Jim Harris, Jr. v. Ian Wallace ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3717
___________________________
Jim Harris, Jr.
lllllllllllllllllllllPetitioner - Appellant
v.
Ian Wallace
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 23, 2020
Filed: January 5, 2021
____________
Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
____________
KELLY, Circuit Judge.
Jim Harris, Jr. pleaded guilty to one count of first-degree assault in the Circuit
Court of Scott County, Missouri. In 2012, the court imposed a 15-year sentence and
ordered that it run concurrently with Harris’s recently imposed 25-year federal
sentence. However, Harris remains in state custody and currently is receiving credit
only against his state sentence. He will not begin serving his federal sentence until
he has completed his state sentence and is transferred to the custody of the Bureau of
Prisons. As a result, and despite the state court’s order, Harris will serve consecutive,
not concurrent, sentences.
Harris petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. The
district court denied relief, and we granted Harris’s application for a certificate of
appealability on the following issue: whether state trial counsel provided ineffective
assistance by advising Harris that his state prison term would run concurrently with
his federal prison term.
I.
In March 2010, Harris was charged with first-degree assault, armed criminal
action, and first-degree robbery, and he was taken into state custody. A month later,
Harris was transferred to federal custody on a writ of habeas corpus ad prosequendum
to face a federal indictment on three counts unrelated to the state charges. See Harris
v. United States, No. 1:19 CV 00053 SNLJ, 2020 WL 2840001, at *1 (E.D. Mo. June
1, 2020) (noting Harris was charged with interference with commerce by threat or
violence, possession of a firearm in furtherance of a crime of violence, and being a
convicted felon in possession of ammunition). On December 9, 2011, before his state
case was resolved, Harris pleaded guilty to all three federal charges. See id. at *2–4.
On May 29, 2012, the federal district court sentenced him to 300 months (25 years)
in prison.1 See id. at *6. The district court was silent as to whether the sentence
would run concurrently with any state sentence later imposed.2
1
Harris was later resentenced to a term of 183 months in light of Johnson v.
United States, 576 U.S. 591 (2015). See Harris, 2020 WL 2840001, at *7.
2
Harris’s federal sentence therefore presumptively ran consecutively with his
yet-to-be-imposed state sentence. See 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders
that the terms are to run concurrently.”); Setser v. United States, 566 U.S. 231, 236
(2012) (affirming district courts’ discretion to select whether a federal sentence
-2-
Harris returned to state custody. His state defense counsel (Plea Counsel)
asked the prosecutor to dismiss all state charges in light of his federal conviction and
sentence. The prosecutor refused but countered with a proposal to recommend a 15-
year sentence to run concurrently with his then-25-year federal sentence, so long as
Harris pleaded guilty to the assault charge. With this understanding, Harris entered
an Alford plea3 to first-degree assault on July 12, 2012. The state court accepted
Harris’s plea, sentenced him to 15 years in prison “to run concurrent with a federal
sentence,” and dismissed the remaining counts.
Harris remained in state custody, where he continued to serve his state
sentence, but not his federal sentence. See Elwell, 716 F.3d at 481 (“[S]ervice of a
federal sentence generally commences when the United States takes primary
jurisdiction and a prisoner is presented to serve his federal sentence, not when the
United States merely takes physical custody of a prisoner who is subject to another
sovereign’s primary jurisdiction.”); United States v. Hayes, 535 F.3d 907, 910 (8th
Cir. 2008) (“Only the [Bureau of Prisons] has the authority to determine when a
federal sentence commences.”). As a result, the state court’s order that Harris’s state
sentence run concurrently with his federal sentence had no effect because Harris was
not yet serving his federal sentence. See Elwell, 716 F.3d at 481 (“[T]he state court’s
intent regarding concurrent or consecutive sentences is not binding on the federal
courts or the BOP.” (quoting Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir.
2007))); see also 18 U.S.C. § 3585(a) (“A sentence to a term of imprisonment
imposed will run concurrently or consecutively with respect to an anticipated state
sentence that has not yet been imposed); Elwell v. Fisher, 716 F.3d 477, 483–84 (8th
Cir. 2013) (same, and a “district court’s silence . . . requir[es] consecutive sentences
pursuant to § 3584(a)”).
3
Pursuant to an Alford plea, “[a]n individual accused of [a] crime may
voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970).
-3-
commences on the date the defendant is received in custody awaiting transportation
to, or arrives voluntarily to commence service of sentence at, the official detention
facility at which the sentence is to be served.”).
A month after he was sentenced in state court, Harris filed for post-conviction
relief (PCR) under Missouri Supreme Court Rule 24.035.4 Represented by post-
conviction counsel (PCR Counsel), Harris alleged that Plea Counsel provided
ineffective assistance by (1) failing to adequately communicate with him during the
pre-trial stage concerning the investigation and defense of his case; and (2) failing to
adequately explain the consequences of his plea agreement, namely that he waived
his right to appeal his conviction and “the amount of his sentence he was to serve.”
He did not include an allegation that Plea Counsel was ineffective for advising him
that his federal and state sentences would run concurrently if he accepted the state’s
plea offer. The PCR court held an evidentiary hearing, at which Plea Counsel
testified in part:
I am never in favor of having a client plead to a large sentence. I
shouldn’t say never in favor. I never like it. But the decision whether
to plead guilty or not guilty is always of the client’s decision. That was
a decision he made. It was a choice he made. In light of the fact he was
already serving a 25-year sentence, which would completely swallow
the 15-year sentence.
4
Rule 24.035 proceedings permit a “person convicted of a felony on a plea of
guilty” to seek relief on a claim that “the conviction or sentence imposed violates the
constitution and laws of [Missouri] or the constitution of the United States, including
claims of ineffective assistance of trial and appellate counsel.” Mo. Sup. Ct. R.
24.035(a). Rule 24.035 “has the purpose of providing a prompt review of any
deficiency in [a state felony] judgment or sentence.” Swallow v. State, 398 S.W.3d
1, 4 (Mo. banc 2013); see also Dorris v. State, 360 S.W.3d 260, 269 (Mo. banc 2012)
(noting Rule 24.035 motions represent a “collateral attack on a final judgment of a
court” (quoting White v. State, 939 S.W.2d 887, 893 (Mo. banc 1997))).
-4-
(emphasis added). The PCR court denied Harris’s motion for post-conviction relief.
Harris, represented by new PCR appellate counsel, appealed. On appeal, Harris
argued that PCR Counsel was ineffective for failing to include a claim in his Rule
24.035 proceedings that Plea Counsel was ineffective for advising Harris that his state
and federal sentences would run concurrently. The Missouri Court of Appeals
concluded that because this allegation was not raised in the initial Rule 24.035
motion, it was not reviewable on appeal, and affirmed the denial of post-conviction
relief.
Less than a year later, Harris filed a timely pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. The petition listed five grounds for relief, only one
of which is before us on appeal. In his first ground for relief, titled “Plea Counsel
Ineffective,” Harris offered several facts in support of his claim. In the space
provided on the habeas form, Harris alleged that Plea Counsel assured him, before he
agreed to plead guilty in his federal case, that his state charges would be dropped if
he received a lengthy federal sentence. He claimed that this assurance “caused him
to plead guilty to 25 yrs. in [the Federal Bureau of Prisons], then had to face the State
Charges, which resulted in 15 yrs. [in Missouri custody].” And in a handwritten
attachment to the habeas form, Harris alleged the following:
Plea Counsel was also ineffective for causing me to believe that my 25
year federal sentence would swallow up the 15 year state sentence if and
when the judge ran the state conviction concurrent with the federal
sentence. I thought I would be sent to the FBOP, and the 15 years
would be swallowed up, as she stated on the record, but this this [sic]
happen either. Plea Counsel was ineffective.
The district court construed Harris’s first claim as “plea counsel was ineffective
because counsel allegedly told [Harris] that if he received a large sentence on federal
charges, the State agreed to drop the state charges against him.” The court denied
-5-
Harris’s petition without a hearing, finding the claim procedurally defaulted and, in
the alternative, meritless. It did not address Harris’s claim regarding Plea Counsel’s
advice on the issue of concurrent sentences.
Harris timely appealed, and we granted a certificate of appealability on
whether Plea Counsel “was ineffective by advising [Harris] that his state prison term
would run concurrently with his federal prison term.” See 28 U.S.C. § 2253(c)(3)
(requiring the certificate of appealability to indicate the “specific issue or issues” for
appeal); see also Carter v. Hopkins, 151 F.3d 872, 874 (8th Cir. 1998) (“[A]ppellate
review is limited to the issues specified in the certificate of appealability.”). We have
jurisdiction under 28 U.S.C. § 1291.
II.
When reviewing the denial of a § 2254 habeas petition, “we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” Stephen
v. Smith, 963 F.3d 795, 799 (8th Cir. 2020). We review a district court’s finding of
procedural default de novo. See Murphy v. King, 652 F.3d 845, 848 (8th Cir. 2011).
A.
To begin, the State argues that Harris did not properly plead the claim on which
we granted a certificate of appealability. According to the State, we need go no
further than this to affirm the dismissal of Harris’s petition for habeas relief.
Section 2254 allows petitioners to challenge the lawfulness of their confine-
ment by demonstrating their custody is in “violation of the Constitution or laws or
-6-
treaties of the United States.”5 28 U.S.C. § 2254(a); see Jones v. Jerrison, 20 F.3d
849, 853 (8th Cir. 1994). A properly filed petition must, among other things, “specify
all the grounds for relief available to the petitioner” and “state the facts supporting
each ground.” Rule 2(c)(1)–(2), Rules Governing Section 2254 Cases in the United
States District Courts; see Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990).
“[A] petition filed by a pro se petitioner should be ‘interpreted liberally
and . . . should be construed to encompass any allegation stating federal relief.’”
Jones, 20 F.3d at 853 (quoting White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976));
see Thompson v. Mo. Bd. of Parole, 929 F.2d 396, 399 (8th Cir. 1991) (giving liberal
construction to pro se habeas petition to find the petitioner adequately pleaded claims
for relief).
Harris sufficiently pleaded the claim at issue. While all the supporting facts are
not written on the habeas form, they are stated in the attachment Harris included with
his petition. Between the habeas form and the attachment, which comprised a single
filing, Harris alleged sufficient facts to apprise the district court and the State of a
distinct basis for his claim—that Plea Counsel advised that his 25-year federal
sentence would “swallow” up any state sentence he would receive for pleading guilty
to first-degree assault. The allegations in the habeas petition give adequate notice of
the substance of Harris’s claim and of the type of evidence that could be expected to
be developed as the case progressed. The claim was properly presented in Harris’s
petition. See Jones, 20 F.3d at 853 (“A district court is obligated to analyze all
alleged facts to determine whether they state a federal claim.”).
5
“[T]he purpose of federal habeas corpus is to ensure that state convictions
comply with the federal law in existence at the time the conviction became final.”
Sawyer v. Smith, 497 U.S. 227, 234 (1990); see also Preiser v. Rodriguez, 411 U.S.
475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.”).
-7-
B.
In the alternative, the State argues that even if properly pleaded, the claim at
issue is nevertheless barred as procedurally defaulted. Generally, under the doctrine
of procedural default, a federal court may not review claims that a habeas petitioner
has defaulted in state court “pursuant to an independent and adequate state procedural
rule.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Martinez v. Ryan, 566 U.S.
1, 9 (2012) (“[A] federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear because the prisoner failed
to abide by a state procedural rule.”). The parties do not dispute that the Missouri
Court of Appeals denied this claim on procedural grounds because it was raised for
the first time on appeal from the denial of Harris’s PCR action. See Garrison v. State,
400 S.W.3d 826, 827 (Mo. App. 2013) (declining to consider ineffective assistance
of counsel claim raised for the first time on appeal from a PCR action because it “was
never presented to the motion court, [which] was not required to and did not make
any findings of fact or conclusions of law related to it”). They disagree, however, on
whether the court may nevertheless review the claim because it satisfies the Martinez
exception to procedural default.
A state prisoner can obtain federal review of a claim for habeas relief, even
though it has been procedurally defaulted, by “demonstrat[ing] cause for the default
and actual prejudice as a result of the alleged violation of federal law.”6 Coleman,
501 U.S. at 750. Coleman established, however, that “ineffective assistance of
counsel during state post-conviction proceedings cannot serve as cause to excuse
6
A prisoner can also obtain federal review of a procedurally defaulted habeas
claim by “demonstrat[ing] that failure to consider the claim[] will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
-8-
factual or procedural default.” Wooten v. Norris, 578 F.3d 767, 778 (8th Cir. 2009)
(emphasis added). Martinez created a narrow exception to that rule where:
(1) the claim of ineffective assistance of trial counsel was a “substantial”
claim; (2) the “cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review proceeding; and
(3) the state collateral review proceeding was the “initial” review
proceeding with respect to the “ineffective-assistance-of-trial-counsel
claim.”
Kemp v. Kelley, 924 F.3d 489, 499 (8th Cir. 2019) (quoting Dansby v. Hobbs, 766
F.3d 809, 834 (8th Cir. 2014)); see Martinez, 566 U.S. at 14. Missouri “prevent[s]
individuals from pursuing claims of ineffective assistance of trial counsel on direct
appeal,” requiring instead that they make such claims in a post-conviction, “initial-
review collateral proceeding.” Franklin v. Hawley, 879 F.3d 307, 312 (8th Cir.
2018). Harris’s claim thus satisfies the third Martinez requirement.
To overcome procedural default, Harris must also show that (1) his claim of
ineffective assistance of Plea Counsel is “substantial” and (2) the “cause” for the
default was that PCR Counsel was ineffective during the initial-review collateral
proceeding. To show an underlying claim is substantial, “the prisoner must
demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14 (citing Miller-
El v. Cockrell, 537 U.S. 322 (2003)); see also Slocum v. Kelley, 854 F.3d 524, 532
(8th Cir. 2017) (“To prove that his ineffective-assistance claims are substantial,
[petitioner] must show that his counsel was deficient and that his counsel’s deficient
performance prejudiced him.”). At the least, this requires the petitioner to demon-
strate that the issue—in this case, whether Plea Counsel was ineffective under
Strickland v. Washington, 466 U.S. 668 (1984)—“was debatable among jurists of
reason.” Miller-El, 537 U.S. at 336. As to “cause,” a prisoner also must demonstrate
that counsel during the state collateral review proceeding—in this case, PCR
Counsel—was ineffective under Strickland. Martinez, 566 U.S. at 14.
-9-
Because the district court did not recognize Harris’s claim, it never reached the
issue of procedural default or determined whether the Martinez exception applies.
Cf. Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013) (“Failure to consider a
lawyer’s ‘ineffectiveness’ during an initial-review collateral proceeding as a potential
‘cause’ for excusing a procedural default will deprive the defendant of any
opportunity at all for review of an ineffective-assistance-of-trial-counsel claim.”
(quoting Trevino v. Thaler, 569 U.S. 413, 428 (2013))). As a result, we remand for
the district court to hold an evidentiary hearing to consider these matters in the first
instance.7 See id. at 853–54 (remanding “potentially meritorious” claims of
ineffective assistance of counsel to the district court to conduct evidentiary hearings
to determine whether procedural default is excused). If the district court determines
that procedural default is excused for Harris’s claim, it should proceed to the question
of whether the claim merits habeas relief.
III.
We vacate the district court’s dismissal of Harris’s ineffective assistance of
counsel claim, and we remand for further proceedings consistent with this opinion.
______________________________
7
We note that Plea Counsel testified at the Rule 24.035 proceedings, but she
was not questioned directly about her advice, if any, to Harris concerning whether the
state and federal sentences would run concurrently because the issue was not raised
to the PCR court—recall that Harris argues its omission was due to the ineffective
assistance of PCR Counsel. Additionally, no court has yet heard from PCR Counsel,
whose testimony is critical to determine whether procedural default is excused under
Martinez.
-10-