996 F.

2d 311
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Bruce Donnell THOMPSON, Petitioner-Appellant

v.
Ron CHAMPION; Attorney General of the State of Oklahoma,
Respondents-Appellees.
No. 93-6035.

United States Court of Appeals, Tenth Circuit.

May 19, 1993.

Before TACHA, BALDOCK and KELLY, Circuit Judges.*

ORDER AND JUDGMENT**
BALDOCK, Circuit Judge.

Petitioner Bruce Donnell Thompson appeals the district court's dismissal

without prejudice of his petition for writ of habeas corpus. 28 U.S.C. 2254.
We reverse and remand for further findings.

Petitioner pleaded guilty in Oklahoma state court to numerous charges ranging

from rape to unauthorized use of an automobile and was sentenced to a total of
seventy-five years imprisonment. See State v. Thompson, Nos. 89-2771, 892772, 89-2796, 89-2883 (Okla.County Dist.Ct. Nov. 2, 1989). Petitioner did not
move to withdraw his guilty plea and did not appeal his sentence. Petitioner did,
however, apply for state post-conviction relief, see Okla.Stat.Ann. tit. 22,
1080-1088 (West 1986) (Oklahoma Post-Conviction Procedure Act), claiming
that he received constitutionally ineffective assistance of counsel.1 The state
district court denied Petitioner's application, and the Oklahoma Court of
Criminal Appeals affirmed, stating that Petitioner "failed to show entitlement to

relief in a post-conviction proceeding in that he has not raised any issues that
could not have been raised in an appeal" and that he had "not provided
sufficient reasons for his failure to seek to withdraw his guilty pleas and to
appeal his conviction."2 See Thompson v. State, No. PC-92-333
(Okla.Ct.Crim.App. July 23, 1992) (Order Affirming Denial of Post-Conviction
Relief).
3

Petitioner then brought the instant petition raising the identical claims of
ineffective assistance of counsel. See supra notes 1 and 2. The district court
referred the petition to the magistrate judge. See 28 U.S.C. 636(B)(1)(B).
Respondents moved to dismiss the petition as procedurally barred claiming that
Petitioner had procedurally defaulted on his claims in state court by not raising
his claims of ineffective assistance of counsel on direct appeal. The magistrate
judge found that Petitioner had procedurally defaulted on his claims in state
court and that Petitioner's claims were refuted by the record.3 The magistrate
judge recommended that the petition be dismissed without prejudice,4 and that
Petitioner be denied a certificate of probable cause and leave to proceed in
forma pauperis on appeal. The district court, having been presented with no
objections,5 dismissed the petition without prejudice and denied Petitioner
leave to proceed in forma pauperis on appeal.

The procedural default rule is derived from the "adequate and independent state
ground" doctrine. Harris v. Reed, 489 U.S. 255, 260 (1989); Wainwright v.
Sykes, 433 U.S. 72, 81-82 (1977). Federal courts will not review the lawfulness
of a person's custody by way of a petition for a writ of habeas corpus when that
custody is pursuant to a judgment which rests on independent and adequate
state grounds. Coleman v. Thompson, 111 S.Ct. 2546, 2554 (1991). Failure to
comply with a state procedural requirement may constitute an independent and
adequate state ground "when a state court declined to address a prisoner's
federal claims because the prisoner had failed to meet a state procedural
requirement." Id. (citations omitted). To determine whether a petitioner's failure
to comply with a state procedural rule constitutes an adequate and independent
state ground which may bar federal habeas review, the federal court must look
to the last reasoned decision of the state court which considered the federal
habeas petitioner's claims. Id. at 2557; Ylst v. Nunnemaker, 111 S.Ct. 2590,
2595 (1991). "[I]f the decision of the last state court to which the petitioner
presented his federal claims fairly appeared to rest primarily on resolution of
those claims, or to be interwoven with those claims, and did not clearly and
expressly rely on an independent and adequate state ground, a federal court may
address the petition." Coleman, 111 S.Ct. at 2557 (footnote omitted).

Here, the Oklahoma Court of Criminal Appeals "clearly and expressly" stated

that its judgment rested on Petitioner's failure to raise his ineffective assistance
of counsel claims on direct appeal. While the state court also addressed the
merits of the claims, its statement that Petitioner "failed to show entitlement to
relief in a post-conviction proceeding in that he has not raised any issues that
could not have been raised in an appeal" is a "plain statement" that its judgment
rests on a state procedural bar, see Andrews v. Deland, 943 F.2d 1162, 1188
(10th Cir.1991), cert. denied, 112 S.Ct. 1213 (1992), and is therefore sufficient
to invoke procedural bar. See Thomas v. Gunter, 962 F.2d 1477, 1484 n. 9
(10th Cir.1992) (finding that state court relied on procedural bar despite state
court's discussion of the merits). Thus, we agree with the magistrate judge that
the state court relied on the state procedural rule as an independent state ground
to deny Petitioner relief.
6

A finding that the last state court decision rejected Petitioner's claims on an
independent state ground does not end the inquiry. The federal court must still
determine whether the independent state ground is in fact adequate by
determining whether the state court has strictly and regularly followed the state
rule. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Even if a
petitioner's failure to comply with a state procedural rule is an adequate and
independent state ground, the petitioner's procedural default is excused if he or
she 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, 111 S.Ct.
at 2565.

Here, the magistrate judge never found that the state procedural rule requiring
ineffective assistance of counsel claims to be brought on direct appeal is an
adequate state ground, nor did the magistrate judge apply the cause and
prejudice standard. Thus, we must remand to the district court to determine the
following: (1) whether Oklahoma's procedural rule requiring ineffective
assistance of counsel claims to be brought on direct appeal is an adequate state
ground; (2) whether Petitioner's third claim of ineffective assistance of counsel,
regarding his counsel's failure to advise him about withdrawing his guilty plea
or taking a direct appeal, constitutes cause for Petitioner's state procedural
default, see supra note 2; and, if it does, (3) whether Petitioner was thereby
prejudiced.6

Finally, the magistrate judge's findings and recommendation, which the district
court adopted, state that Petitioner's claims of ineffective assistance of counsel
are "refuted by the record" and do not overcome the "presumption of reasonable
professional assistance." Petitioner's allegations that his counsel failed to move
to suppress his confession and the victim's identification, and his counsel

erroneously advised him of his potential sentence, and that, but for these
alleged errors, Petitioner would not have pleaded guilty and instead would have
insisted on going to trial are sufficient to state a constitutional claim. See Hill v.
Lockhart, 474 U.S. 52, 56-59 (1985). See also Tollet v. Henderson, 411 U.S.
258, 267 (1973); Garmon v. Lockhart, 938 F.2d 120, 122 (8th Cir.1991). The
entire record in the present proceeding consists of the petition, Respondents'
motion to dismiss and its attachments which includes the Oklahoma Court of
Criminal Appeals' order, Petitioner's state court brief, and the guilty plea
waivers. While we recognize that Petitioner must overcome a "strong
presumption that counsel's conduct falls within the range of reasonable
professional assistance," Strickland v. Washington, 466 U.S. 668, 689 (1984),
the record is simply not sufficiently developed to dismiss Petitioner's claims on
the merits.7
9

Because Petitioner's appeal has "an arguable basis in law or in fact," see Neitzke
v. Williams, 490 U.S. 319, 325 (1989); 28 U.S.C. 1915(d), and he has made a
substantial showing of the denial of a federal right, see Lozada v. Deeds, 111
S.Ct. 860, 861-62 (1991); 28 U.S.C. 2253, petitioner's requests to proceed in
forma pauperis on appeal and for a certificate of probable cause are
GRANTED. The district court's order dismissing the petition without prejudice
is REVERSED and the case is REMANDED to the district court for further
proceedings consistent with this order and judgment.

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 therefore is
ordered submitted without oral argument

**

This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3

Specifically, Petitioner claimed that his counsel was constitutionally ineffective

by failing to move to suppress Petitioner's allegedly involuntary confession and
an allegedly tainted in-court identification by the victim, by failing to advise
Petitioner that his sentences could run consecutively and that he would be
required to serve at least one third of his sentence before being eligible for
parole, and by erroneously advising him that he would be paroled in five years
if he pleaded guilty. Petitioner alleged that had his counsel raised these
defenses, which would have likely succeeded, and/or had his counsel not

erroneously advised him about the length of his sentence, he would not have
pleaded guilty and would have insisted on going to trial
2

Oklahoma requires that ineffective assistance of counsel claims be brought on

direct appeal. See Cartwright v. State, 708 P.2d 592, 594-95
(Okla.Crim.App.1985), cert. denied, 474 U.S. 1073 (1986). Oklahoma courts
will not consider ineffective assistance of counsel claims in an application for
post-conviction relief absent a showing of ineffective assistance of appellate
counsel. See Nguyen v. State, 844, P.2d 176, 178 (Okla.Crim.App.1992)
In addition to his two ineffective assistance of counsel claims which allegedly
led him to plead guilty, see supra note 1, Petitioner alleged that his counsel was
constitutionally ineffective in failing to advise him about withdrawing his guilty
plea or taking a direct appeal and in failing to contact him within the necessary
time period to pursue either of these avenues of relief. This claim was clearly an
attempt to excuse Petitioner's procedural default, and the state court rejected it
by distinguishing Baker v. Kaiser, 929 F.2d 1495 (10th Cir.1991), and stating
that "Petitioner has not established that his counsel was dismissed prior to the
ten day period, and no substitute counsel was appointed, such that he had no
counsel to contact as was the situation in Baker." Without expressing any
opinion on the state court's resolution of this issue, we note that Petitioner has a
constitutional right to effective assistance of counsel concerning his decision
not to appeal, and that ineffective assistance of counsel may constitute cause
excusing Petitioner's procedural default. See Gilbert v. Scott, 941 F.2d 1065,
1068 (10th Cir.1991).

The magistrate judge's findings and recommendation also state that, because
Petitioner failed to respond within fifteen days to Respondent's motion to
dismiss Petitioner's claims as procedurally barred, the motion was deemed
confessed under the local rules. See W.D.Okla.Loc.R. 14(A) (1992). Dismissal
without prejudice for failure to respond to a motion does not serve the interests
of judicial economy, and to the extent the district court actually relied on Local
Rule 14(A) in dismissing the petition without prejudice, we believe that it
abused its discretion. Cf. Meade v. Grubbs, 841 F.2d 1512, 1519-22 (10th
Cir.1988) (dismissal with prejudice of pro se complaint for failing to respond to
a motion to dismiss as required by Local Rule 14(A) of was an abuse of
discretion)

We do not understand why the magistrate judge recommended dismissal

without prejudice. If federal habeas review of Petitioner's claim is barred by his
state procedural default, or if Petitioner's claims are without merit, the petition
should be dismissed with prejudice

Although Petitioner failed to object to the magistrate judge's findings and

recommendations, we cannot invoke our "firm waiver rule," which bars
appellate review when party fails to timely object to a magistrate judge's
findings and recommendation, because the magistrate judge's order here does
not apprise the pro se litigant of these consequences. See Moore v. United
States, 950 F.2d 656, 659 (10th Cir.1991)

The fundamental miscarriage of justice exception to the procedural default rule

does not apply in this case because Petitioner does not assert that he is factually
innocent of the crimes for which he is imprisoned. See Sawyer v. Whitley, 112
S.Ct. 2514, 2518-23 (1992); Gee v. Shillinger, 979 F.2d 176, 178 (10th
Cir.1992)

The magistrate judge could not have relied on the presumption of correctness
that attaches to state court factual findings, see Sumner v. Mata, 449 U.S. 539,
544-45 (1981), because the record does not indicate that Petitioner ever
received a state court hearing on any of his present claims. See 28 U.S.C.
2254(d) (presumption of correctness attaches only if state court findings were
made following hearing)