Thompson v. Champion
| Decision Date | 29 November 1993 |
| Citation | 41 F.3d 1516 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 TACHA, BRORBY, and EBEL, 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.
Appellant Bruce Donnell Thompson challenges the denial of his petition for a writ of habeas corpus made pursuant to 28 U.S.C. Sec. 2254. Appellant pleaded guilty in Oklahoma state court to numerous charges ranging from rape to unauthorized use of an automobile and was sentenced to consecutive sentences of 35 and 40 years imprisonment. He did not attempt to withdraw his guilty plea after sentencing, nor did he directly appeal his sentence.
Appellant subsequently applied to the Oklahoma Court of Criminal Appeals for post-conviction relief alleging ineffective assistance of counsel on several grounds. The court denied appellant's request, finding his claims procedurally barred under Oklahoma's rule that ineffective assistance claims must be brought on direct appeal.
Appellant next brought this petition for habeas corpus in federal district court. The district court denied the petition on the ground that appellant had procedurally defaulted on his claims in state court. On appeal, we reversed the district court and remanded the case, directing the court to make further findings. Thompson v. Champion, 996 F.2d 311 (10th Cir.1993) (unpublished disposition). Specifically, we ordered the court to determine whether the procedural bar cited by the court was an independent and adequate state ground and, if so, whether appellant had demonstrated cause for his default and resulting prejudice. Id.
On remand, the district court found that there was no adequate state ground for dismissal of appellant's ineffective assistance claim; as a result, it was not barred. The district court nevertheless rejected appellant's claims on the merits, and Mr. Thompson now appeals. We grant appellant leave to proceed in forma pauperis and a certificate of probable cause and consider his claims.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court stated:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner 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.
Id. at 750. Here, the state ground is clearly "independent"; whether appellant's petition is barred depends only on whether the state ground is also "adequate."
We agree with the district court's finding that the state procedural ground for dismissing appellant's claim is inadequate to bar review of his ineffectiveness claim. A state procedural rule is not entitled to respect as an adequate state ground unless it is "strictly or regularly followed." Hathorn v. Lovorn, 457 U.S. 255, 263 (1982); Barr v. City of Columbia, 378 U.S. 146, 149 (1964). And, as the magistrate judge explained, the Oklahoma Court of Criminal Appeals recently limited the requirement that an ineffective assistance claim be brought on direct appeal to cases in which the defendant had different counsel on direct appeal than at trial, Webb v. State, 835 P.2d 115, 117 (Okla.Crim.App.1992), demonstrating that the rule is still evolving. Under these circumstances, the rule at issue does not qualify as a "strictly or regularly followed" state practice. Appellant therefore is not procedurally barred from asserting his ineffectiveness claim in this federal habeas petition.
Upon reviewing the record, however, we conclude that appellant's ineffectiveness claim fails on the merits. For substantially the reasons stated by the magistrate judge in pages 5-12 of his "Supplemental Findings and Recommendation" (attached as an appendix to this opinion), we find that appellant's trial counsel was not constitutionally ineffective as measured by the standards announced in Strickland v. Washington, 466 U.S. 668 (1984). The district court's dismissal of appellant's petition for a writ of habeas corpus is therefore AFFIRMED. The mandate shall issue forthwith.
v.
Ron CHAMPION, Warden, et al., Respondents.
Aug. 12, 1993.
SUPPLEMENTAL FINDINGS AND RECOMMENDATION OF UNITED STATES
By mandate entered on May 19, 1993, the Tenth Circuit Court of Appeals reversed the judgment of United States District Judge Ralph G. Thompson entered herein on January 6, 1993, and remanded the instant petition for writ of habeas corpus to this court. The circuit court directed that further proceedings be conducted to determine "(1) whether Oklahoma's procedural rule requiring ineffective assistance of counsel claims to be brought on direct appeal is an adequate state ground; (2) whether Petitioner's third claim of ineffective assistance of counsel, regarding his counsel's failure to advise him about withdrawing his guilty plea or taking a direct appeal, constitutes cause for Petitioner's state procedural default, ... and, if it does, (3) whether Petitioner was thereby prejudiced." Thompson v. Champion, 1993 WL 170924 (10th Cir. May 19, 1993), slip op. at 6-7 (footnote omitted) (CCA No. 93-6035).
Following the remand, the case was resubmitted pursuant to 28 U.S.C. Sec. 636(b)(1)(B) for the submission of supplemental findings and recommendation for disposition. In compliance with the court's directive, the parties have filed briefs directed to the issues to be determined in this remand and Respondent has filed the affidavit of Petitioner's trial counsel, Mr. John Thomas Pugh.
The Oklahoma Court of Criminal Appeals relied on its procedural bar rule in refusing to review Petitioner's federal claim of ineffective assistance of trial counsel. This determination may bar federal habeas review of Petitioner's Sixth Amendment claim only if it constitutes an independent and adequate state ground for the decision. Coleman v. Thompson, 111 S.Ct. 2546, 2554, 2557 (1991). There is no issue regarding the independence of the Oklahoma Court of Criminal Appeals' decision. See Thompson v. Champion, supra, slip op. at 6. Respondent asserts that the state court's reliance on its procedural default rule is also an adequate state ground for the decision. Respondent contends the Oklahoma Court of Criminal Appeals has consistently applied the rule that the failure to raise grounds in a direct appeal bars a petitioner from raising the same grounds in a subsequent collateral attack. Respondent does not, however, address with particularity the issue whether the state procedural rule requiring ineffective assistance of counsel claims to be brought on direct appeal is an adequate state ground.
The Supreme Court has cautioned that a state procedural rule is not entitled to respect as an adequate and independent state ground unless the procedural rule is "strictly or regularly followed." Hathorn v. Lovorn, 457 U.S. 255, 262-263 (1982). Accord, Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (). A state procedural rule is consistently applied if it is invoked in a "vast majority" of the cases. Dugger v. Adams, 489 U.S. 401, 410-412, n. 6 (1989). In Ford v. Georgia, 498 U.S. 411 (1991), the Supreme Court reiterated that "only a 'firmly established and regularly followed state practice' may be interposed by a state to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423-424, quoting James v. Kentucky, 466 U.S. 341, 348-349 (1984).
In Cartwright v. State, 708 P.2d 592 (Okl.Cr.1985), cert. denied, 474 U.S. 1073 (1986), the Oklahoma Court of Criminal Appeals determined that post-conviction review of a claim of ineffective assistance of trial counsel was not available because the petitioner failed to state a sufficient reason for not raising the issue on direct appeal. Id. at 594-595. In Banks v. State, 810 P.2d 1286 (Okla.Cr.1991), cert. denied, 112 S.Ct. 883 (1992), the appellate court found that a claim of ineffective assistance of trial counsel could have been raised on direct appeal where the petitioner had different counsel on appeal and further found that absent a showing of ineffective assistance of appellate counsel, post-conviction review of the issue was barred by res judicata. Id. at 1289. This same rule was applied in Nguyen v. State, 844 P.2d 176, 179-180 (Okl.Cr.1992), cert. denied, 113 S.Ct. 3006 (1993).
In Webb v. State, 835 P.2d 115 (Okl.Cr.1992), the appellate court clarified its procedural bar rule for ineffective assistance of trial counsel claims. The court first stated its general procedural bar rule, declaring that "[w]hen the issue of ineffectiveness of counsel could have been raised in a prior proceeding, this court will rely on res judicata and decline to address the claim on its merits." Id. at 117. The court then limited the rule to the...
To continue reading
Request your trial