Smith v. Allbaugh, 17-5095

• Decision Date: 29 April 2019
• Docket Number: No. 17-5095,17-5095
• Citation: 921 F.3d 1261
• Parties: Antonio Deandre SMITH, Petitioner - Appellant, v. Joe M. ALLBAUGH, Director, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

921 F.3d 1261

Antonio Deandre SMITH, Petitioner - Appellant,

v.Joe M. ALLBAUGH, Director, Respondent - Appellee.

No. 17-5095

United States Court of Appeals, Tenth Circuit.

FILED April 29, 2019

John T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.

Ashley L. Willis, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before McHUGH, MORITZ, and EID, Circuit Judges.

MORITZ, Circuit Judge.

Antonio Smith appeals the district court’s order denying his 28 U.S.C. § 2254 petition. For the reasons discussed below, we reverse the district court’s order and remand for further proceedings.

Background¹

Smith pleaded guilty in Oklahoma state court to drug trafficking, possessing a firearm as a felon, and a variety of related charges. Smith’s habeas claims center around a plea offer that one of Smith’s attorneys allegedly didn’t communicate to him. Essentially, Smith says that he rejected a plea offer from the state that his first attorney presented to him, under which Smith would serve 25 years in prison. Smith’s first attorney subsequently withdrew[,] and the sentencing court appointed a new attorney to represent him. Smith says that his second attorney told him shortly after she was appointed that the state had withdrawn an offer for a 20-year sentence. But Smith told his second attorney that his first attorney never communicated a 20-year offer to him.

On the day his case was set to go to trial, Smith pleaded guilty without the benefit of a plea agreement. During the plea hearing, the state told the court that Smith had rejected its offer for a 20-year sentence. When the sentencing court asked Smith’s second attorney if the state’s recollection of its prior offer coincided with her own, Smith’s second attorney responded, "Yes, it does." R. 20. But when the court more specifically asked Smith’s second attorney if she discussed the 20-year offer with Smith, she equivocated and responded, "We discussed recommendations; we discussed counter-offers; I conveyed counter-offers. Those were rejected." Id.

It’s not clear from this vague response whether Smith’s second attorney meant to convey to the court that Smith was presented with and rejected the 20-year offer. But it is clear that she didn’t tell the court about Smith’s assertion that his first attorney never communicated such an offer to him. Nor did she mention that she didn’t represent Smith when plea bargaining began, despite her representation to the court that she discussed prior offers with Smith. And adding to this confusion, Smith’s first attorney told the Oklahoma Bar Association that—contrary to what the state told the sentencing court—the lowest sentence the state ever offered Smith was 25 years. So it’s not clear from the record what offer the state actually made and what offer Smith actually rejected.

The sentencing court ultimately sentenced Smith to 30 years in prison. Smith neither sought to withdraw his plea nor appealed within the 10 days in which Oklahoma allowed him to do so. See Okla. R. Crim. App. 2.1(B), 4.2(A). But more than seven months later, Smith filed an application for post-conviction relief in state district court, requesting an appeal out of time.

In that application, Smith alleged that both his attorneys were constitutionally ineffective—his first attorney for failing to accurately communicate a favorable plea offer, and his second attorney for failing to alert the sentencing court to that issue. Smith further alleged that his second attorney never advised him that he had meritorious grounds to appeal his conviction. The state district court denied Smith’s motion because Smith didn’t take any steps in the 10 days following his plea to withdraw the plea or appeal. See Okla. R. Crim. App. 2.1(B), 4.2(A). It further found that Smith hadn’t shown he failed to appeal or to move to withdraw his plea through no fault of his own. See Okla. R. Crim. App. 2.1(E)(1) ("A petitioner’s right to appeal [out-of-time] is dependent upon the ability to prove he/she was denied an appeal through no fault of his/her own.").

Smith appealed to the Oklahoma Court of Criminal Appeals (OCCA), which likewise concluded that Smith hadn’t established that his failure to appeal was through no fault of his own. See id. Specifically, the OCCA explained that Smith "knew about the [20-year] plea offer, and heard his counsel state that it had been rejected, before he entered his plea of guilty" but nevertheless "voluntarily entered his plea of guilty, and did not elect to initiate appeal proceedings." R. 130. In other words, the OCCA apparently concluded that it was Smith’s fault he didn’t appeal because he knew the factual basis for his appeal during the 10 days following his sentence. It therefore denied his application for an appeal out-of-time. And without an appeal out-of-time, the OCCA couldn’t reach his claims that his attorneys were ineffective. See Logan v. State , 293 P.3d 969, 973 (Okla. Crim. App. 2013) (explaining that "issues that were not raised previously on direct appeal, but which could have been raised, are waived for [postconviction] review" (citing Okla. Stat. Ann. tit. 22, § 1086 )).

Smith then filed the instant petition in federal district court. Smith’s original petition only asserted two grounds for relief: ineffective assistance [of counsel (IAC) ] by his first attorney for failing to accurately communicate the state’s 20-year plea offer, and [IAC] by his second attorney for failing to alert the court to the first attorney’s error. More than 17 months later, Smith filed a motion to supplement his petition, alleging that his second attorney had also been constitutionally ineffective in failing to advise him to appeal and move to withdraw his plea.

The district court treated Smith’s motion [to supplement] as a motion to amend; determined that Smith’s new [IAC] claim didn’t relate back to the initial filing date; and concluded that the claim was therefore untimely under [§ 2244(d)(1) ]. See Fed. R. Civ. P. 15(c). It further ruled that Smith’s two timely [IAC] claims were procedurally defaulted because the OCCA denied them on independent and adequate state procedural grounds—i.e., that Smith neither (1) timely appealed or sought to withdraw his plea; nor (2) demonstrated that he failed to do so through no fault of his own. See Banks v. Workman , 692 F.3d 1133, 1144 (10th Cir. 2012) (explaining that constitutional claims rejected by state court on independent and adequate state procedural grounds are normally barred from habeas review in federal court). The district court also concluded that Smith hadn’t shown cause and prejudice to excuse this procedural default. See Magar v. Parker , 490 F.3d 816, 819 (10th Cir. 2007) (explaining that § 2254 petitioner can overcome procedural default by showing "cause for the default and actual prejudice" (quoting Bland v. Sirmons , 459 F.3d 999, 1012 (10th Cir. 2006) )). In doing so, the district court deferred to the OCCA’s factual conclusions that Smith knew about the 20-year plea deal during the time he had to appeal and move to withdraw his plea but nevertheless failed to do so. Thus, the district court denied Smith’s petition.

Order at 1-5, Smith , No. 17-5095.

After the district court denied Smith’s motion, we declined to grant Smith’s request for a COA to appeal the portion of the district court’s order treating as untimely the IAC claim he raised in his motion to supplement. See § 2253(c)(1)(A). But we did grant Smith a COA to appeal the portions of the district court’s order denying relief on his two timely IAC claims.

Analysis

Smith’s habeas petition advances three overlapping and layered IAC claims. For ease of reference, we refer to these claims numerically, in the order in which the actions giving rise to them allegedly occurred. Smith asserts that (1) his first attorney failed to communicate a favorable 20-year plea offer to him (the First IAC Claim); (2) his second attorney failed to alert the sentencing court to the first attorney’s failure to communicate the 20-year plea offer (the Second IAC Claim); and (3) his second attorney failed to advise him to pursue an appeal or to withdraw his plea based on the first attorney’s alleged ineffectiveness (the Third IAC Claim).

The district court ruled that the Third IAC Claim was untimely—a ruling that isn’t before us. But its rulings related to the First and Second IAC Claims are before us: the district court declined to reach the merits of these claims because it concluded that (1) the claims were procedurally defaulted and (2) Smith failed to show cause to excuse the default. We need not and do not address the first part of the district court’s ruling to resolve this appeal. Instead, we begin by assuming that the First and Second IAC Claims are procedurally defaulted and proceed to consider whether Smith has shown cause and prejudice sufficient to overcome that default.

In answering that question, we begin by detailing the cause-and-prejudice standard and applying it to this case, a process that includes addressing and incorporating substantive IAC principles. We ultimately conclude that because Smith demonstrates cause and prejudice to excuse any procedural default, the district court erred in failing to address the merits of the First and Second IAC Claims. But because we determine that a critical factual conflict prevents us from resolving the merits of these claims in the first instance, we remand to the district court for an evidentiary hearing.

I. Cause and Prejudice to Excuse Procedural Default

The procedural-default rule generally prevents a federal court from reviewing a habeas claim when the state court declined to consider the merits of that claim based "on independent and adequate state procedural grounds." Maples v. Thomas , 565 U.S. 266, 280, 132 S.Ct. 912, 181...