Filed: Patrick Fisher
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This order and judgment is not binding precedent, except under the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).
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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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