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    The United States Court of Appeals for the Tenth Circuit is reviewing the dismissal of Craig Thomas Rodgers' habeas corpus petition claiming ineffective assistance of counsel. The district court had dismissed the petition as procedurally barred because Rodgers did not raise the ineffective assistance claim on direct appeal and did not sufficiently describe the contents of an allegedly exculpatory investigative report. The Court of Appeals finds that failure to raise the claim on direct appeal does not preclude habeas review. It also finds that without access to the state court record, it cannot be determined if the failure to describe the report was a procedural default and, if so, whether it was an independent ground for dismissal. The Court remands the case for further proceedings, including requiring trial counsel

    Original Description:

    Filed: 1997-10-14 Precedential Status: Non-Precedential Docket: 96-8064

    Original Title

    Rodgers v. Ferguson, 10th Cir. (1997)

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    The United States Court of Appeals for the Tenth Circuit is reviewing the dismissal of Craig Thomas Rodgers' habeas corpus petition claiming ineffective assistance of counsel. The district court had dismissed the petition as procedurally barred because Rodgers did not raise the ineffective assistance claim on direct appeal and did not sufficiently describe the contents of an allegedly exculpatory investigative report. The Court of Appeals finds that failure to raise the claim on direct appeal does not preclude habeas review. It also finds that without access to the state court record, it cannot be determined if the failure to describe the report was a procedural default and, if so, whether it was an independent ground for dismissal. The Court remands the case for further proceedings, including requiring trial counsel

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    Public Domain
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    20 views5 pages

    Filed: Patrick Fisher

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    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit is reviewing the dismissal of Craig Thomas Rodgers' habeas corpus petition claiming ineffective assistance of counsel. The district court had dismissed the petition as procedurally barred because Rodgers did not raise the ineffective assistance claim on direct appeal and did not sufficiently describe the contents of an allegedly exculpatory investigative report. The Court of Appeals finds that failure to raise the claim on direct appeal does not preclude habeas review. It also finds that without access to the state court record, it cannot be determined if the failure to describe the report was a procedural default and, if so, whether it was an independent ground for dismissal. The Court remands the case for further proceedings, including requiring trial counsel

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    OCT 14 1997

    PATRICK FISHER
    Clerk

    CRAIG THOMAS RODGERS,


    Petitioner-Appellant,
    v.
    JAMES FERGUSON, Warden of the
    Wyoming State Penitentiary, and the
    ATTORNEY GENERAL of the State
    of Wyoming,

    No. 96-8064
    (D.C. No. 95-CV-206-J)
    (D. Wyo.)

    Respondents-Appellees.

    ORDER AND JUDGMENT *

    Before BRORBY, LOGAN, and HENRY, 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.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    Petitioner Craig Thomas Rodgers appeals the district courts dismissal of


    his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. 2254, on
    the ground that his ineffective assistance of counsel claim was procedurally
    barred. Because petitioners claim is not procedurally barred, we grant a certificate of probable cause 1 and reverse and remand the case for further proceedings.
    In February 1994, petitioner pleaded guilty to first degree sexual assault
    and received a sentence of ten to fourteen years in the Wyoming State Penitentiary. He did not appeal his conviction or sentence. In March 1995, he filed a
    petition for post-conviction relief in state district court, alleging that his second
    trial attorney was ineffective in failing to reveal certain exculpatory evidence
    contained in an investigative report commissioned by his first trial attorney. He
    asserted he would not have pleaded guilty had he known of the exculpatory
    evidence. In response to the governments claim that the ineffective assistance of
    counsel claim was procedurally barred, petitioner attempted to show that he did
    not discover the existence of the exculpatory report until after his appeal time
    lapsed; he apparently attached his own affidavit and an affidavit by the investiga-

    Because this petition was filed before April 24, 1996, the effective date of
    the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
    104-132, 110 Stat. 1214, we apply the prior law to grant petitioner a certificate of
    probable cause so that he may bring this appeal. See United States v. Kunzman,
    No. 96-1310 at n.2, 1997 WL 602507, at *1(10th Cir. Oct. 1, 1997).
    1

    -2-

    tor who issued the report. The district court denied the petition as procedurally
    barred, and the Wyoming Supreme Court denied review on the same ground.
    Petitioner then filed this petition for a writ of habeas corpus, raising the
    same ineffective assistance of counsel claim. Although the Wyoming state
    district courts decision was not in the record, the federal district court attempted
    to reconstruct its holding by reviewing petitioners pleadings in the Wyoming
    Supreme Court. The federal court concluded that the state courts procedural bar
    rested on two grounds: petitioners failure to raise his ineffective assistance of
    counsel claim on direct appeal, and petitioners failure to plead and support his
    claim with the requisite specificity by detailing the contents of the investigative
    report. The district court then denied the petition on the ground that it was
    procedurally barred, and petitioner appealed.
    We review the district courts legal conclusions regarding procedural
    default de novo, affording a presumption of correctness to the state courts
    findings of fact unless not fairly supported by the record. See Sena v. New
    Mexico State Prison, 109 F.3d 652, 653 (10th Cir. 1997).
    In Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994), we held
    the failure to raise an ineffective assistance of counsel claim in a direct state court
    appeal will not preclude federal habeas corpus review of the claim despite state
    law characterizing such a failure as a procedural default. See also Brewer v.
    -3-

    Reynolds, 51 F.3d 1519, 1522 (10th Cir. 1995) (same result when, as here, state
    denies relief on procedural grounds when incompetent counsel issue first raised in
    post-conviction proceedings). Further, without access to the state district courts
    file, we cannot determine whether the second ground relied upon by the district
    court -- petitioners failure to specifically describe the contents of the report -was a procedural default at all, and if so, whether it was treated as a default
    separate from the failure to raise the claim on direct appeal.
    If indeed the state court, in dismissing the petition, relied on petitioners
    failure to specify the reports contents, it is not clear whether this was a determination on the merits, such as a dismissal for failure to state a claim, see Federated
    Dept Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981), or a procedural ruling
    similar to a dismissal for failure to plead fraud with particularity, which does not
    go to the merits, see, e.g., Thomas v. Consolidation Coal Co., 380 F.2d 69, 83-84
    (4th Cir. 1967); Knox v. American Natl Bank, 488 F. Supp. 259, 260 (E.D. Mo.
    1980), affd on other grounds, 654 F.2d 19 (8th Cir. 1981); cf. Shriners Hosps.
    for Crippled Children, Inc. v. First Sec. Bank, 835 P.2d 350, 358-59 (Wyo. 1992)
    (holding dismissal of complaint for failure to plead fraud with particularity
    generally requires leave to amend).
    The federal habeas petition in the instant case contains fairly specific
    allegations, including purported quotes from two affidavits of the investigator
    -4-

    who allegedly gave petitioners counsel a report containing exculpatory information. The affidavits are not in the federal court record, but may have been
    provided to the state district court in the post-conviction proceeding. Additionally, it is difficult to understand how petitioner could be expected to describe with
    specificity a report he claims has been withheld from him by the counsel he
    accuses of constitutionally inadequate representation. We might uphold a
    requirement of specificity in pleading incompetent representation by counsel in
    some circumstances, but this is not such a case.
    The issue might be resolved easily by requiring petitioners trial counsel to
    produce the allegedly exculpatory investigative report, if it exists, and to testify at
    a hearing. If necessary the investigator who allegedly prepared the report can be
    called to testify.
    Because the district court erred in finding petitioners ineffective assistance
    claim procedurally barred, we remand the case for further proceedings. We
    therefore deny petitioners motion to expand the record on appeal.
    REVERSED and REMANDED for further proceedings. The mandate shall
    issue forthwith.
    Entered for the Court
    James K. Logan
    Circuit Judge

    -5-

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