Manning v. Foster

• Decision Date: 08 March 2000
• Docket Number: No. 97-35664,97-35664
• Citation: 224 F.3d 1129
• Parties: (9th Cir. 2000) STEVEN EDWARD MANNING, Petitioner-Appellant, v. PHIL FOSTER, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1129

224 F.3d 1129 (9th Cir. 2000)

STEVEN EDWARD MANNING, Petitioner-Appellant, v. PHIL FOSTER, Respondent-Appellee.

No. 97-35664

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 8, 2000--Seattle, Washington

Filed August 22, 2000

[Copyrighted Material Omitted] COUNSEL: Teresa Hampton, Hampton & Elliott, Boise, Idaho, for the appellant.

T. Paul Kruegger II, Deputy Attorney General, Boise, Idaho, for the appellee.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, Chief District Judge, Presiding D.C. No. CV-96-00118-EJL

Before: James R. Browning, Betty B. Fletcher and Ronald M. Gould, Circuit Judges.

B. Fletcher, Circuit Judge:

Steven Edward Manning filed this habeas petition alleging ineffective assistance of counsel because his defense attorney failed to file an appeal from the conviction even after Manning specifically requested him to appeal. The district court dismissed the petition on procedural grounds and also on the merits. We reverse and remand.

I

Manning was convicted of lewd conduct with and sexual abuse of a child under the age of 16 years pursuant to Idaho Code SS 18-1508 and 1506, and of felony failure to appear pursuant to Idaho Code S 18-7401. Judgment was entered September 23, 1994. Manning was entitled to file a direct appeal within 42 days of the judgment.

In an October 19, 1994 telephone conversation, Manning informed his attorney, Joel Ryan, that he would like to appeal the conviction. Ryan apparently told Manning that Manning should put this request in writing. On October 24, 1994, Manning sent a letter to Ryan confirming his desire to appeal. However, Ryan wrote back to tell Manning that a clerical error in the public defender's office prevented him from seeing the letter until November 6 -days after the deadline for filing an appeal.

In Ryan's letter, he told Manning that he could not appeal the conviction. He stated that Manning's remaining option was to file a motion to reconsider the sentence. "However, Judge Judd does not have to grant you a hearing on the motion and my experience has been he rarely grants them at all." Ryan went on to state that he would assist in an appeal from the judge's denial of the motion to reconsider the sentence, but that "I don't expect positive results from the appellate court." The motion to reconsider was filed and, as expected, rejected by the trial court, and no appeal was taken.

Under Idaho Code S 19-4902, Manning was entitled to file an ineffective assistance of counsel claim in state court within one year of his conviction. However, he did not file any action in state court. On March 21, 1996, Manning filed this habeas petition in federal court, asserting that he was denied effective assistance of counsel when Ryan failed to file a direct appeal from his conviction.

Manning claims that he did not file for state post conviction relief because of Ryan's active interference. He asserts that Ryan's representation that a motion to reconsider the sentence was the only legal option left led him to believe that no other post-conviction relief was available. According to Manning, Ryan misled him in such a way as to prevent him from claiming that Ryan's assistance had been ineffective, and the ineffective assistance claim was almost certain to succeed.

II

The district court had jurisdiction over Manning's habeas petition pursuant to 28 U.S.C. S 2254. On March 12, 1997, the district court dismissed the petition because it found that Manning procedurally defaulted by failing to exhaust state court remedies, and also because it found that he failed to state a claim for ineffective assistance of counsel. Manning filed a timely notice of appeal on March 24, 1997. The district court found that the appeal could not proceed unless it issued a certificate of probable cause ("CPC"), and, finding that "reasonably debatable issues are presented by this appeal of the Petitioner's claim of ineffective assistance of counsel," granted the CPC. Subsequently, in Slack v. McDaniel, 120 S.Ct. 1595, 1602-03 (2000), the Supreme Court held that a petitioner filing a habeas appeal after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") is required to obtain a certificate of appealability ("COA"), not a CPC. Since AEDPA's effective date is April 24, 1996, and Manning initiated this appeal on March 24, 1997, this requirement applies to him.

Under the former provisions governing CPCs, a petitioner was required to make "a substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893 (1983). To obtain a COA, a petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. S 2253(c)(2). In Slack, the Court noted that [e]xcept for substituting the word "constitutional" for the word "federal," S 2253 is a codification of the CPC standard announced in Barefoot v. Estelle , 463 U.S. at 894. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in S 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word "constitutional."

120 S.Ct. at 1603. Because we hold that Manning demonstrated that he was denied his constitutional rights with respect to the ineffective assistance of counsel claim and that the district court was incorrect in its procedural ruling, we conclude that he has made the requisite "substantial showing of the denial of a constitutional right." 28 U.S.C. S 2253(c)(2). We therefore grant the COA as to both issues and exercise jurisdiction over these issues on appeal pursuant to Section 2253.

We review the district court's decision to dismiss the habeas petition for procedural default de novo . See Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997). We also review de novo the district court's decision to deny the habeas petition on the merits. See McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999).

III

We first examine whether the district court erred in holding that Manning's habeas petition is barred by a procedural default. As a general rule, habeas petitioners must exhaust state court remedies before filing for a writ of habeas corpus under 28 U.S.C. S 2254. See, e.g. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). However, a procedural default arising from the failure to exhaust may be excused if the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. A fundamental miscarriage of justice occurs where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). Since Manning does not claim innocence, we examine whether he has asserted "cause" and "prejudice" to excuse his procedural default.

A. Cause

To allege cause for a procedural default, a petitioner must assert that the procedural default is due to an "objective factor" that is "external" to the petitioner and that "cannot fairly be attributed to him." Coleman, 501 U.S. at 753.

The courts have recognized several general categories of claims that constitute cause for a procedural default. In Murray, the Supreme Court gave as one example of cause "some interference by officials [that] made compliance [with procedural rules] impracticable." 477 U.S. at 488 (citation omitted). In Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1989), we held that prison officials' interference with a petitioner's access to administrative remedies can be cause for a procedural default.

Constitutionally ineffective assistance of counsel has also been considered cause for a procedural default. See Murray, 477 U.S. at 488. However, there is no constitutional right to an attorney in state post-conviction proceedings. See Coleman, 501 U.S. at 752. Therefore, any ineffectiveness of Manning's attorney in the post-conviction process is not considered cause for the purposes of excusing the procedural default at that stage. See id; see also Ortiz v. Stewart, 149 F.3d 923, 933 (9th Cir. 1998) (ineffective representation in post-conviction proceeding does not constitute cause for procedural default).

The Eighth Circuit has recognized another form of cause for a procedural default -where a petitioner is represented by an attorney who has an actual conflict of interest. See Jamison v. Lockhart, 975 F.2d 1377, 1379 (8th Cir. 1992) (where petitioner relied on counsel "whose loyalty was tainted by conflict of interest," petitioner asserted cause for a procedural default). In the Eighth Circuit, an attorney's conflict of interest may be cause for a procedural default regardless of whether the petitioner has a valid claim of ineffective assistance of counsel. See Joubert v. Hopkins, 75 F.3d 1232, 1243 (8th Cir. 1996) ("Interference by the state, ineffective assistance of counsel, and conflicts of interest are examples of factors external to the defense which prevent a petitioner from developing the factual basis of his claim.") (emphasis added).

We have addressed whether conflict of interest is a cause for a procedural default, but only in the context of whether counsel was ineffective. In Nevius v. Sumner, 105 F.3d 453, 459 (9th Cir. 1996), the petitioner argued that his counsel "were incapable of acting as his agents by reason of the conflict that precluded them from asserting their own ineffectiveness at trial and on appeal" and therefore "were without authority to default any of his substantive claims. " We rejected the petitioner's contention, stating that this argument fails because the petitioner had no right to counsel in habeas proceedings, and asserting that the argument was foreclosed by our decision in Bonin v. Calderon, 77 F.3d 1155 (9th Cir. 1996) (Bonin III) (holding that...