Filed: Patrick Fisher
Filed: Patrick Fisher
OCT 14 1997
PATRICK FISHER
Clerk
No. 96-8064
(D.C. No. 95-CV-206-J)
(D. Wyo.)
Respondents-Appellees.
This order and judgment is not binding precedent, except under the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.
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).
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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.
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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
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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
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