Ellis v. Gibson , 56 F. App'x 858 ( 2003 )


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  •                                                                                  F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 3 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    JERRY LEON ELLIS, JR.,
    Petitioner-Appellant,
    v.
    MIKE MULLIN, Warden of the                                    No. 01-6334
    Oklahoma State Penitentiary,                           (D.C. No. CIV-97-1117-T)
    (W.D. of Okla.)
    Respondent-Appellee,
    ORDER AND JUDGMENT*
    Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges.**
    Petitioner Jerry Leon Ellis, Jr. pled guilty to first degree murder in 1983. He did
    not appeal his guilty plea until 1997, when he applied for an appeal out of time in
    Oklahoma state court. The state district court denied his application, and the Oklahoma
    Court of Criminal Appeals affirmed. Ellis filed a petition for a writ of habeas corpus in
    federal district court. The district court denied the petition. Ellis appealed, and we issued
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    **
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1(A)(2). The case is therefore ordered
    submitted without oral argument.
    a certificate of appealability. We have jurisdiction under 
    28 U.S.C. §§ 1291
     & 2253. We
    affirm.
    I.
    In October 1983, Ellis and his co-defendants conspired to rob Leroy Johnson. The
    co-defendants recruited Ellis to perform the robbery because Mr. Johnson did not know
    Ellis and thus would not recognize him. Ellis robbed Mr. Johnson, and shot and killed
    him during the course of the robbery.
    The State of Oklahoma filed an information charging Ellis with first degree
    murder with malice aforethought. The State subsequently filed an amended information,
    charging Ellis and two co-defendants with conspiracy to commit robbery with a
    dangerous weapon in count one, and first degree felony murder in count two. Ellis
    subsequently appeared before the state district court with counsel, waived his preliminary
    hearing, and pled guilty to the murder charge. The State dropped the robbery count, and
    pursuant to a plea agreement, recommended a life sentence. The state court sentenced
    Ellis to life imprisonment.
    Under Oklahoma law, a defendant whose conviction is based on a guilty plea may
    pursue an appeal to the Oklahoma Court of Criminal Appeals (OCCA) by petition for a
    writ of certiorari within ninety days of conviction. 22 Okla. Stat. § 1051. The defendant
    must file an application to withdraw the plea in the trial court within ten days of the
    judgment and sentence. Okla. R. Crim. App. 4.2(A). Ellis did not seek to withdraw his
    2
    plea within ten days nor did he file a petition for certiorari within ninety days.
    According to Ellis, the day after sentencing, he saw an article in the newspaper
    indicating he admitted to being the “triggerman.” Ellis claims this was the first time he
    knew what he had just pled guilty to, and he wanted to appeal immediately. Ellis claims
    he called his attorney several times during the critical ten-day period to appeal from his
    guilty plea, but that his attorney would not accept his collect calls from jail. Ellis also
    presents an affidavit from his mother indicating that Ellis asked her to contact the attorney
    about an appeal, but that she did not do so out of fear that if Ellis went to trial, he would
    get the death penalty. Two years later, Ellis filed two pro se requests with the trial court
    for records from his guilty plea proceedings. The trial court denied both motions.
    Over thirteen years after he pled guilty, Ellis filed for post-conviction relief in
    Oklahoma state district court. A defendant may apply for an appeal out of time by filing a
    petition in the district court and proving he was denied an appeal through no fault of his
    own. Okla R. Crim. App. 2.1(E). Ellis requested an appeal out of time, claiming he was
    denied an appeal through no fault of his own, his guilty plea was involuntary, and his
    counsel was ineffective. The state court denied the application, finding Ellis offered no
    reason for failing to timely appeal his conviction and therefore he waived his appeal
    rights. See 22 Okla. Stat. § 1086. The court also applied laches to bar Ellis’ claims. Ellis
    appealed to the OCCA. The OCCA affirmed, finding Ellis procedurally defaulted all of
    his claims by failing to appeal within ten days of his guilty plea.
    3
    Ellis then petitioned for a writ of habeas corpus in federal district court in
    Oklahoma. The district court denied the petition. The district court found that Ellis’
    claims he was denied his right to appeal and his plea was not knowing and voluntary were
    barred on the independent and adequate state law ground of procedural default. The court
    found Ellis failed to show cause to excuse his default. The court also rejected on the
    merits Ellis’ claim counsel was ineffective. Ellis appealed, and we granted a certificate of
    appealability “as to the issues raised in appellant’s opening brief.”1
    II.
    “In reviewing a denial of a petition for habeas corpus, we review the district
    court’s conclusions of law de novo and accept its findings of fact unless they are clearly
    erroneous.” Hickman v. Spears, 
    160 F.3d 1269
    , 1270 (10th Cir. 1998). “‘When the
    district court’s findings are based merely on a review of the state record, however, we do
    not give them the benefit of the clearly erroneous standard but instead conduct an
    independent review.’” James v. Gibson, 
    211 F.3d 543
    , 550 (10th Cir. 2000) (quoting
    Smallwood v. Gibson, 
    191 F.3d 1257
    , 1264 n.1 (10th Cir. 1999)). Where the defendant is
    1
    Ellis raised six claims in his opening brief: (1) his claims are not procedurally
    barred; (2) he was denied an appeal through no fault of his own; (3) ineffective
    assistance; (4) he established cause for any procedural default because the trial court
    failed to give him records of his plea; (5) the district court should have conducted an
    evidentiary hearing; and (6) the state court’s reliance on laches, and failure to hold an
    evidentiary hearing, are not just errors of state law but raise constitutional issues. We
    resolve claims (1), (2), and (4) in Part III.A. We address claim (3) in Part III.B. Finally,
    we address claims (5) and (6) in footnote 6.
    4
    in custody pursuant to the judgment of a State, federal courts will not grant habeas corpus
    relief with respect to any claim that was adjudicated on the merits in State court
    proceedings unless the adjudication of the claim (1) resulted in a decision that was
    contrary to, or involved an unreasonable application of, clearly established Federal law;
    or (2) resulted in a decision that 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).
    III.
    Ellis first argues the federal district court erred by refusing to consider the merits
    of his claims that he was denied a right to appeal and his plea was not knowing and
    voluntary. Where a state prisoner has defaulted his federal claims in state court pursuant
    to an independent and adequate state procedural rule, federal habeas review of the claims
    is barred unless the prisoner can demonstrate cause for the default and actual prejudice as
    a result of the alleged violation of federal law, or demonstrate that failure to consider the
    claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 
    501 U.S. 722
    , 750 (1991). A state procedural ground is independent if it relies on state law,
    rather than federal law, as the basis for the decision. English v. Cody, 
    146 F.3d 1257
    ,
    1259 (10th Cir. 1998). A state ground is adequate, if the state strictly or regularly follows
    it and applies the rule evenhandedly to all similar claims. Hickman, 
    160 F.3d at 1270
    .
    We repeatedly have held 22 Okla. Stat. § 1086 is an independent and adequate
    state law ground for claims that could have been brought on direct review. See Hale v.
    5
    Gibson, 
    227 F.3d 1298
    , 1331 n.15 (10th Cir. 2000) (listing cases). Nevertheless, Ellis
    argues § 1086 is not an adequate state ground in this case because the state courts used
    circular logic–they rejected his claim that he was denied a direct appeal through no fault
    of his own because he failed to directly appeal the issue. Yet, how could he directly
    appeal the fact he was denied his direct appeal? We read the Oklahoma courts’ decisions
    differently than Ellis. The state district court made the factual determination, based on
    the pleadings and record before the court, that Ellis failed to show he was denied a direct
    appeal through no fault of his own. See 22 Okla. Stat. § 1084. The OCCA affirmed this
    finding. Because Ellis procedurally defaulted these issues in state court, Ellis must
    demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse his
    procedural default.
    A.
    The sentencing court informed Ellis he had a right to appeal from his guilty plea,
    but did not tell Ellis he had a right to appellate counsel and he had a right to the record at
    public expense.2 Ellis contends that because Oklahoma requires its trial courts to inform
    defendants of these rights, the trial court’s failure to do so violates due process and
    constitutes cause excusing his default. Further, Ellis argues the state court’s failure to
    2
    The district court concluded the state trial court’s refusal to provide Ellis records
    of his plea hearing did not constitute cause for his failure to appeal within ten days
    because Ellis did not request the records until two years later. Ellis frames the issue
    slightly different on appeal, arguing that the district court’s failure to inform him of his
    right to the records at the time of his plea constitutes cause.
    6
    establish a factual basis for his guilty plea also constitutes cause.3 The federal district
    court concluded a state court has no constitutional duty to inform a defendant he has
    these rights, nor are state courts constitutionally required to establish a factual basis for
    a guilty plea.4 But none of the cases relied upon by the district court address whether a
    state court violates due process by failing to abide by the state’s own law requiring the
    court to advise the defendant of certain rights or establish a factual basis for the plea.
    Nevertheless, we may affirm the district court on any ground supported by the record.
    United States v. Winningham, 
    140 F.3d 1328
    , 1332 (10th Cir. 1998).
    “A state’s failure to follow its own statutory criminal procedures may, in some
    circumstances, constitute a deprivation of due process.” Martinez v. Romero, 
    626 F.2d 807
    , 810 (10th Cir. 1980). If the state court did not follow its own rules, the error will not
    give rise to habeas relief unless failure to follow the rules also constituted a violation of
    due process guaranteed by the federal constitution. Hicks v. Oklahoma, 
    447 U.S. 343
    ,
    346 (1980) (denial of state statutory right to have jury decide the sentence violated federal
    due process). Even if we assume the state court violated federal due process as Ellis
    3
    At Ellis’ plea hearing, the court asked Ellis if he committed the acts in the
    information, but did not mention what those acts were, nor did Ellis allocute in his own
    words. Ellis now claims the court should have established a factual basis for the plea, and
    if the court had done so, he would not have pled guilty to the facts as alleged by the State
    in the amended information.
    4
    See, e.g., Barber v. United Sates, 
    427 F.2d 70
    , 71 (10th Cir. 1970) (federal court
    need not inform defendant pleading guilty of appeal rights); Freeman v. Page, 
    443 F.2d 493
    , 497 (10th Cir. 1971) (federal rule requiring court to establish a factual basis does not
    apply to States nor does the Constitution mandate state courts to do so).
    7
    argues, Ellis still must show prejudice to excuse his procedural default. Coleman, 
    501 U.S. at 750
    . To show prejudice, Ellis must show actual prejudice resulting from the
    errors of which he complains. United States v. Frady, 
    456 U.S. 152
    , 167-68 (1982).
    “More specifically, a petitioner must demonstrate ‘actual prejudice resulting from the
    alleged constitutional violation.’” Johnson v. Champion, 
    288 F.3d 1215
    , 1227 (10th Cir.
    2002) (quoting Wainwright v. Sykes, 
    433 U.S. 72
    , 84 (1977)).
    Ellis cannot show prejudice with respect to any of these claims. Ellis does not
    explain how the trial court’s failure to advise him of the right to appellate counsel
    affected his ability to appeal by himself in a timely manner. The trial court advised Ellis
    of his right to appeal and the time limit in which to do so, both orally and on the summary
    of facts form. Even if Ellis did not know he had a right to appellate counsel, he made no
    effort to appeal on his own. And he does not explain how the failure to inform him of his
    right to records prevented him from exercising his known right to appeal within ten days.
    Ellis also cannot demonstrate prejudice from the trial court’s failure to establish a
    factual basis for the plea. At his plea hearing, Ellis stated under oath that he had reviewed
    the information with his counsel and that he was pleading guilty to the charges therein.
    The amended information clearly detailed Ellis’ role in the offense, indicating Ellis
    approached the victim’s house alone, robbed and shot him. A general theme throughout
    Ellis’ petition is that his counsel never read him the information or the amended
    information, so he never knew to what he was pleading guilty. His contentions are belied
    8
    by the record. Ellis had the amended information twenty days before he pled guilty. He
    stated under oath counsel had gone over the information with him and that he committed
    the acts charged therein. We may presume defense counsel explained the nature of the
    offense in sufficient detail to give the accused notice of what he is being asked to admit.
    Henderson v. Morgan, 
    426 U.S. 637
    , 647 (1976). Such a presumption is appropriate here,
    where Ellis stated under oath that counsel reviewed the information with him. Although
    Ellis now claims it is unclear from the record which information he pled to, State counsel
    dropped the robbery count at Ellis’ plea hearing. The robbery count was charged only in
    the amended information. We find no prejudice from these alleged errors.
    B.
    Ellis next argues his counsel’s ineffective assistance constitutes cause and
    prejudice excusing his procedural default. “Constitutionally ineffective assistance of
    counsel constitutes ‘cause’ for a procedural default.” Hickman, 
    160 F.3d at 1272
    . Under
    Oklahoma law, Ellis was entitled to effective counsel during the time period available for
    appeal from his guilty plea. 
    Id. at 1272-73
    . Ellis also raises an ineffective assistance
    claim on the merits. We have held that Oklahoma’s procedural rule that ineffective
    assistance must be raised on direct appeal is not an adequate state ground barring federal
    review because the rule does not permit the defendant time to develop facts supporting his
    ineffective assistance claim. Brecheen v. Reynolds, 
    41 F.3d 1343
    , 1364 (10th Cir. 1994).
    Oklahoma’s procedural rule can bar consideration of ineffective assistance claims on
    9
    habeas review in the limited circumstances where trial and appellate counsel differ and
    the ineffectiveness claim can be resolved on the trial record alone. See English, 
    146 F.3d at 1264
    . These circumstances do not apply to Ellis’ case, and thus Ellis’ ineffective
    assistance claim is not procedurally barred. The district court correctly reviewed this
    claim on the merits, as well as considering ineffective assistance as “cause” for Ellis’
    procedural default. Because the same legal standards govern Ellis’ underlying claim of
    ineffective assistance of counsel and his burden to show cause for his state law procedural
    default, we address whether he has shown cause concurrently with the merits of his
    ineffective assistance of counsel claim.
    To prevail on this claim, Ellis must show: (1) that his counsel’s performance fell
    below an objective standard of reasonableness and (2) that the deficient performance was
    prejudicial to his defense. Strickland v. Washington, 
    466 U.S. 668
    , 688, 694 (1984). To
    satisfy the first prong of this test, petitioner must overcome the strong presumption that
    counsel rendered reasonable professional assistance. 
    Id. at 690
    . To satisfy the second
    prong, Ellis must show “there is a reasonable probability that, but for counsel’s deficient
    failure to consult with him about an appeal, he would have timely appealed.” Roe v.
    Flores-Ortega, 
    528 U.S. 470
    , 484 (2000).
    “[C]ounsel has a constitutionally imposed duty to consult with the defendant about
    an appeal when there is reason to think either (1) that a rational defendant would want to
    appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this
    10
    particular defendant reasonably demonstrated to counsel that he was interested in
    appealing.” Roe, 
    528 U.S. at 480
    . In making this determination, we consider all the
    information counsel knew or should have known. 
    Id.
     A “highly relevant factor” in this
    inquiry is whether the defendant pled guilty, because “a guilty plea reduces the scope of
    potentially appealable issues and because such a plea may indicate that the defendant
    seeks an end to judicial proceedings.” 
    Id.
     In cases when the defendant pleads guilty,
    “the court must consider such factors as whether the defendant received the sentence
    bargained for as part of the plea and whether the plea expressly reserved or waived
    some or all appeal rights.” 
    Id.
    First, Ellis argues counsel should have appealed because nonfrivolous grounds for
    appeal existed. He contends the plea was not knowing and voluntary. The record does
    not support this contention. Ellis appeared with counsel, and his parents attended the plea
    hearing. Ellis indicated he was aware of his rights, he had gone over the information with
    his counsel, he was satisfied with counsel’s performance, and he had committed the
    offense charged in the indictment. He filled out and signed a form reflecting this
    information, and was questioned by the state court judge before the court accepted his
    plea. Ellis received the benefit of his plea bargain; the State dropped the robbery charge,
    he was no longer subject to the death penalty, and he received the life sentence he
    anticipated. Under these circumstances, reasonable counsel would conclude Ellis’ plea
    was knowing and voluntary, and that he had no desire to appeal.
    11
    Ellis also contends nonfrivolous grounds to appeal existed because under
    Oklahoma law, the trial court failed to advise him of his appellate rights and failed to
    establish a factual basis for the plea. Assuming Ellis has articulated nonfrivolous grounds
    for appeal, we cannot say counsel was ineffective for not initiating an appeal on these
    grounds under the circumstances. The trial court’s failure to advise Ellis of these rights
    would not have relieved Ellis of a potential death sentence, which he avoided through his
    plea bargain. Counsel was not unreasonable for assuming, absent any indication from
    Ellis, that he wished to retain the benefit of his plea agreement and bring an end to the
    judicial proceedings.5
    Second, Ellis contends he inquired of counsel about his appeal rights. But Ellis’
    own contentions show he never made counsel aware of his desire to appeal. He states
    only that he attempted to call his attorney’s office collect from jail. He does not state that
    5
    The Roe court imagined an example very similar to this case, in which the Court
    indicated the attorney would not be ineffective for failing to consult further with his
    client:
    For example, suppose that a defendant consults with counsel; counsel
    advises the defendant that a guilty plea probably will lead to a 2 year
    sentence; the defendant expresses satisfaction and pleads guilty; the court
    sentences the defendant to 2 years’ imprisonment as expected and informs
    the defendant of his appeal rights; the defendant does not express any
    interest in appealing, and counsel concludes that there are no nonfrivolous
    grounds for appeal. Under these circumstances, it would be difficult to say
    that counsel is “professionally unreasonable,” as a constitutional matter, in
    not consulting with such a defendant regarding an appeal.
    
    Id. at 479
     (internal citation omitted).
    12
    he left messages indicating he wanted to appeal. In fact, Ellis has not included his own
    affidavit supporting any of his allegations. And his mother states she did not contact
    counsel. Counsel could not be ineffective for failing to initiate an appeal where he had no
    indication Ellis wanted to appeal. Had Ellis left a message that he wanted to appeal, for
    example, we would have a different situation. When we consider whether an attorney
    was ineffective, our focus is on what the attorney knew at the time. Ellis has failed to
    demonstrate that his attorney had any knowledge at all of his desire for an appeal, so his
    attorney cannot be deemed ineffective. We decline to adopt a rule that counsel is per se
    ineffective for failing to return a defendant’s call during the time limit for appeals
    following a guilty plea where the defendant has made no indication he wants to appeal.
    See Roe, 
    528 U.S. at 479-81
     (generally rejecting use of per se rules in evaluating
    counsel’s performance as inconsistent with Strickland). Because counsel was not
    ineffective, Ellis has not shown cause for his default based on counsel’s performance.
    Further, the district court correctly denied Ellis’ ineffective assistance claim on the merits.
    C.
    Because Ellis has failed to show cause and prejudice, he cannot overcome his
    procedural default unless refusing to consider his claims would result in a fundamental
    miscarriage of justice. To show a fundamental miscarriage of justice, Ellis must make a
    “colorable showing of factual innocence.” Hickman, 
    160 F.3d at 1275
     (internal quotation
    and citation omitted). Ellis offers no evidence tending to show his innocence. He simply
    13
    argues that he pled guilty to a crime he did not commit to avoid the death penalty. By
    Ellis’ own argument throughout his brief, however, he thought he was pleading guilty to
    the first information, as opposed to the amended information. The first information
    alleged murder in the first degree with malice aforethought. Further, at his plea hearing
    he stated under oath that he committed the acts alleged in the information, which he stated
    he had gone over with his attorney. The amended information clearly alleges Ellis
    approached Johnson’s house alone, robbed, and shot the victim. Ellis pled “guilty,” not
    nolo contendre. He has not made a colorable claim of factual innocence. Thus, the
    district court correctly held Ellis procedurally defaulted the claims he was denied a right
    to appeal and his plea was not knowing and voluntary.6
    6
    Ellis also claims the federal district court erred by failing to hold an evidentiary
    hearing on his ineffective assistance of counsel claim. Ellis is not entitled to an
    evidentiary hearing unless he meets his burden of alleging facts which, if proved, would
    entitle him to relief. Brecheen, 
    41 F.3d at 1362
    . Assuming Ellis’ allegations are true, he
    cannot demonstrate counsel was ineffective, as discussed above. The federal district
    court did not need an evidentiary hearing to make this determination.
    Finally, Ellis argues the state court erred by applying laches to his case, and the
    state court should have conducted an evidentiary hearing to determine whether he was
    denied an appeal through no fault of his own. The federal district court concluded Ellis
    stated no cognizable federal claim with respect to these issues. We agree. Ellis identifies
    no federal claim relating to the court’s application of state laches law to his case. As to
    the evidentiary hearing, Oklahoma law requires a state court to hold an evidentiary
    hearing to determine if the defendant was denied an appeal through no fault of his own
    only “[i]f the application cannot be disposed of on the pleadings and record, or there
    exists a material issue of fact.” 
    Okla. Stat. Ann. tit. 22, § 1084
    ; Fox v. State, 
    880 P.2d 383
    , 385 (Okla. Crim. App. 1994) (where court can address application for post-
    conviction relief on the pleadings and record, or where a material issue of fact does not
    exist, petitioner has no statutory or constitutional right to an evidentiary hearing). The
    state courts followed their own procedures, and thus did not violate due process, by
    14
    AFFIRMED.
    Entered for the Court,
    Bobby R. Baldock
    Circuit Judge
    deciding the matter on the basis of the records and pleadings.
    15