Appeal from the United States District Court for the District of Oregon. D.C. No. CV-92-00376-MFM. Malcolm F. Marsh, District Judge, Presiding.
Before: Stephen Reinhardt, Melvin Brunetti, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Reinhardt; Concurrence and Dissent by Judge Fernandez.
REINHARDT, Circuit Judge:
Donald Ray Wells, an Oregon state prisoner, appeals the district court's dismissal of his petition for habeas corpus under 28 U.S.C. § 2254. In his petition, Wells argues (1) that he was denied effective assistance of counsel; (2) that the state engaged in prosecutorial misconduct by entering into an unenforceable agreement that any sentences arising from his state convictions would run concurrently with his federal sentences; and (3) that this unenforceable agreement rendered his guilty plea involuntary. The district court dismissed the ineffective assistance claim as procedurally defaulted and denied the other claims on the merits. Because Wells did not default on the ineffective assistance claim, we reverse the district court's dismissal of this ground for relief. We affirm the denial of Wells's other claims, however.
In 1985, Donald Ray Wells was indicted in state court in Polk County, Oregon, on three counts of first degree robbery, two counts of attempted murder, two counts of being an ex-convict in possession of a firearm, and one count of unauthorized use of a motor vehicle. At about the same time, he was charged in state court in Marion County, Oregon, with two counts of first degree robbery, and in federal district court with being an armed career criminal. He was convicted of the federal charge and of one count of first degree robbery in the Marion County case.
In the Polk County case, which is the only one challenged in this federal habeas petition, Wells agreed to plead guilty to one count of third degree robbery. He also agreed to a stipulated facts trial on one count of attempted murder, in which he was found guilty. In exchange, the prosecution agreed to dismiss all of the other Polk County charges. The trial court sentenced Wells to 20 years on the attempted murder conviction, and five years on the robbery conviction. In the Marion County case, Wells was sentenced to 20 years on the robbery conviction. In the federal case, he was sentenced to 30 years. All of these sentences were to be served consecutively.
After an unsuccessful direct appeal, Wells filed a petition for postconviction relief in state court. In that petition, Wells claimed that the Polk County prosecutor had agreed in plea negotiations that any sentences arising out of the state charges would be served concurrently with any federal sentences he received. Wells alleged that his trial counsel rendered ineffective assistance by convincing him to agree to this unenforceable plea bargain and then failing to enforce it. He also alleged that the prosecution had engaged in misconduct by knowingly entering into an unenforceable agreement.
The trial court denied postconviction relief and found specifically that "no plea bargain was ever made regarding concurrent sentences." Wells appealed, renewing both his prosecutorial misconduct claim and his ineffective assistance claim. In his brief on appeal, Wells appeared to argue that, even if no enforceable plea agreement existed, trial counsel rendered ineffective assistance by erroneously leading him to believe that such an agreement did in fact exist. The essential premise underlying Wells's objections was that his counsel had assured him that his sentences would run concurrently and that his guilty plea was based on that fallacious advice. The Court of Appeals affirmed without opinion, and Wells filed a petition for discretionary review in the Oregon Supreme Court. The petition seemed generally to incorporate the assignments of error raised in the Court of Appeals. It did not specifically discuss the issue of counsel's incompetence, but it did point out that Wells had no reason to plead guilty other than his desire for concurrent sentences. Wells argued, "had petitioner known such an agreement was unenforceable, there is every indication that he would not have waived his constitutional rights pursuant to a guilty plea, as he would have received no benefit thereby." The Oregon Supreme Court denied review.
On March 29, 1992, Wells filed a federal habeas petition in the U.S. District Court for the District of Oregon. The petition, which challenged only the Polk County convictions, contained three claims: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct due to the failure to comply with the agreement that Wells's state sentences would run concurrently with his federal sentence; and (3) involuntariness of Wells's guilty plea arising from the prosecutor's entry into an unenforceable plea agreement. The district court dismissed the ineffective assistance claim as procedurally defaulted. With regard to Wells's second and third claims, the district court considered itself bound by the state postconviction court's finding that no agreement regarding concurrent sentences existed. The court thus denied those claims on the merits. This appeal followed.
Wells raised an ineffective assistance claim in his petition for state postconviction relief and in his appeal to the Oregon Court of Appeals from the denial of that petition.*fn1 His petition for discretionary review by the Oregon Supreme Court did not explicitly refer to counsel's assistance, however. Relying on this fact, the district court dismissed the claim as procedurally defaulted.*fn2 We conclude that the ineffective assistance claim was properly before the Oregon Supreme Court - and hence not defaulted - under Oregon law. Because the district court did not address the merits of Wells's ineffective assistance claim, we remand for further proceedings on that claim.
When a state prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice or actual innocence. See Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2554, 2565, 115 L. Ed. 2d 640 (1991). As Coleman makes clear, the procedural default doctrine is a specific application of the general adequate and independent state grounds doctrine. See id. at 2553-54. It applies only where a prisoner violates a state procedural rule. Even if a prisoner fails to raise a claim in state court, a default will result only if that failure constitutes a waiver under state law. See Maxwell v. Sumner, 673 F.2d 1031, 1033-34 (9th Cir.), cert. denied, 459 U.S. 976, 74 L. Ed. 2d 291, 103 S. Ct. 313 (1982); see also Brownstein v. Director, Illinois Dept. of Corrections, 760 F.2d 836, 841 n.2 (7th Cir.) ("'Procedural default' requires the by-pass of a procedural requirement, and not merely the by-pass of a procedural opportunity.") (citing Maxwell with approval), cert. denied, 474 U.S. 858, 88 L. Ed. 2d 138, 106 S. Ct. 166 (1985). In order to determine whether Wells committed a procedural default, we must first determine whether, in raising his ineffective assistance claim, he failed to comply with some state procedural rule that imposed a penalty of forfeiture.
We conclude that, under Oregon law, Wells did not violate any procedural rule or forfeit his ineffective assistance claim. The petition for review in the Oregon Supreme Court states that "had petitioner known that such an agreement [regarding concurrent sentences] was unenforceable, there is every indication that he would not have waived his constitutional rights pursuant to a guilty plea." The clear purport of this statement is that he would not have waived his right to a jury trial had Wells's counsel properly advised him regarding whether his sentences would run concurrently. Such a statement could reasonably have been expected to put the Oregon Supreme Court on notice that Wells was challenging the effectiveness of his trial counsel. In context, it is clear that the petition for review was referring to Wells's second assignment of error in his Court of Appeals brief, which explicitly raised the ineffective assistance issue. It is apparent on the face of the petition for review that Wells intended to incorporate by reference both of the assignments of error raised in the Court of Appeals. The first sentence of the "points relied upon for reversal" in the petition states that: "Petitioner [sic] appeal involved two assignments of error . ...