David Paul Hammer v. Larry Meachum, Director Oklahoma Department of Corrections and J. M. Sunderland, 691 F.2d 958, 10th Cir. (1982)
David Paul Hammer v. Larry Meachum, Director Oklahoma Department of Corrections and J. M. Sunderland, 691 F.2d 958, 10th Cir. (1982)
2d 958
This three-judge panel has determined unanimously that oral argument would
not be of material assistance in the determination of this appeal. See
Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered
submitted without oral argument.
This is an appeal from an order of the district court dismissing a petition for a
writ of habeas corpus brought under 28 U.S.C. 2254 (1976). The issue is
whether petitioner's state procedural default precludes him from obtaining
federal habeas review. We hold that it does.
Subsequently in May 1979, the petitioner filed an application for postconviction relief1 in state court, claiming that his plea was involuntary and that
he had been denied effective assistance of counsel. The matter was set for a
hearing and an attorney was appointed to represent petitioner. After a four-day
continuance, petitioner withdrew his application. He then unsuccessfully sought
copies at public expense of all the documents on file in his case.
Petitioner then filed a petition in the federal district court seeking a writ of
habeas corpus under 28 U.S.C. 2254. The district court determined that
petitioner's claims were barred from consideration by a federal habeas court
because of his knowing bypass of established state procedures.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme
Court held that a state prisoner who knowingly and deliberately bypasses state
procedures intentionally relinquishes known rights and hence is precluded from
federal habeas relief. Fourteen years later in Wainwright v. Sykes, 433 U.S. 72,
97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held that, absent a showing of
both cause for noncompliance and actual prejudice, federal habeas relief is
barred where a state prisoner has failed to comply with a state contemporaneous
objection rule. The Court stated in a footnote that:
10
We have no occasion today to consider the Fay rule as applied to the facts there
confronting the Court. Whether the Francis rule (Francis v. Henderson, 425
U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) ) should preclude federal
habeas review of claims not made in accordance with state procedure where the
criminal defendant has surrendered, other than for reasons of technical
advantage, the right to have all of his claims of trial error considered by a state
appellate court, we leave for another day.
11
12
The law is unsettled as to whether the Fay test or the Sykes test applies where
the state procedural default is a failure to appeal. See, e.g., Crick v. Smith, 650
F.2d 860 (6th Cir. 1981) (applying Fay deliberate bypass test where default was
failure to appeal), cert. denied, --- U.S. ----, 102 S.Ct. 1281, 71 L.Ed.2d 464
(1982); Forman v. Smith, 633 F.2d 634 (2d Cir. 1980) (applying Sykes where
petitioner failed to raise issue on direct appeal), cert. denied, 450 U.S. 1001,
101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th
Cir.) (applying Sykes where petitioner did not raise issue on direct appeal or
preserve it at trial), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301
(1980); Parton v. Wyrick, 614 F.2d 154 (8th Cir.) (applying Sykes where issue
not presented to state court on direct appeal), cert. denied, 449 U.S. 846, 101
S.Ct. 131, 66 L.Ed.2d 56 (1980); Boyer v. Patton, 579 F.2d 284 (3d Cir. 1978)
(concluding that Sykes did not offer direct guidance where default was failure
to appeal).
13
We need not decide in this case whether Fay or the "narrower" standard of
Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506, applies here. Although petitioner
contends that he was unaware of his appellate rights, the application form he
signed when he sought post-conviction relief states:
I14understand I have an absolute right to appeal to the Court of Criminal Appeals from
the trial court's order entered in this case, but I must do so within thirty (30) days
after the entry of the trial judge's order or I will have waived my right to appeal as
provided by 22 O.S.1971, 1087 and Rule 42 of this court.
15
Rec., Vol. II, at 18. Thus, the district court's finding that petitioner made an
informed choice not to appeal is fully supported by the record. See Watkins v.
Petitioner also alleges that he was transferred from the Oklahoma State
Reformatory in Granite, Oklahoma to the Connor Correctional Center in
Hominy, Oklahoma in violation of Fed.R.App.P. 23(a).2 He seeks an order
mandating that he be returned to the state reformatory. Respondent concedes
that petitioner was transferred in violation of the rule.
17
18
19
The district court's order dismissing the petition is affirmed, and petitioner's
motion is denied. The mandate shall issue forthwith.
judge rendering the decision may make an order authorizing transfer and
providing for the substitution of the successor custodian as a party.