F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 7, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GERALD P. BA RK ELL,
Petitioner - A ppellant,
v. No. 05-8045
BRENT CROUSE, W arden, Crowley
C ounty C orrectional Facility; R. O.
LAM PERT, Director, W yoming
Department of Corrections; PATRICK
CRANK, W yoming Attorney General,
Respondents - Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D.C. NO . 04-CV-015-B)
Christopher Humphrey, Student Intern, (Diane E. Courselle, Director, on the
brief), Defender Aid Program, University of W yoming, College of Law, Laramie,
W yoming, for Petitioner - A ppellant.
David L. Delicath, Senior Assistant Attorney General, (Patrick J. Crank,
W yoming Attorney General, on the brief), Cheyenne, W yoming, for Respondents
- Appellees.
Before HA RTZ, HOL LOW A Y, and O’BRIEN, Circuit Judges.
HA RTZ, Circuit Judge.
G erald B arkell w as convicted by a jury in W yoming state court on two
counts of third-degree sexual assault. After initiating an appeal of his conviction,
he sought a remand to the trial court for an evidentiary hearing regarding a claim
of ineffective assistance of counsel. The Wyoming Supreme Court denied the
request. Continuing his appeal without the benefit of an evidentiary hearing,
M r. Barkell contended that his trial counsel had been constitutionally ineffective
in the preparation for and conduct of the trial, and that the W yoming Supreme
Court had denied him due process and a meaningful appeal by denying his motion
for remand. On October 16, 2002, the court affirmed. Barkell v. State, 55 P.3d
1239, 1246 (W yo. 2002).
On January 14, 2004, M r. Barkell submitted an application for habeas relief
under 28 U.S.C. § 2254 in the United States District Court for the District of
W yoming, raising the same issues raised before the W yoming Supreme Court.
The district court denied relief but granted a certificate of appealability (COA).
See 28 U.S.C. § 2253(c)(1) (requiring COA). M r. Barkell now appeals to this
court. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. W e affirm with
respect to the claims of denial of due process by the W yoming Supreme Court and
ineffective assistance of counsel during trial. But we reverse and remand for
further proceedings on M r. Barkell’s claim that his attorney was ineffective in
preparing for trial. Because (1) he presented allegations to the federal district
court that, if true, would entitle him to relief; (2) he cannot be faulted for failure
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to develop the supporting evidence in state court; and (3) the state court has not
ruled on whether he would be entitled to relief if he were able to prove his
allegations, we do not defer to the state court’s ruling on his ineffective-
preparation claim and we grant him the opportunity to pursue that claim in federal
district court.
I. B ACKGR OU N D
M r. Barkell was charged with sexual assault after his 10-year-old
stepdaughter, BV, accused him of forcing her to engage in sexual acts on
successive nights in early July 1999. Diane Lozano, an attorney with the
W yom ing Public D efender’s O ffice, was appointed to represent him. On
October 26, 1999, Chris M cQueen, a contract public defender, replaced
M s. Lozano and represented M r. Barkell at trial on January 24 and 25, 2000. The
jury returned guilty verdicts on two counts of third-degree sexual assault, in
violation of W yo. Stat. Ann. § 6-2-304(a)(ii). M r. Barkell was sentenced to
consecutive terms of five-to-seven years’ imprisonment on each count.
M r. Barkell, again represented by the W yoming Public Defender’s Office,
filed a timely appeal to the Wyoming Supreme Court on June 5, 2000. On
February 23, 2001, he moved the court to remand the case to the trial court for
“an evidentiary hearing to establish the factual basis for a claim of ineffective
assistance of trial counsel based on the deficient performance by the trial
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counsel.” Aplt. App. Vol. I at 86. On M arch 1 the court denied the motion
without comment. It later affirmed M r. Barkell’s convictions.
M r. Barkell’s application under § 2254 claims (1) violation of his right
under the Sixth and Fourteenth Amendments to effective assistance of counsel,
and (2) violations of the rights to due process and a meaningful appeal by virtue
of the W yoming Supreme C ourt’s denial of his motion for a limited remand. O n
April 20, 2005, the district court denied the application, stating that the W yoming
Supreme Court’s adjudication of his claims was neither contrary to, nor an
unreasonable application of, clearly established federal law.
II. D ISC USSIO N
A. Denial of Remand
On appeal M r. Barkell contends that the state court’s refusal to grant a
limited remand to develop the record for his ineffectiveness claim violated his
rights to due process and a meaningful appeal. The W yoming Supreme Court
rejected this contention, holding that M r. Barkell could not “rely on mere
allegations and speculation” to justify a remand. Barkell, 55 P.3d at 1246.
1. Standard of Review
The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in state court, a
federal court will grant habeas relief only when the applicant establishes that the
state court decision was “contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).
Under the “contrary to” clause, we grant relief only if the state
court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case
differently than the [Supreme] Court has on a set of materially
indistinguishable facts. Under the “unreasonable application” clause,
relief is provided only if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Thus w e may not issue a habeas w rit simply because we conclude in
our independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks
and citations omitted).
2. M erits
Under AEDPA ’s standard of review, M r. Barkell is not entitled to relief on
this claim. M r. Barkell has identified no United States Supreme Court precedent
at the time of the W yoming court’s decision that clearly established his right to an
evidentiary hearing.
M r. Barkell argues that “[w]hen the state provides an appeal of right, the
defendant has a right to an appellate record that is adequate to present his claims
on appeal.” Aplt. Br. at 22. As authority for this proposition he cites Griffin v.
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Illinois, 351 U.S. 12 (1956); Draper v. Washington, 372 U.S. 487 (1963); and
M ayer v. Chicago, 404 U.S. 189 (1971). Griffin held that the Constitution
requires states to provide trial transcripts to indigent defendants appealing their
convictions. See 351 U.S. at 19. Draper held that a state cannot circumvent
Griffin by allowing an indigent defendant a free transcript only if the trial judge
decides that the defendant’s claims on appeal are not frivolous. See 372 U.S. at
499-500. And M ayer held that an indigent defendant is entitled to a free
transcript for purposes of appeal even if he has been convicted only of a
misdemeanor and fined rather than incarcerated. See 404 U .S. at 195-98. Thus,
these cases all deal with an indigent defendant’s right to obtain for appeal a
transcript of judicial proceedings that would be available to those w ho can afford
to pay for one, not, as here, an attempt to add to the record of those proceedings
by conducting supplemental proceedings. They do not provide clearly established
precedent for M r. Barkell’s argument.
In addition, M r. Barkell cites Cuyler v. Sullivan, 446 U.S. 335 (1980);
United States v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, 466 U.S.
668 (1984); and Evitts v. Lucey, 469 U.S. 387 (1985), for the proposition that he
was entitled to the effective assistance of counsel on his appeal. From that
proposition he argues that an evidentiary hearing was necessary for his appellate
counsel to provide adequate representation. But none of the cited cases addresses
denial of an evidentiary hearing in the course of an appeal. Cuyler held that a
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defendant with a privately retained lawyer, like a defendant with appointed
counsel, may raise a Sixth Amendment claim of ineffective assistance. See 446
U.S. at 344-45. Cronic held that most claims of ineffective assistance require
proof of deficient performance and that only rarely do the surrounding
circumstances justify a presumption of ineffectiveness. See 466 U.S. at 658-62.
Strickland addressed the “meaning of the constitutional requirement of effective
assistance,” 466 U.S. at 686, holding that to prove an ineffectiveness claim the
defendant must show that counsel’s performance “fell below an objective standard
of reasonableness,” id. at 688, and that the deficiency prejudiced the defense, see
id. at 687. Evitts held that due process guarantees the effective assistance of
counsel to a defendant pursuing a first appeal as of right. See 469 U.S. at 396.
These cases simply do not consider the issue now before us. Attractive as
M r. Barkell’s legal contention may be, he has not shown that the W yoming
Supreme Court decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); see Penry v. Johnson, 532 U.S. 782, 795
(2001) (state court’s decision was not unreasonable or contrary to federal law
when there were “substantial” differences between the case before the state court
and the Supreme C ourt case relied on by the defendant). Nevertheless, as we
shall see in addressing M r. Barkell’s allegations of pretrial ineffectiveness of
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counsel, the state court’s decision to refuse an evidentiary hearing can affect our
review of his other claims.
B. Ineffective Assistance
A defendant making an ineffective-assistance-of-counsel claim must show
both that counsel’s performance “fell below an objective standard of
reasonableness” and that “the deficient performance prejudiced the defense.”
Strickland, 466 U .S. at 687-88. Review of counsel’s performance under the first
prong of the Strickland test is highly deferential. “[C]ounsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. To be deficient, the
performance must be “outside the wide range of professionally competent
assistance.” Id. Counsel’s decisions are presumed to represent “sound trial
strategy”; “[f]or counsel’s performance to be constitutionally ineffective, it must
have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d
904, 914 (10th Cir. 1999) (internal quotation marks omitted). As for the
prejudice prong, the defendant must establish a reasonable probability that “but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” United States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992) (internal
quotation marks omitted). If the defendant is unable to show either “deficient
performance” or “sufficient prejudice,” the ineffectiveness claim will fail.
Strickland, 466 U.S. at 700.
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M r. Barkell raises a number of claims of ineffective assistance of his trial
counsel. For purposes of analysis it is convenient to divide them into tw o groups.
The first group we address will be those that rest on the record of the state trial
court. The second group consists of claims for which M r. Barkell relies, at least
in part, on evidence outside that record. Because the claims in the first group all
relate to conduct during trial, we will refer to them as “Trial Errors.” The
remaining claims allege deficiencies in pretrial preparation and will be called
“Pretrial Errors.”
1. Alleged Trial Errors
M r. Barkell argues that M r. M cQueen failed to represent him adequately
during trial and lacked “basic legal knowledge concerning trial practice, rules and
standards.” Aplt. Br. at 25. M r. Barkell first complains that M r. M cQueen did
not question BV’s competency to testify, arguing that a hearing on the matter
would have “reinforced to BV [the] seriousness of the testimony” and, if she had
been found incompetent, would have “substantially weaken[ed] the state’s case.”
Id. at 34. He also suggests that such a hearing would have helped him prepare for
trial. W e are unpersuaded. M r. Barkell does not cite any evidence that BV, who
was 11 at the time of trial, was incompetent to testify. And as for the contention
that a hearing on BV’s competency would have impressed her with the
seriousness of her testimony or provided a useful practice run for cross-examining
her at trial, M r. Barkell provides no basis for his speculation that BV might have
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changed her testimony after such a hearing, nor does he explain how
M r. M cQueen may have altered his cross-examination strategy as a result of the
proposed hearing. M ore importantly, an attorney does not provide deficient
representation by failing to pursue an unfounded motion, regardless of the
possible tactical advantages that might result from doing so. Indeed, we would
fault an attorney for intentionally abusing the judicial process in that manner. See
Putnam v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001) (“Although an attorney
has an ethical duty to advance the interest of her client, that duty is limited by an
equally solemn duty to comply with the law and standards of professional
conduct.” (internal quotation marks and brackets omitted)). Accordingly, we
reject this claim.
Second, M r. B arkell criticizes M r. M cQueen’s cross-examination of BV,
stating that he “used words, complex questions, and lines of reasoning that
confused not only BV, but also the court.” Aplt. Br. at 35. The W yoming
Supreme Court did not specifically address M r. Barkell’s contention that
M r. M cQueen’s cross-examination of BV was confusing, but rejected the general
claim of ineffective cross-examination of BV on the ground that M r. Barkell had
“fail[ed] to elucidate any failings that fall below the standard of a reasonably
competent attorney, especially any that were likely to have changed the outcome
of the trial.” Barkell, 55 P.3d at 1244. The W yoming Supreme Court was not
unreasonably construing Strickland in determining that a few poorly framed
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sentences did not constitute ineffective representation. Applying AEDPA’s
deferential standard of review, we reject this claim of ineffective assistance.
M r. Barkell also complains that M r. M cQueen’s cross-examination of the
state’s expert witness was deficient, particularly in inadvertently eliciting a
statement from the expert that children in stepparent households are more likely
to be abused than other children. The W yoming Supreme Court rejected this
claim, deciding that M r. M cQueen’s cross-examination of the state’s expert was
“relevant and useful to the theory which the defense was pursuing.” Id. at 1244.
Under A EDPA deference, we affirm the denial of this claim. W e note, however,
that this claim is intimately tied to M r. Barkell’s claim of ineffective pretrial
preparation. W e are not at this point disposing of the claim that deficient
investigation of the case led M r. M cQueen (1) to ask questions that had
prejudicial consequences and (2) to fail to ask questions that would have elicited
helpful testimony.
M r. Barkell next complains that M r. M cQueen did not do enough to
undermine BV’s credibility. He argues that M r. M cQueen called only three
witnesses to challenge her testimony (two babysitters and her mother’s aunt) and
that he evoked only “minimally useful testimony” from them concerning BV’s
tendency to lie. Aplt. Br. at 40. M r. Barkell’s sole argument before the
W yoming Supreme Court regarding these witnesses was to complain of
M r. M cQueen’s unsuccessful attempt to introduce testimony of specific instances
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of BV’s untruthfulness, and to surmise that had M r. M cQueen understood the
W yoming evidentiary rules, he would have been able “to come up w ith an
alternative theory of relevance for certain instances of untruthfulness— such as
demonstrating BV’s particular motives to lie about M r. Barkell.” Aplt. App. Vol.
II at 390. The W yoming Supreme Court rejected this argument, noting that
M r. M cQueen was able to elicit testimony regarding BV’s reputation for
untruthfulness, and that no prejudice had resulted from the alleged shortcomings.
See Barkell, 55 P.3d at 1245. In his brief to us, M r. Barkell does not explain what
more the witnesses could have done to undermine BV’s testimony, except to
suggest that testimony regarding specific falsehoods could have been admitted to
show that “when BV thought she was in trouble, she simply lied and blamed
someone else.” A plt. Br. at 46. But because this suggestion was not made to
support M r. Barkell’s ineffectiveness claim in the W yoming Supreme Court, the
argument based on this suggestion is unexhausted, see 28 U.S.C. § 2254(b)(1)(A )
(relief is not available under § 2254 unless “the applicant has exhausted the
remedies available in the courts of the State”); Picard v. Connor, 404 U.S. 270,
275-76 (1971) (“[T]he federal claim must be fairly presented to the state
courts . . . . Only if the state courts have had the first opportunity to hear the
claim sought to be vindicated in a federal habeas proceeding does it make sense to
speak of the exhaustion of state remedies.”). And in any event, failure to make
this creative evidentiary argument at trial would not be “outside the wide range of
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professionally competent assistance.” Strickland, 466 U.S. at 690. The state
court’s decision that the alleged errors in presenting these defense witnesses did
not constitute ineffective assistance was not contrary to or an unreasonable
application of federal law. See 28 U.S.C. § 2254(d).
M r. Barkell further argues that M r. M cQueen’s closing argument was
deficient because he “brought out a few inconsistencies in BV’s testimony, but
failed to point out many of the most important ones.” Aplt. Br. at 41.
M r. Barkell specifically points to BV’s misstating by eight months the date that
she and her family had moved in w ith M r. Barkell. The W yoming Supreme Court
rejected this argument, stating that M r. M cQueen had identified some
inconsistencies in BV’s testimony and that the “few additional inconsistencies
identified by Barkell . . . are trivial at best and unrelated to the elements of the
sexual abuse allegations. Counsel’s decision not to list for the jury every possible
inconsistency in the testimony cannot be said to be ineffective assistance.”
Barkell, 55 P.3d at 1244. W e agree. Jurors pay attention. They are highly likely
to observe the more significant inconsistencies in a witness’s testimony, and they
may well be more persuaded of the importance of an inconsistency if they think
that they have made the discovery on their own rather than on the importuning of
an advocate. Cf. Cannon v. M ullin, 383 F.3d 1152, 1164 (10th Cir. 2004) (“It is
not . . . always the best trial strategy to exploit every inconsistency in the
statements of a witness, even a witness called by opposing counsel.”). The state
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court’s rejection of this claim was not contrary to or an unreasonable application
of federal law. See 28 U.S.C. § 2254(d).
M r. Barkell finally claims that M r. M cQueen’s representation was
ineffective “because he lacked rudimentary knowledge of trial procedures and
legal principles.” Aplt. Br. at 43. The W yoming Supreme Court denied the
various claims made by M r. Barkell in this section of his brief because the alleged
errors did not result in prejudice. See Barkell, 55 P.3d at 1244-45. W e agree.
2. Alleged Pretrial Errors
M r. Barkell makes tw o claims of ineffective assistance related to
M r. M cQueen’s preparation for trial: (1) failure to investigate and (2) failure to
consult an expert witness. W e address each in turn.
a. Failure to Investigate
M r. Barkell claims that M r. M cQ ueen failed to investigate adequately BV’s
school and counseling experiences, which would have led to evidence
undermining her credibility. He asserts that he informed M r. M cQ ueen before
trial that BV had been in counseling, but M r. M cQueen never attempted to speak
with her counselors. He also asserts that he specifically requested that
M r. M cQueen interview and call at trial BV’s school counselor and fourth-grade
teacher, whose testimony would have impeached BV’s credibility, yet
M r. M cQueen failed to do so. He states that M r. M cQueen should have known
that counseling records would likely contain information regarding BV’s alleged
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tendency to lie, as well as information regarding “her feelings towards and
possible motives against M r. Barkell,” Aplt. Br. at 28, and that under these
circumstances “a reasonable attorney would have realized that family and school
counseling involving the alleged victim could be a valuable resource in
determining the alleged victim’s personality, propensity and motives to lie,” id. at
28-29. He contends that if M r. M cQueen had obtained this evidence, it “would
have changed the outcome at trial.” Id. at 28.
The W yoming Supreme Court rejected this claim on the ground that “a
defendant does not meet his burden to show his counsel’s performance was
deficient by mere speculation or equivocal inferences as to potential witnesses
and testimony that could have been called at trial.” Barkell, 55 P.3d at 1243. The
court faulted M r. Barkell for making “the assumption that, because BV was in
counseling, there may be evidence in her counseling records to support his
defense theory that she was either dishonest or motivated to fabricate the
allegations of sexual assault,” and added that “[b]ecause Barkell does not identify
any specific testimony or evidence that the counselors would have offered, the
presumption that trial counsel rendered adequate assistance and exercised
reasonable professional judgment is not rebutted.” Id.
But M r. Barkell has identified such evidence for us. He has submitted a
copy of his state-court motion for a limited remand, which included several
attachments. A self-styled “affidavit” (unnotarized) from M r. Barkell stated that
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he had discussed BV’s counseling history with M r. M cQueen and had asked him
to interview Sue M axted, BV’s counselor, and M rs. Hartman, BV’s fourth-grade
teacher, but that M r. M cQueen had not tried to obtain information regarding the
counseling or otherwise complied with his requests. M r. Barkell also attached an
affidavit from his sister, Lynn Allred, who had attended several pretrial meetings
with M r. M cQueen, in which she asserted that “M r. M cQueen failed to talk to or
investigate many of the possible witnesses that we had presented to him,”
including M s. M axted and BV’s teachers. She stated that M r. M cQueen “failed to
get many of the documents and reports of the victim’s past problems, including
the reports from . . . their family counselor and reports from the previous safe
houses and foster homes which the victim was in.” Aplt. A pp. Vol. I at 144.
In addition, copies of BV’s counseling records were attached to the motion.
These records, which relate to counseling sessions when BV was in grades one
through four, refer several times to BV’s tendency to lie. The records from first
grade contain three references to her lying, and records from second grade contain
two such references.
In light of the support for M r. Barkell’s deficient-investigation claim, we
must ask whether we can consider this support and, if so, how that affects our
standard of review of the decision by the W yoming Supreme Court. The answer
to these questions depends on whether (1) M r. Barkell made adequate efforts to
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present evidence in state court and (2) the W yoming court ruled on whether
M r. Barkell’s allegations, if true, would establish an ineffective-assistance claim.
Habeas applicants w ho have not received an evidentiary hearing in state
court may be entitled to an evidentiary hearing in federal court. AEDPA states:
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(I) a new rule of constitutional law , made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence;
and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). “U nder the opening clause of § 2254(e)(2), a failure to
develop the factual basis of a claim is not established unless there is a lack of
diligence, or some greater fault, attributable to the prisoner or the prisoner’s
counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). “If the prisoner did not
fail to develop the factual basis for his claim in State court, § 2254(e)(2) is not
applicable and a federal habeas court should proceed to analyze whether an
evidentiary hearing is appropriate or required under pre-AEDPA standards.”
Cannon v. M ullin, 383 F.3d 1152, 1176 (10th Cir. 2004) (internal brackets and
quotation marks omitted). Thus, the threshold issue is w hether M r. Barkell
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exercised sufficient diligence in state court to avoid the strictures of § 2254(e)(2).
W e believe that he did.
Our conclusion is based on our reading of W yoming law before
M r. Barkell’s appeal. In most jurisdictions claims of ineffective assistance are
brought in postconviction collateral proceedings. See Massaro v. United States,
538 U.S. 500, 504, 508 (2003) (agreeing with most federal circuits and a
“growing majority of state courts” that ineffectiveness claims need not be raised
on direct appeal and that “in most cases [postconviction collateral proceedings
are] preferable to direct appeal for deciding claims of ineffective assistance.”).
Evidence of ineffectiveness can be gathered after trial, or even after exhaustion of
direct appeals, and presented to the court for consideration. W yoming law,
however, allows criminal defendants to raise ineffectiveness claims only on direct
appeal. See Calene v. State, 846 P.2d 679, 683 (W yo. 1993). To supplement the
trial record with evidence of ineffectiveness, the defendant must move the state
supreme court (the state’s sole appellate court) for a limited remand. See id. at
692.
As previously described, M r. Barkell submitted such a motion,
accompanied by several supporting attachments. The W yoming Supreme Court
denied the motion for limited remand w ithout explanation. In its decision on the
merits, however, the court explained as follows its rejection of his claim that he
was improperly denied a remand:
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[M r.] Barkell claims that he w as entitled to remand for an evidentiary
hearing on his claims of ineffective assistance of counsel, citing
Calene v. State, 846 P.2d 679 (W yo. 1993). The present case,
however, is more similar to Griswold v. State, 994 P.2d 920, 930-31
(W yo. 1999). Appellant cannot rely on mere allegations and
speculation for the purpose of obtaining a remand to develop a record
on his claims of ineffective assistance. W e previously denied
Barkell’s M otion for a Partial Remand and, in his appellate brief, he
provides no additional facts or argument justifying a remand.
Barkell, 55 P.3d at 1245-46.
If the state court’s denial of an evidentiary hearing was the consequence of
M r. Barkell’s “failure” to comply with established requirements of state law, then
under AEDPA he is not entitled to such a hearing in federal court and we grant
deference under § 2254 to the state court’s decision on the merits. See 28 U.S.C.
§ 2254(d) (deferring to state court’s rulings of law ); see also § 2254(e)(1) (“[A]
determination of a factual issue made by a State court shall be presumed to be
correct.”). Not complying with established requirements w ould ordinarily
constitute the fault necessary to impose the strict limitations of § 2254(e)(2) on
the opportunity for a federal evidentiary hearing.
But if M r. Barkell complied with what reasonably appeared to be the
established state-law requirements, he cannot be said to have “failed to develop
the factual basis of [his] claim,” id. § 2254(e)(2), even if his reasonable
interpretation of state law turned out to be wrong, see W illiams, 529 U.S. at 432
(such a failure “is not established unless there is a lack of diligence, or some
greater fault”); cf. Osborn v. Shillinger, 861 F.2d 612, 618 (10th Cir. 1988) (“[I]f
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a petitioner could not reasonably have been aware that a procedural rule w ould
prevent the court from addressing the merits of his claim, his violation of that rule
cannot bar federal review.”). In our view, M r. Barkell’s efforts complied with a
reasonable (although apparently incorrect) interpretation of the mandates of
W yoming law as it stood before his appeal. W e do not question the W yoming
Supreme Court’s construction of W yoming law. As the dissent states, that court
has the last word on whether M r. Barkell’s request for an evidentiary hearing
satisfied the requirements of W yoming law at the time of its ruling on that
request. But whether M r. Barkell, for purposes of § 2254(e)(2), was at fault in
not obtaining an evidentiary hearing depends not on how W yoming law was
construed in his own appeal but, rather, on what the law reasonably appeared to
be at the time he filed his request for an evidentiary hearing. In other w ords, it is
clear (because the W yoming Supreme Court said so) that his request for an
evidentiary hearing was inadequate, but whether this inadequacy triggers denial of
a federal evidentiary hearing under § 2254(e)(2) depends on whether he was
negligent (or worse) in submitting an inadequate request. On this point we do not
defer to the W yoming courts. Indeed, a state court would have no occasion to
determine w hether the defendant has satisfied the § 2254(e)(2) requirements for a
federal evidentiary hearing, so we have no state adjudication on the matter to
which we could defer.
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Turning, then, to the content of W yoming law when M r. Barkell moved for
an evidentiary hearing, the requirements for obtaining a remand had been set forth
in the W yoming Supreme Court decision in Calene. That decision held that a
defendant seeking an evidentiary hearing to develop a factual record must submit
a motion for remand that is “appropriately supported by contentions defining and
supporting any ineffectiveness claim in detail and supported, as may be
appropriate, by affidavit sufficient to establish substantiality.” Calene, 846 P.2d
at 692; see id. at 687 (“[I]t is necessary for serious and specific allegations of
ineffectiveness to be sufficiently stated and documented to show a real issue
before the trial court can be put to the additional requirement of providing an
evidentiary hearing.”). The W yoming Supreme Court remanded for an
evidentiary hearing in that case. Id. at 694. The remand w as predicated solely on
“the letter of complaint by appellant addressed to the trial court.” Id. at 684. The
appellant had been convicted of charges relating to theft of an automobile. Id. at
681. He admitted painting the vehicle but denied knowing that it was stolen,
saying that he was simply hired to do the painting. Id. at 682. His letter asserted
that he had informed his attorney of witnesses who could testify to his lack of
knowledge and other exculpatory matters. Id. The court concluded:
W e do not assume or determine that valuable witnesses did exist or
that a failure of investigation and preparation adversely denied
valuable testimony to the defendant. W e find the contentions
sufficiently substantial in the record now presented that a hearing
should be held. At the hearing, defense counsel can testify and
-21-
Calene can provide additional evidence for any substantiation
regarding the usefulness of non-called witnesses as evidence upon
which the trial court’s decision may be rendered regarding the
standard of counsel performance.
Id. at 693. Contrary to the dissent, we see nothing in the Calene opinion to
suggest that the W yoming Supreme Court was giving Calene “a break,” Dissent at
7, and holding him to less stringent requirements than would be imposed on later
appellants seeking an evidentiary hearing.
M r. Barkell could reasonably have believed that his request for an
evidentiary hearing met the Calene standard by making specific allegations of his
counsel’s pretrial failures to follow substantial leads from his client and resulting
prejudice. M r. Barkell’s allegations may have been unsworn, but M r. Calene’s
clearly were. Uncertain why the W yoming Supreme Court denied him an
evidentiary hearing, we believe that M r. Barkell did not exhibit the fault required
by W illiam s, 529 U.S. at 432, to bring him under § 2254(e)(2) for not obtaining
an evidentiary hearing in state court. It is useful to contrast this case with two in
which the defendant’s showing was held inadequate. First, Calene, 846 P.2d at
687, cites Leach v. State, 836 P.2d 336 (W yo. 1992), as providing an example of a
showing that did not support remand for a hearing. In that case the support for a
hearing in the motion for remand consisted only of the following:
2. It is Appellant’s contention that his counsel at trial was
ineffective, and he desires that the issue of ineffectiveness of
counsel be raised on this appeal.
-22-
3. That there is no record of objection to ineffective assistance at
the trial court level, nor does the present record contain facts
necessary to develop appellant’s claim.
Leach, 836 P.2d at 341. M r. Barkell’s showing is far stronger. Second, on
M r. Barkell’s appeal the W yoming court stated that his case was more similar to
Griswold v. State, 994 P.2d 920, 930-31 (W yo. 1999), than to Calene. See
Barkell, 55 P.3d at 1245-46. But in Griswold the W yoming Supreme Court’s only
discussion regarding the request for an evidentiary hearing was the following:
Relying on Calene v. State, 846 P.2d 679 (W yo. 1993), Grisw old
argues only that “appellate counsel is filing a M otion for Partial
Remand and Affidavit in Support Thereof for the purpose of having
the matter remanded to the District Court for the taking of evidence
on this issue.” W e denied his M otion for Partial Remand, finding
that Grisw old failed to provide a substantial factual basis for his
claim. M oreover, in his appellate brief, Grisw old provides no facts
or arguments in support of this assertion. W e have consistently held
that we will not consider claims unsupported by cogent argument and
authority. M adrid v. State, 910 P.2d 1340, 1347 (W yo. 1996).
994 P.2d at 930-31. This discussion would have given M r. Barkell no guidance
regarding what was missing from his pleadings that would be necessary to entitle
him to an evidentiary hearing under W yoming law. Accordingly, we hold that
M r. Barkell was not at fault in failing to obtain an evidentiary hearing in state
court, and § 2254(e)(2) does not apply.
W e must now decide w hether M r. Barkell is entitled to an evidentiary
hearing under the pre-AEDPA standard, which provides that the habeas applicant
is entitled to an evidentiary hearing in federal district court “if (1) the facts were
-23-
not adequately developed in the state court, so long as that failure was not
attributable to the petitioner, . . . and (2) his allegations, if true and not
contravened by the existing factual record, would entitle him to habeas relief.”
Cannon, 383 F.3d at 1175 (internal brackets, quotation marks, and citations
omitted). W ith respect to the first requirement, we have already decided that the
lack of a state-court evidentiary hearing should not be attributed to M r. Barkell.
He proceeded in a manner that was reasonable under W yoming precedent. Hence,
M r. Barkell is entitled to an evidentiary hearing in federal district court if his
allegations, if true, would entitle him to habeas relief. See Cannon, 383 F.3d at
1175.
Before providing our view on the matter, we must first consider whether
the W yoming Supreme Court has already addressed that issue. The dissent
suggests that the W yoming court rejected M r. Barkell’s motion for remand on the
ground that an evidentiary hearing would be futile because his ineffectiveness
claim would fail even if he w ere able to prove the allegations in his motion. If
that had been the basis for the court’s rejection, AEDPA would require us to defer
to the court’s determination of the underlying federal constitutional law— namely,
the determination that M r. Barkell’s allegations did not state a claim of
ineffective assistance of counsel. See H ammon v. Ward, No. 05-6168, 2006 W L
3020639, at *7 (10th Cir. Oct. 25, 2006). That is, if the W yoming court
reasonably construed federal law to be that the allegations in M r. Barkell’s
-24-
remand motion failed to state a claim of ineffectiveness of counsel, we would
need to accept that ruling and deny M r. Barkell an evidentiary hearing in federal
court, because the hearing could not benefit him on the merits. See id.
In our view, however, that was not the basis for the W yoming Supreme
Court’s rejection of the motion to remand. First, that court’s decision does not
say that it is rejecting remand because it would be futile; it says that a hearing
cannot be justified by “mere allegations and speculation.” Barkell, 55 P.3d at
1246. The implication is that affidavits are required.
M ore importantly, the W yoming court’s discussion of the merits of
M r. Barkell’s ineffectiveness claim (based on the record, without reference to the
allegations and evidence in his motion for remand) suggests that its analysis
would need to be revised if it were to assume the truth of the allegations in the
remand motion, yet the court never hinted that it was undertaking such a revised
analysis. W hen the court rejected on the merits M r. Barkell’s claim of ineffective
assistance of counsel in trial preparation, it noted that “[h]e makes the assumption
that, because BV was in counseling, there may be evidence in the counseling
records to support his defense theory that she was either dishonest or motivated to
fabricate the allegation of sexual assault,” id. at 1243, and then went on to say
that the presumption of effective assistance had not been rebutted “[b]ecause
Barkell does not identify any specific testimony or evidence that the counsellors
would have offered,” id. These statements were made without consideration of
-25-
the materials contained in M r. Barkell’s motion for remand (including copies of
counseling records repeatedly stating that BV had lied), because the motion had
been denied. They suggest, though, that a different result— or at least further
consideration and analysis— would be required to dispose of the merits if
M r. Barkell had in fact identified “specific . . . evidence” in the counseling
records showing that BV “was . . . dishonest.” Id. Consequently, the W yoming
court could not conclude that the allegations in M r. Barkell’s motion for remand
failed to state a claim of ineffective assistance unless the court were to go beyond
its earlier analysis and determine that counseling records reporting BV’s
dishonesty would not support the ineffectiveness claim. That the Barkell opinion
contained no such analysis strongly implies that its rejection of the motion to
remand w as based on the form, rather than the substance, of the allegations in the
motion.
W e therefore conclude that the W yoming Supreme Court has not decided
whether M r. Barkell’s allegations would entitle him to relief if he proved them.
In denying M r. Barkell’s ineffectiveness claim, the W yoming court was deciding
a different issue from what is before us. Accordingly, we have no W yoming
decision to defer to when we consider the sufficiency of M r. Barkell’s allegations
of ineffective pretrial preparation. Our situation is similar to that of a federal
court considering a habeas claim after a federal-court evidentiary hearing
provides material facts not considered by the state court. See Bryan v. M ullin,
-26-
335 F.3d 1207, 1215-16 & n.7 (10th Cir. 2003) (en banc) (declining to apply
§ 2254(d)’s deferential standard of review when the state court had denied an
evidentiary hearing on ineffectiveness claims and federal district court had
conducted one); M ayes v. Gibson, 210 F.3d 1284, 1289 (10th Cir. 2000)
(review ing additional evidence proffered by habeas applicant without deference to
the state court’s factual findings when state court denied an evidentiary hearing).
C onducting our independent analysis of M r. Barkell’s allegations, we
believe that he has adequately alleged deficient pretrial investigation. “The duty
to investigate derives from counsel’s basic function . . . to make the adversarial
testing process work in the particular case.” William son v. Ward, 110 F.3d 1508,
1514 (10th Cir. 1997) (internal quotation marks omitted). “[C]ounsel has a duty
to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. (internal quotation marks omitted). In
light of the prosecution’s complete reliance on the victim’s veracity and the leads
given by M r. Barkell and his sister, it would have been unreasonable for M r.
M cQ ueen not to investigate w hether records and witnesses regarding BV’s
counseling and school experiences could suggest her propensity to lie or her
motive to harm M r. Barkell. See Rom pilla v. Beard, 125 S. Ct. 2456, 2460, 2467
(2005) (it was unreasonable for counsel not to read case file he knew the
prosecution would rely on at sentencing, even though the defendant and his
family had suggested that no mitigating evidence existed). The content of the
-27-
records submitted by M r. Barkell with his motion for limited remand indicates
that the results of any such investigation would have been helpful to the defense.
W e therefore conclude that M r. Barkell is entitled to an evidentiary hearing in
federal district court, at which the court can ascertain whether M r. Barkell is able
to prove the necessary deficiencies and prejudice.
b. Failure to Consult Expert
M r. Barkell also complains about M r. M cQueen’s failure to consult with or
call at trial an expert witness on child psychiatry. He argues that this failure was
unreasonable because M r. M cQueen had the resources to call an expert witness, it
is common for the prosecution to call an expert witness in child-sex-abuse cases,
and a reasonable defense attorney would use an expert to prepare. He claims that
his defense w as prejudiced by this failure because (1) consultation with an expert
w ould have aided M r. M cQ ueen’s cross-examination of the state’s expert and BV,
and (2) a defense expert “could have explained to the jury how children’s
testimony should be evaluated, as well as shed light on problems with the
testimony of the state’s expert.” Aplt. Br. at 32.
An affidavit from M s. Lozano, the public defender originally assigned to
M r. Barkell’s case, submitted with the state-court motion for a limited remand
supports his claim that it was unreasonable for M r. M cQueen not to consult an
expert. The affidavit states, “[I]t is standard practice to enlist the use of an expert
-28-
in child sex abuse cases, whether to help prepare for cross examination or to
testify as a defense witness.” Aplt. A pp. at 138-39.
As for a showing of prejudice, although the independent-expert report
submitted by M r. Barkell with the remand motion lists 14 factors that support
BV’s credibility, it also lists five factors that question her credibility. In addition,
the report states that the “expert could have . . . informed the jury about the body
of knowledge and research on children’s false allegations of sexual abuse.” Id. at
216. On the other hand, the report also stated: “I do not disagree with anything
the state’s expert said.” Id.
This last statement convinces us that it was not ineffective assistance to fail
to call the expert as a witness. Ultimately, her testimony would simply have
corroborated that of the government’s expert, and would have had the added
prejudicial impact of emanating from the defense.
But consultation to assist in cross-examination is another matter. The
report suggests that M r. M cQueen could have scored some points on cross-
examination of the prosecution’s expert. And, more importantly, prior
consultation would likely have prevented him from asking whether children in
stepparent families are more likely to be abused than other children, a question
that elicited a damaging affirmative answer. Although we are uncertain whether
this prejudice would itself be sufficient to sustain M r. Barkell’s ineffectiveness
claim, the prejudice resulting from this lapse may well have added to any
-29-
prejudice resulting from M r. M cQueen’s failure to investigate BV’s school and
counseling experience. M r. Barkell is thus entitled to include this matter in the
evidentiary hearing in federal district court. After the hearing the court will be
equipped to decide whether the failure to consult an expert was constitutionally
ineffective in itself or in combination with the alleged failure to investigate.
III. C ON CLU SIO N
W e AFFIRM the district court’s denial of relief on M r. Barkell’s failure-to-
remand claim and on those of M r. Barkell’s ineffectiveness claims related to his
attorney’s performance at trial. W e REVERSE the denial of M r. Barkell’s other
ineffectiveness claims, and REM AND to the district court to hold an evidentiary
hearing.
-30-
O5-8045, Barkell v. Crouse
O’BRIEN, J., concurring in part and dissenting in part
I am pleased to join the majority opinion except for Part 2 - Alleged
Pretrial Errors. From that discussion and holding, I respectfully dissent.
The masterful style of the majority opinion obscures what, for me, is the
core issue relating to the claimed pretrial errors, AEDPA deference.
There is no doubt Congress intended AEDPA to advance these
doctrines [comity, finality and federalism]. Federal habeas corpus
principles must inform and shape the historic and still vital relation of
mutual respect and common purpose existing between the States and
the federal courts. In keeping this delicate balance we have been
careful to limit the scope of federal intrusion into state criminal
adjudications and to safeguard the States' interest in the integrity of
their criminal and collateral proceedings. See, e.g., Coleman v.
Thom pson, 501 U.S. 722, 726, 111 S.Ct. 2546, 115 L.Ed.2d 640
(1991) (“This is a case about federalism. It concerns the respect that
federal courts owe the States and the States’ procedural rules when
reviewing the claims of state prisoners in federal habeas corpus”);
M cCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d
517 (1991) (“[T]he doctrines of procedural default and abuse of the
writ are both designed to lessen the injury to a State that results
through reexamination of a state conviction on a ground that the State
did not have the opportunity to address at a prior, appropriate time;
and both doctrines seek to vindicate the State's interest in the finality
of its criminal judgments”).
Williams v. Taylor, 529 U.S. 420, 436 (2000) (emphasis added).
The W yoming Supreme Court twice addressed Barkell’s claims of
ineffective assistance of trial counsel and his request for a hearing on that issue. It
considered and denied his request for an evidentiary hearing in an unpublished
order. Later it revisited the issue (as well as his other arguments) in a formal
opinion. Barkell v. State, 55 P.3d 1239 (W yo. 2002). It concluded his request for
a hearing was not adequately supported, saying:
In his second issue, Barkell claims that he was entitled to remand for
an evidentiary hearing on his claims of ineffective assistance of
counsel, citing Calene v. State, 846 P.2d 679 (W yo.1993). The
present case, however, is more similar to Griswold v. State, 994 P.2d
920, 930-31 (W yo.1999). Appellant cannot rely on mere allegations
and speculation for the purpose of obtaining a remand to develop a
record on his claims of ineffective assistance. W e previously denied
Barkell's M otion for a Partial Remand and, in his appellate brief, he
provides no additional facts or argument justifying a remand. Id.
Id. at 1245-46.
The W yoming Supreme Court’s opinion is crystal clear. In A EDPA’s
words, Barkell failed to “develop the factual basis for his claim.” 1 That is a merits
decision entitled to AEDPA deference. 2 But instead of deferring to the W yoming
Supreme Court the majority shifts focus saying, “Thus, the threshold issue is
whether M r. Barkell exercised sufficient diligence in state court to avoid the
strictures of § 2254(e)(2).” 3 (M ajority Op. at 18.) Since he “identified such
1
“If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the [federal district] court shall not hold an evidentiary
hearing on the claim, unless . . . .” 28 U.S.C. § 2254(e)(2) (emphasis added).
2
28 U.S.C. § 2254(d)
3
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
(continued...)
-2-
4
evidence for us” (M ajority Op. at 16) he thereby qualifies for a hearing. But
Barkell has identified no evidence for us that he had not already identified for the
W yoming Supreme Court. 5 The majority simply substitutes its view of sufficiency
for that of the W yoming Supreme Court. Conveniently that obviates any need to
demonstrate how the W yoming decision is contrary to or an unreasonable
3
(...continued)
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2).
4
The evidence Barkell has “identified for us” is the very same evidence the
W yoming Supreme Court held to be insufficient.
5
In that regard this case is distinctly different from Williams. In W illiam s
no state court had ruled upon the adequacy of a request for an evidentiary hearing
because the underlying issue was first raised in federal court where W illiams
claimed the Commonwealth of Virginia failed to disclose a plea agreement with a
co-defendant offered in exchange for incriminating testimony against him.
W illiam s, 529 U.S. at 427. There was no occasion to consider whether deference
was due to a state determination about the adequacy of his application since no
application was made to a state court. The issue is squarely presented here, where
the W yoming Supreme Court considered and decided the issue.
The ultimate question is whether this Court is enforcing federally derived
rights or merely usurping state prerogatives. If this state decision is to be
overturned, the panel should clearly explain how the W yoming Supreme Court’s
decision is contrary to or an unreasonable application of federal law as
determined by the United States Supreme Court.
-3-
application of United States Supreme Court precedent. Indeed, no attempt is made
to do so.
I think the majority has miscast the issue. It confesses the obvious — the
W yoming Supreme Court is the final arbiter of W yoming law and procedure —
and it acknowledges that under W yoming law Barkell’s petition was insufficient
“because the W yoming Supreme Court said so.” (M ajority Op. at 21.) But then,
citing W illiam s, it says the issue here is not the sufficiency of the application, but
diligence in presenting it. It errs because in this case the issue of diligence is
subsumed in the sufficiency inquiry. 6 Diligence requires all available evidence be
discovered, marshaled and presented to the state tribunal. Id at 437. Barkell
presented to the W yoming Supreme Court such evidence as he thought sufficient
in support of his petition and he offered no new evidence to the district court. H e
does not claim the prosecution “hid the ball” or some other happenstance 7
prevented him from finding and presenting relevant material. But the majority
puts a new twist on the diligence test.
6
“Yet comity is not served by saying a prisoner ‘has failed to develop the
factual basis of a claim’ where he w as unable to develop his claim in state court
despite diligent effort.” Williams, 529 U.S. at 437 (emphasis added).
7
“To say a person has failed in a duty implies he did not take the necessary
steps to fulfill it. He is, as a consequence, at fault and bears responsibility for the
failure. In this sense, a person is not at fault when his diligent efforts to perform
an act are thwarted, for example, by the conduct of another or by happenstance.”
W illiam s, 529 U.S. at 432.
-4-
It says Barkell exercised diligence in presenting his hearing request because
he followed established procedures (the Calene decision 8 ) when he requested an
evidentiary hearing. But the W yoming Supreme Court, relying on one of its
subsequent cases, held otherwise. Under W yoming case law Barkell’s petition was
insufficient because he failed to make the substantial factual showing required to
obtain such a hearing. 9
The majority clearly thinks he made an adequate showing, but rather than
face the issue head-on (with the attendant requirement of demonstrating the
W yoming decision was contrary to or an unreasonable application of United
States Supreme Court precedent) it disguises a substantive disagreement as a
diligence inquiry. 10 It is fair, then, to ask how diligence should be measured in
8
Calene v State, 846 P2d 679 (W yo. 1993).
9
The W yoming Supreme Court specifically refused to apply Calene to
Barkell’s claim, holding that the issue of sufficiency was controlled by its later
decision in Griswold v. State, 994 P.2d 920 (W yo. 1999). Barkell, 55 P.3d at
1245.
10
For state courts to have their rightful opportunity to
adjudicate federal rights, the prisoner must be diligent in
developing the record and presenting, if possible, all
claims of constitutional error. If the prisoner fails to do
so, himself or herself contributing to the absence of a
full and fair adjudication in state court. §2254(e)(2)
prohibits an evidentiary hearing to develop the relevant
claims in federal court, unless the statute’s other
stringent requirements [cause and prejudice] are met.
W illiams, 529 U.S. at 437.
-5-
this case. Barkell presented his supporting evidence (he has offered nothing new ),
so the question is procedural compliance. W hile conceding that “[n]ot complying
with established requirements w ould ordinarily constitute the fault necessary to
impose the strict limitations of § 2254(e)(2) on the opportunity for a federal
evidentiary hearing,” the majority concludes, “[i]n our view , M r. Barkell’s efforts
complied with a reasonable (although apparently incorrect) interpretation of the
mandates of W yoming law as it stood before his appeal.” (M ajority Op. at 20-21.)
In other words, the majority is free to decide, in spite of the W yoming Supreme
Court, what kind of showing W yoming procedure required for an evidentiary
hearing at the time Barkell made his request. I do not see how that is consonant
with W illiam s, 529 U.S. at 437 (“Diligence will require in the usual case that the
prisoner, at a minimum, seek an evidentiary hearing in state court in the manner
prescribed by state law.” (emphasis added)).
Contrary to the majority’s suggestion, no procedural bar prevented or
discouraged Barkell from making a sufficient showing. He was free to present
whatever he thought appropriate. The question is not whether he was diligent in
identifying and presenting facts justifying an evidentiary hearing, but whether his
efforts were adequate. The W yoming Supreme Court said “no,” the majority says
“yes.” Assuming the majority is correct and the W yoming Supreme Court erred,
AEDPA deference is still required. The state decision must be unreasonable, not
merely incorrect. William s, 529 U.S. at 411 (“[A] federal habeas court may not
-6-
issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.”). 11
I am not prepared to say the W yoming Supreme Court was wrong, let alone
unreasonable.
The majority says Barkell’s efforts, while unsuccessful, were reasonable
under existing standards. It thus implies that the W yoming Supreme Court
changed the sufficient showing rules in this case and without adequate notice.
Specifically it says the Calene court relied upon an unsworn letter to justify a
remand for an evidentiary hearing but Barkell was denied a hearing because his
factual recitals were not sworn. The majority assumes that was the basis for
denying a hearing to Barkell (the W yoming Supreme Court said no such thing).
But crediting the majority’s assumption does not change the result. In Calene the
correct procedure for presenting ineffective assistance of counsel claims was
definitively explained for the first time. In that watershed decision the W yoming
Supreme Court ordered a remand for an evidentiary hearing based upon Calene’s
unsworn letter. But it also laid out for future cases the threshold requirement for
obtaining such a hearing saying, “a motion for remand should be made and
11
Barkell was represented by appellate counsel (who was not his trial
attorney). If a more robust showing was required (as the W yoming Supreme
Court held) his appellate counsel may have been inadequate. As I explain later,
that can be explored in state post conviction proceedings, which have not been
exhausted.
-7-
appropriately supported by contentions defining and supporting any
ineffectiveness claim in detail and supported, as may be appropriate, by affidavit
sufficient to establish substantially [sic].” Calene, 846 P.2d at 692. The Griswold
case, which the W yoming Supreme Court cited in denying Barkell’s request for a
remand, is no more or less demanding. In Griswold the court said:
W e denied his M otion for Partial Remand, finding that Grisw old
failed to provide a substantial factual basis for his claim. M oreover,
in his appellate brief, Grisw old provides no facts or arguments in
support of this assertion. W e have consistently held that we will not
consider claims unsupported by cogent argument or pertinent
authority. M adrid v. State, 910 P.2d 1340, 1347 (W yo.1996).
Griswold, 994 P.2d at 930-31.
The W yoming Supreme Court has not changed the rules, let alone done so
without notice. It gave Calene a break (ostensibly because he was a pioneer on the
issue) but, in doing so, it also announced a demanding rule for future cases
(detailed motion supported, as appropriate, by affidavit). Subsequent W yoming
decisions do not suggest the affidavit rule has been ignored or relaxed.
In his quest for a hearing on his claim of ineffectiveness of trial counsel
Barkell enjoyed the services of appellate counsel who was not involved in his trial.
Barkell’s appellate counsel is experienced and well aware of the showing required
for a remand to the state district court for an evidentiary hearing on trial counsel
ineffectiveness. The majority correctly observes that W yoming requires
ineffectiveness of trial counsel to be raised on direct appeal. (M ajority Op. at 18-
-8-
19.) But that rule does not apply to ineffective appellate counsel. If appellate
counsel was ineffective Barkell has another remedy. He can petition for post
conviction relief in the state district court. The relevant statute provides:
(a) A claim under this act is procedurally barred and no court has
jurisdiction to decide the claim if the claim:
(I) Could have been raised but was not raised in a direct appeal
from the proceeding which resulted in the petitioner's
conviction;
(ii) W as not raised in the original or an amendment to the
original petition under this act; or
(iii) W as decided on its merits or on procedural grounds in any
previous proceeding which has become final.
(b) Notwithstanding paragraph (a)(I) of this section, a court may hear
a petition if:
(I) The petitioner sets forth facts supported by affidavits or
other credible evidence which was not known or reasonably
available to him at the time of a direct appeal; or
(ii) The court makes a finding that the petitioner was
denied constitutionally effective assistance of counsel on
his direct appeal. This finding may be reviewed by the
supreme court together with any further action of the
district court taken on the petition.
(c) This act does not apply to claims of error or denial of rights in any
proceeding:
(I) For the revocation of probation or parole;
(ii) Provided by statute or court rule for new trial, sentence
reduction, sentence correction or other post-verdict motion.
-9-
(d) No petition under this act shall be allowed if filed more than five
(5) years after the judgment of conviction was entered.
W yo. Stat. § 7-14-103 (1977) (emphasis added.)
Barkell has not exhausted his potential claim of ineffective assistance of appellate
counsel.
AEDPA requires deference to the W yoming Supreme Court in this case. Its
decision was not contrary to or an unreasonable application of federal law as
determined by the United States Supreme Court. W e should affirm the district
court in all respects.
-10-
Barkell v. Crouse
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-11-07
Citations: 468 F.3d 684
Copy Citations