Rawle v. Wyoming Department of Corrections State Penitentiary Warden
Rawle v. Wyoming Department of Corrections State Penitentiary Warden
Opinion of the Court
ORDER DENYING CERTIFICATE OF APPEALABILITY
Brian Dewayne Rawle, a Wyoming state prisoner, seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his application for a writ of habe-as corpus pursuant to 28 U.S.C. § 2254. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and conclude that Mr. Rawle has failed to make a substantial showing of the denial of a constitutional right. Thus, we deny the request for a COA and dismiss the appeal.
BACKGROUND
In April 2005, a jury convicted Mr. Rawle of felony murder, attempted aggra
In June 2008, Mr. Rawle filed a petition for post-conviction relief in Wyoming state court. Mr. Rawle argued that he was deprived of his right to the effective assistance of trial counsel, pursuant to the Sixth and Fourteenth Amendments to the U.S. Constitution, because his counsel had not investigated whether he had any mental deficiencies and had not advised him properly regarding a possible plea agreement. Mr. Rawle asserted that if his trial counsel had obtained a neuro-psychological evaluation, counsel could have shown that Mr. Rawle lacked the requisite intent to commit attempted aggravated robbery.
In July 2008, the state district court denied the petition for post-conviction relief. The state district court held that the ineffective-assistance-of-trial-counsel claim was procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(i)
On September 3, 2008, Mr. Rawle filed an application for a writ of habeas corpus in federal district court. As in the post-conviction proceeding in state court, Mr. Rawle claimed that he was denied his constitutional right to the effective assistance of trial counsel. In a motion to dismiss, the State of Wyoming raised the affirmative defense of an independent and adequate state procedural bar against this claim. The district court held that Mr. Rawle had not exhausted his ineffective-assistance-of-trial-counsel claim in state court and that this claim was procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(1). Even if this claim were not procedurally barred, the district court concluded that Mr. Rawle would not be entitled to relief because he had not demonstrated that his trial counsel was constitutionally deficient or that his trial counsel’s performance resulted in prejudice. The district court dismissed the action and declined to grant a COA. Mr. Rawle filed a timely notice of appeal.
DISCUSSION
“A COA is a jurisdictional pre-requisite to our review.” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). We
On appeal, Mr. Rawle requests a COA to challenge the denial of his application for a writ of habeas corpus. He contends that the district court erred in holding that Wyo. Stat. Ann. § 7-14-103 proeedurally barred his ineffective-assistance-of-counsel claim. Assuming, arguendo, that the Wyoming statute does not proeedurally bar this claim, Mr. Rawle also argues that he was deprived of his constitutional right to the effective assistance of trial counsel because his attorney failed to investigate his mental deficiencies and to advise him properly regarding a possible plea agreement.
1. Procedural Bar
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “strictly limits a federal court’s ability to consider issues on habeas review that the state eourt deemed proeedurally barred.” Hammon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006). Under AEDPA, a court will not consider “[cjlaims that are defaulted in state court on adequate and independent state procedural grounds ..., unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Fairchild v. Workman, 579 F.3d 1134, 1141 (10th Cir. 2009) (internal quotation marks omitted). “A state procedural default is ‘independent’ if it relies on state law, rather than federal law.” Id. (internal quotation marks omitted). “A state procedural default is ‘adequate’ if it is firmly established and regularly followed.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008), cert. denied, — U.S.-, 130 S.Ct. 238, 175 L.Ed.2d 163 (2009); accord Fairchild, 579 F.3d at 1141 (“A state ground will be considered adequate only if it is strictly or regularly followed and applied evenhandedly to all similar claims.” (internal quotation marks omitted)).
Under Wyo. Stat. Ann. § 7-14-103(a)(i), a claim “is proeedurally barred” if it “[cjould have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner’s conviction.” As discussed supra, Mr. Rawle neglected to raise his ineffective-assistance-of-trial-counsel claim on direct appeal. The state court subsequently held in post-conviction proceedings that this claim was proeedurally barred.
Mr. Rawle does not contest on appeal the district court’s determination that his ineffective-assistance claim is proeedurally barred on an independent and adequate state-law ground.
Specifically, we conclude that Mr. Rawle has abandoned the cause argument that he raised in the district court and waived the cause argument that he now presents to us. Courts have found the existence of “cause” when the habeas petitioner had the same counsel at trial and on appeal. Hopkinson v. Shillinger, 866 F.2d 1185, 1204 n. 12 (10th Cir. 1989), aff'd, 888 F.2d 1286 (10th Cir. 1989) (en banc), overruled on other grounds by Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). In the district court, Mr.. Rawle contended that he had the same trial and appellate counsel. However, he now concedes that “different attorneys handled the trial and direct appeal,” Aplt. Br. at 28. Consequently, Mr.. Rawle has abandoned the cause argument that he made in the district court.
Before us, Mr. Rawle’s argument for cause centers on the view that nothing in the cold trial record would have indicated to the appellate counsel that the trial counsel had not investigated the defendant’s mental deficiencies. See id. at 26 (“There is nothing in the cold record that would have alerted [appellate counsel] to this deficiency and the failure of [trial counsel] to investigate Rawle’s mental state.”). He therefore reasons that “trial counsel’s error in this case could only be discovered in post-conviction,” and not on direct appeal. Id.-, see id. at 28 (“[T]he first time it was even possible for Rawle to raise ineffectiveness of trial counsel was in his' state
In sum, Mr. Rawle’s arguments fail to demonstrate “cause” for the procedural default in Wyoming state court of his ineffective-assistance-of-trial-counsel claim. Therefore, we conclude that reasonable jurists could not debate the correctness of the district court’s resolution of Mr. Rawle’s ineffective-assistance-of-trial-counsel claim — viz., the court decision to dismiss the claim as procedurally barred.
II. Ineffective Assistance of Trial Counsel
Mr. Rawle contends that he was deprived of his constitutional right to the effective assistance of trial counsel because his attorney failed to investigate his mental deficiencies and to advise him properly regarding the plea agreement. We reach the merits of this ineffective-assistance-of-counsel claim only in the absence of a procedural bar. Hawkins v. Mullin, 291 F.3d 658, 670 (10th Cir. 2002). Because Mr. Rawle fails to overcome the procedural bar, we do not reach the merits of this claim.
For the foregoing reasons, we DENY Mr. Rawle’s application for a COA and DISMISS his appeal.
This Order is not binding' precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consis- • tent with Federal Rule of Appellate Procedure 32.1 and Tendí Circuit Rule 32.1. After examining the briefs and the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
. Wyo. Stat. Ann. § 7-14-103 provides, in pertinent part, as follows:
(a) A claim under [Wyo. Stat. Ann. § 7-14-101 through § 7-14-108] 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;
(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.
. Before the district court, Mr. Rawle asserted that Wyo. Stat. Ann. § 7-14-103 is not an adequate state procedural ground. However, we need not address this issue on appeal because Mr. Rawle failed to raise it in his opening brief. Fed. R.App. P. 28(a)(9)(A) (requiring an appellant's opening brief to identify "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) ("[W]e routinely have declined to consider arguments that are not
. Mr. Rawle applies the incorrect legal standard to demonstrate "cause and prejudice.” In particular, Mr. Rawle applies the framework for determining whether a state procedural bar to an ineffective-assistance-of-counsel claim is adequate for purposes of federal habeas review. Aplt. Br. at 28 (quoting Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir. 1988)). Mr. Rawle, however, does not challenge the adequacy of Wyoming's procedural bar in his- opening brief; accordingly, the challenge is waived. See supra note 2. Under the adequacy analysis, the "procedural bar will apply only in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone.” Young v. Sirmons, 551 F.3d 942, 956 (10th Cir. 2008) (internal quotation marks omitted) (brackets omitted) (analyzing the procedural bar in a case involving an Oklahoma statute that is analogous to the Wyoming statute), cert. denied, -U.S.-, 130 S.Ct. 272, 175 L.Ed.2d 183 (2009); accord Osborn, 861 F.2d at 623 (applying this framework to the Wyoming statute). Because this legal standard governs whether a state procedural law is "adequate,” see Fairchild, 579 F.3d at 1142-43; Coronado, 517 F.3d at 1215, and not whether there is cause for excusing any default under that state law, Mr. Rawle’s reliance on this standard is misguided.
. This is the only cause argument that Mr. Rawle advances on appeal. Mr. Rawle is represented by counsel; therefore, his appellate filings are not entitled to "the mandated liberal construction afforded to pro se pleadings.” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). Even if he were proceeding pro se, it would not be appropriate for us to "assume the role of advocate” for Mr.-Rawle and put forward arguments that he does not. Id. (internal quotation marks omitted); accord United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) ("[B]ecause Pinson appears pro se, we must construe his arguments liberally; this rule of liberal construction stops, however, at the point at which wé begin to serve as his advocate.”). We note, however, that courts have determined that cause exists when the habeas petitioner alleges that his appellate counsel was constitutionally ineffective, see Murray, 477 U.S. at 489-90, 106 S.Ct. 2639; Banks v. Reynolds, 54 F.3d 1508, 1514-15 (10th Cir. 1995). Yet Mr. Rawle abandoned his ineffective-assistance-of-appellate-counsel argument before the district court. Specifically, he disclaimed any intention of pursuing a claim that appellate counsel was ineffective for failing to raise on appeal an ineffective-assistance-of-trial-counsel claim. See Aplt.App. at 146 ("[W]e’re not alleging ineffective -assistance of appellate counsel.”); id. at 183 (agreeing that the ineffective-assistance-of-appellate-counsel claim has no merit). Therefore, he cannot avail himself of that basis for cause.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.