state prisoner, appeals the judgment of the United States District Court for the Western District of Oklahoma dismissing his petition for a writ of habeas corpus. Petitioner raised eight grounds in his petition. He contended that: (1) the trial court erred in allowing FBI Agent Thomas Zapata to relate hearsay observations concerning the FBI investigation of petitioner's case; (2) the trial court erred in failing to suppress evidence obtained pursuant to an allegedly unlawful identification procedure; (3) the conviction was obtained by the knowing use of perjured testimony; (4) the prosecution suppressed evidence that was favorable to petitioner; (5) the trial court erred in denying a discovery motion; (6) petitioner was denied his right to counsel during the identification procedure; (7) petitioner was denied effective assistance of counsel during trial and on appeal; and (8) petitioner was denied the rights of appeal and of postconviction relief by the public defender's office. The district court concluded that the assignments of error were without merit and dismissed the petition.

A brief procedural history is in order. Following his conviction in state court, petitioner appealed to the Oklahoma Court of Criminal Appeals, raising four issues. He argued that: (1) the trial court erred in overruling his motion to suppress the in-court identification; (2) the evidence was insufficient to sustain the verdict (because of the alleged improprieties in the pretrial identification process); (3) hearsay testimony by Agent Zapata was improperly admitted; and (4) the punishment was excessive. The appellate court held that the motion to suppress was properly denied because the witnesses testified that their identifications were based on their recollection of the defendant's appearance at the time of the robbery, not on the photos shown them prior to trial. The court concluded that each witness was capable of making, and did make, an independently reliable identification. The court also held that the verdict was supported by sufficient competent evidence, that the trial court properly admitted the hearsay testimony for a limited purpose and with appropriate admonitions to the jury, and that the punishment was not excessive.

Petitioner subsequently filed a motion for postconviction relief. In addition to the issues presented in his direct appeal, he alleged knowing use of perjured testimony, unlawful suppression of evidence, erroneous denial of a discovery motion, denial of right to counsel because of the absence of counsel during a photographic lineup, ineffective assistance of counsel, and denial of the right to appeal. Postconviction relief was denied. With respect to the issues not raised in the direct appeal the court of criminal appeals stated, "The appellant gives no reason why he could not have asserted these issues in his direct appeal, and in accordance with [Okla.Stat. tit. 22] Sec. 1086, supra, they must be considered waived." Thereafter petitioner filed the federal habeas corpus petition that is the subject of this appeal. Petitioner raised all of the claims he asserts here in his postconviction proceedings in state court. Thus he has exhausted state remedies. See Engle v. Isaac, 456 U.S. 107, n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Of the eight issues raised in federal court two were asserted in petitioner's direct appeal: the improper admission of hearsay testimony and the denial of the motion to suppress. Petitioner's contention that the trial court improperly admitted hearsay testimony alleges a trial error that may be questioned in a federal habeas corpus proceeding only if the error renders the trial so fundamentally unfair as to deprive the petitioner of federal constitutional rights. See Gillihan v. Rodriguez, 551 F.2d 1182, 1192-93 (10th Cir.), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977). The district court properly concluded that the record does not disclose circumstances giving rise to a denial of fundamental fairness. In this case the state court's denial of petitioner's motion to suppress his in-court identification raises only an issue of trial error not cognizable in federal habeas corpus proceedings. See Bond v. Oklahoma, 546 F.2d 1369, 1377 (10th Cir.1976).

Two more of petitioner's claims relate to the appeal rather than the trial and thus could not have been properly raised until after the direct appeal. These are the denial of effective assistance of counsel at the appellate level and the denial of the rights to appeal and to postconviction relief. Since those claims were raised in petitioner's initial application for postconviction relief, their merits are properly before us.

After reviewing the appellate record and briefs, we agree with the district court that petitioner's claim of ineffective assistance of counsel is not supported. We also reject petitioner's contention that the failure of his appellate counsel to raise some issues petitioner wanted him to assert or failure of the court to appoint counsel to assist petitioner in postconviction relief proceedings constituted denial of petitioner's rights. Petitioner was adequately represented by counsel on direct appeal, and the failure of the court to appoint counsel for the postconviction application is not a constitutional violation. See Gallegos v. Turner, 386 F.2d 440, 441 (10th Cir.1967), cert. denied, 390 U.S. 1045, 88 S.Ct. 1647, 20 L.Ed.2d 307 (1968).

Petitioner's remaining claims could have been, but were not, raised in his direct appeal. The threshold question we must decide is whether, despite the petitioner's failure to present these issues on direct appeal, the merits of the claims may properly be reached. The Supreme Court has decided several cases that bear upon this question. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), a state prisoner who had never appealed his conviction for murder sought review of his conviction by habeas corpus petition in federal court. The Court held that a criminal defendant's failure to appeal his state court conviction does not preclude the examination of constitutional claims in a federal habeas corpus proceeding, but that "the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id. at 438, 83 S.Ct. at 848.

However, in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a federal court may not consider on habeas a claim not asserted at trial in compliance with a state contemporaneous objection rule unless the petitioner shows cause for the noncompliance and actual prejudice from the alleged constitutional violation. Id. at 87, 97 S.Ct. at 2506. While disapproving some of the sweeping language in Fay, the Court specifically left open the question whether the cause and prejudice test applies to a failure to take an appeal and, we believe, a failure to raise a constitutional issue on appeal. The Court said:

"We have no occasion today to consider the Fay rule as applied to the facts there confronting the Court. Whether the Francis [v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 147 (1976) ] rule should preclude federal habeas corpus review of claims not made in accordance with state procedure where the criminal defendant has surrendered, other than for reasons of tactical advantage, the right to have all of his claims of trial error considered by a state appellate court, we leave for another day."

Id. at 88 n. 12, 97 S.Ct. at 2507 n. 12.

Wainwright was reaffirmed in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Although Engle concerned a petitioner who had failed to assert a claim at trial as required by a state contemporaneous objection rule and the Court generally confined its discussion to that precise default, in one place, after referring to the Wainwright decision, the Court stated broadly, "We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and prejudice before obtaining relief." 456 U.S. at 729, 102 S.Ct. at 1572 (emphasis added).

Since Wainwright, all of the circuits that have considered whether the rule in Wainwright or the rule in Fay controls when a state prisoner fails to take a direct appeal from his conviction have held that Fay applies. See Boyer v. Patton, 579 F.2d 284, 286 (3d Cir.1978); Ferguson v. Boyd, 566 F.2d 873, 879 (4th Cir.1977); Crick v. Smith, 650 F.2d 860, 867-68 (6th Cir.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982). Most of the circuits that have considered situations in which a habeas petitioner took a direct appeal but failed to raise an issue have held that Wainwright's cause and prejudice standard applies to an issue not raised in the direct appeal. See Forman v. Smith, 633 F.2d 634, 636-40 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Hubbard v. Jeffes, 653...