Sack v. Champion
| Decision Date | 29 November 1993 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Petitioner appeals the district court's decision dismissing his habeas claims as procedurally barred. Petitioner pleaded guilty to second degree murder, see Okla. Stat. Ann. tit. 21, § 701.8, and possession of a fictitious driver's license, see id. tit. 47, § 6-301(2)(c), both after two or more former felony convictions. He did not file a motion to withdraw his guilty plea nor did he pursue a direct appeal. He did file a petition for state post-conviction relief, which the state court denied, after ruling that petitioner was procedurally barred from seeking post-conviction relief because he had failed to take a direct appeal.
Petitioner then filed a federal habeas petition, see 28 U.S.C. § 2254, asserting numerous grounds for relief. The district court dismissed these claims as procedurally barred, based upon petitioner's failure to take a direct appeal. This court vacated that decision and remanded the case for the district court to address petitioner's ineffective assistance of counsel claims. See Sack v. Champion, No. 94-7018 (10th Cir.Oct.19, 1994). On remand, the district court again dismissed petitioner's ineffective assistance claims as procedurally barred. We reverse that dismissal in part and remand for the district court to consider the merits of petitioner's claims.
In order to preclude federal habeas review, a state procedural bar must be both adequate and independent of federal law considerations. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). While there is no question that the Oklahoma procedural bar at issue here is independent of federal law concerns, see Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir.1994), it is not adequate to bar federal habeas review of petitioner's claims.
An adequate state law ground is one that state courts have applied strictly, regularly and consistently. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Such a rule must be firmly established and regularly followed, and must be applied to all similar claims in an evenhanded manner in the majority of cases. See Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir.1996). Further, a state law ground will be inadequate if it deprives a criminal defendant of any meaningful review of his claims. See Brecheen, 41 F.3d at 1364. The question of when and how a state procedural default precludes federal habeas relief is a matter of federal law. See Johnson, 486 U.S. at 587.
On appeal, petitioner asserts four categories of claims. First, he argues that the trial court lacked subject matter jurisdiction over his prosecution, both because the trial court's docket sheet did not indicate that he had been arraigned and because the criminal informations charging his former felony convictions, both in this case and in his prior cases, were not verified as required by Oklahoma law. See generally Buis v. State, 792 P.2d 427, 428-31 (Okla.Crim.App.1990) (). Oklahoma courts have consistently held that issues of subject matter jurisdiction are not waived by failing to raise them on direct appeal. See, e.g., Wallace v. State, 935 P.2d 366, 372 (Okla.Crim.App.), cert. denied, 117 S.Ct. 2489 (1997); Buis, 792 P.2d at 428. Thus, a state post-conviction determination that petitioner defaulted his jurisdictional claims by not raising them on direct appeal would not represent an adequate state procedural bar and, therefore, would not preclude federal habeas review. See Johnson, 486 U.S. at 587, 589 ().
In this case, however, although petitioner characterizes these claims as jurisdictional, they do not, as a matter of law, implicate the trial court's subject matter jurisdiction. See, e.g., Lynch v. State, 909 P.2d 800, 804 (Okla.Crim.App.1995) (); Henderson v. State, 743 P.2d 1092, 1095 (Okla.Crim.App.1987) (). Because Oklahoma courts consistently bar nonjurisdictional post-conviction claims that could have been, but were not, raised on direct appeal, see, e.g., Revilla v. State, 946 P.2d 262, 264 (Okla.Crim.App.1997) (applying Oklahoma Uniform Post-Conviction Procedure Act, see Okla. Stat. Ann. tit. 22, §§ 1080-89), and cases cited therein, the district court did not err in concluding that these claims are procedurally barred, based upon an adequate state law ground.
Further, because these claims are legally meritless, petitioner is unable to establish the prejudice necessary to enable the district court to address these defaulted claims. See Duvall v. Reynolds, No. 96-6329, 1997 WL 758810, at * 26 (10th Cir. Dec. 10, 1997). Nor has he made the colorable showing of his factual innocence required to meet the fundamental miscarriage of justice exception to defaulted claims. See Demarest v. Price, No. 95-1535, 1997 WL 746288, at * 20 (10th Cir. Dec. 3, 1997). The district court's denial of habeas relief on these claims is, therefore, affirmed.
In his second category of claims, petitioner asserts that he was incompetent at the time he entered his guilty plea. A state court determination that petitioner defaulted this claim by failing to raise it on direct appeal would not preclude federal habeas review. See Nguyen v. Reynolds, No. 96-5254, 1997 WL 693685, at * 4 (10th Cir. Nov. 7, 1997); see also Sena v. New Mexico State Prison, 109 F.3d 652, 654 (10th Cir.1997) (). On remand, the district court should address the merits of this issue.
Third, petitioner argues that his failure to file a motion to withdraw his guilty plea and to perfect a direct appeal was due to his attorney's ineffective representation. See generally Randall v. State, 861 P.2d 314, 315-16 (Okla.Crim.App.1993) (). The state post-conviction court determined, nonetheless, that petitioner was barred from asserting these ineffective assistance claims because he had failed to take a direct appeal. This circular reasoning denied petitioner any meaningful opportunity for review of his claims that his attorney's ineffectiveness caused him to lose his direct appeal and, therefore, is inadequate to preclude federal habeas review. See Brecheen, 41 F.3d at 1364; see also Hannon v. Maschner, 981 F.2d 1142, 1145 (10th Cir.1992); cf. Parkhurst v. Shillinger, 128 F.3d 1366, 1370-71 (10th Cir.1997) (...
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