Johnny Ray Ogle v. Warden Curtis Johnson

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JUNE 15, 2007

No. 06-11074 THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 05-00011-CV-WTM-5

JOHNNY RAY OGLE,

Petitioner-Appellant,

versus

WARDEN CURTIS JOHNSON,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(June 15, 2007)

Before PRYOR, KRAVITCH and ALARCON,* Circuit Judges.

PRYOR, Circuit Judge:

*

Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting

by designation.

The main issue in this appeal is whether a pro se petitioner for the writ of

habeas corpus fairly presents his claim to a state habeas court when he makes a

bare allegation of ineffective assistance of appellate counsel in his state habeas

petition and then describes in briefs and testimony in later proceedings several

instances of alleged ineffective assistance. Johnny Ray Ogle filed a timely federal

habeas petition that alleged, among other things, that his appellate counsel had

been ineffective by failing to pursue eight specific arguments. The district court

reviewed Ogle’s state habeas proceeding, concluded that Ogle failed to present

these allegations of ineffective assistance in that proceeding, and dismissed Ogle’s

federal habeas petition. Because we conclude that Ogle fairly presented seven of

these eight allegations to the state habeas court, we reverse and remand.

I. BACKGROUND

After a jury trial in Georgia state court, Ogle, who is indigent and was

represented by appointed counsel, was convicted of armed robbery. Ogle’s

appointed trial counsel then filed a motion for a new trial. Because he was

dissatisfied with his trial counsel’s representation, Ogle requested and was granted

new appointed counsel. Ogle’s new counsel filed an amended motion for a new

trial and, when the motion was denied, represented Ogle on appeal. Ogle’s

conviction was affirmed.

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After exhausting his options for direct review of his conviction, Ogle filed a

pro se petition for state habeas corpus in which he raised numerous issues,

including four counts of ineffective assistance of appellate counsel. The second

count of ineffective assistance of appellate counsel raised in that petition complains

that his counsel was ineffective for “failure to raise numerous meritorious issues

requested by the petitioner.” Ogle’s petition did not elaborate on these “numerous

meritorious issues.”

In later proceedings, Ogle explained the legal and factual basis for his

allegation that his appellate counsel had failed to raise “numerous meritorious

issues.” At the evidentiary hearing held by the state habeas court, Ogle questioned

his postconviction attorney about her failure to raise several issues. Ogle

specifically questioned his postconviction counsel about her failure to investigate

the basis for the admission of the offense weapon into evidence, raise an issue about

the prosecuting attorney’s failure to disclose a plea agreement with a codefendant,

raise the issue that neither Ogle nor his counsel were present at arraignment, argue

that the prosecutor violated Ogle’s right not to testify against himself, and argue

that the prosecutor suborned perjury.

Ogle also testified before the state habeas court. Ogle explained that he sent

a pro se memorandum of law to his appellate counsel advising her to raise several

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issues in a motion for a new trial but she refused. Ogle testified that he attempted to

file the memorandum in the trial court himself but the trial court refused to consider

the pro se submission. Ogle alleged that he was prejudiced by his counsel’s failure

to raise the issues in his pro se memorandum. Ogle’s memorandum was entered

into evidence at the hearing.

In the pro se memorandum referenced in his testimony, Ogle requested that

his counsel argue the following “meritorious” issues: the prosecutor did not disclose

the plea agreement with Ogle’s codefendant and suborned perjury; neither he nor

his counsel were present at the arraignment; the search warrant was obtained with

false testimony; and the offense weapon was inadmissible evidence. Ogle

referenced this memorandum and his appellate counsel’s failure to raise these issues

throughout the evidentiary hearing before the state habeas court.

In a post-hearing brief, which the state habeas court requested, Ogle again

explained the basis for his ineffective assistance claim against his appellate counsel.

Ogle argued that he requested that his appellate counsel raise numerous

“meritorious” issues, which he attempted to preserve in his pro se memorandum.

Ogle then enumerated three issues out of the many in his pro se memorandum that

his counsel did not raise. Ogle argued that his counsel was inadequate when she did

not raise an argument regarding the failure of the prosecutor to “reveal the deal,”

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when she failed to investigate and challenge the evidentiary basis for the offense

weapon, and when she did not argue that a new trial was warranted because neither

Ogle nor his trial counsel were present at the arraignment. Finally, Ogle reiterated

that his appellate counsel failed to address the issues raised in his pro se

memorandum and her failure was the basis of his ineffective assistance of appellate

counsel claim.

The state habeas court found that Ogle’s appellate counsel reasonably

believed that she had no basis to allege that the prosecutor failed to disclose a plea

bargain with Ogle’s codefendant, “assert that the state impermissibly [commented]

on [Ogle’s] right to remain silent,” or allege that the prosecutor had improperly

injected his personal opinion into closing argument. The state habeas court rejected

Ogle’s argument that his counsel erred when she failed to raise the issues in his

memorandum. The state habeas court concluded that Ogle’s counsel did not have

an obligation to raise every issue requested by Ogle and she had made a strategic

decision to raise the issues she thought had the strongest chance of prevailing. The

Georgia Supreme Court denied Ogle’s timely application for a certificate of

probable cause to appeal.

Ogle filed a petition for habeas corpus in federal district court in which he

raised eight claims related to the ineffective assistance of his appellate counsel.

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Ogle asserted that his appellate counsel had been ineffective for her failure to raise

the following issues in her motion for a new trial or on appeal: (1) the prosecutor

improperly commented on Ogle’s refusal to make a post-arrest statement; (2) the

state and Ogle’s trial counsel failed to inform the jury of plea agreements between

the state and witnesses, including Ogle’s codefendant; (3) the prosecutor suborned

perjury when he failed to correct the statement of Ogle’s codefendant that he did not

have an agreement with the state and repeated that statement in his closing

argument; (4) neither Ogle nor his counsel were present at the arraignment; (5) the

prosecutor improperly stated his opinion as to Ogle’s truthfulness; (6) the Georgia

Bureau of Investigation agent used false testimony to obtain a search warrant; (7)

the trial court should have allowed Ogle to present and preserve issues in a pro se

brief during trial; and (8) the offense weapon should have been excluded at trial.

After reviewing the trial and state habeas corpus records, the district court

determined that Ogle failed to exhaust these eight issues to the state courts.

Because Georgia law would bar Ogle from asserting these arguments in a second

state postconviction proceeding, the district court concluded that Ogle procedurally

defaulted these arguments. The district court addressed the other arguments raised

in Ogle’s federal habeas petition and concluded that they were meritless. The

district court then dismissed Ogle’s petition. We granted a certificate of

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appealability on the following issue: Whether the district court erred in finding that

Ogle procedurally defaulted his eight claims of ineffective assistance of appellate

counsel by failing to raise them in his state habeas proceedings.

II. STANDARD OF REVIEW

“Whether [Ogle] is procedurally barred from raising particular claims is a

mixed question of law and fact that we review de novo.” Bailey v. Nagle, 172 F.3d

1299, 1302 (11th Cir. 1999). Procedural default can arise “if the petitioner simply

never raised a claim in state court, and it is obvious that the unexhausted claim

would now be procedurally barred due to a state-law procedural default.” Id. at

1303.

III. DISCUSSION

Our discussion is divided in two parts. First, we address the main question in

this appeal: whether Ogle exhausted his state remedies as to his eight claims of

ineffective assistance of counsel. Second, we address whether any claim that Ogle

failed to exhaust is procedurally defaulted because it cannot be exhausted in a

successive habeas petition in Georgia state court.

A. Ogle Exhausted Seven of His Eight Claims of Ineffective Assistance of Counsel.

The habeas statute requires applicants to exhaust all available state law

remedies before filing a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A). “[T]he

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federal claim must be fairly presented to the state courts” so that “the state courts

have had the first opportunity to hear the claim sought to be vindicated in the

federal habeas proceeding.” Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509,

512 (1971). It is not enough that Ogle, in his state habeas petition, attacked his

postconviction counsel as inadequate for her failure to raise “meritorious issues.”

“[A] habeas petitioner may not present instances of ineffective assistance of counsel

in his federal petition that the state court has not evaluated previously.” Footman v.

Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992). To have exhausted these eight

claims, Ogle had to present the eight instances of ineffective assistance that he now

asserts in his federal petition “such that a reasonable reader would understand each

claim’s particular legal basis and specific factual foundation.” McNair v. Campbell,

416 F.3d 1291, 1302 (11th Cir. 2005) (internal quotation marks omitted).

The state habeas court explicitly rejected three of Ogle’s arguments, and

Warden Johnson confesses that these claims were exhausted. The state habeas

court concluded that Ogle’s appellate counsel was permitted not to argue that the

prosecutor failed to disclose a plea agreement with Ogle’s codefendant (Issue 2),

“to assert that the state impermissibly [commented] on [Ogle’s] right to remain

silent” (Issue 1), or to allege that the prosecutor had improperly injected his

personal opinion into closing argument (Issue 5). The district court erred when it

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determined that these arguments were procedurally defaulted.

Warden Johnson argues that Ogle failed to exhaust any issue that the state

habeas court did not address in its order, but we disagree. A habeas petitioner

exhausts available state remedies when he fairly presents his claim for a state

remedy even if the state never acts on his claim. See Breazeale v. Bradley, 582

F.2d 5, 6 (5th Cir. 1978) (“[A] federal habeas petitioner will be excused from the

exhaustion requirement if the state unreasonably delays acting on his efforts to

invoke state remedies.”). “It is too obvious to merit extended discussion that

whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied

cannot turn upon whether a state . . . court chooses to ignore in its opinion a federal

constitutional claim squarely raised . . . in the state court.” Smith v. Digmon, 434

U.S. 332, 333, 98 S. Ct. 597, 599 (1978). The written order of the state court is a

starting, not an ending, point for our analysis of exhaustion. See, e.g., Footman,

978 F.2d at 1212 (“[T]he magistrate judge should not have relied upon the state trial

court’s order to determine which allegations Footman presented in his state post-

conviction motion.”). The opinion of the state habeas court establishes that Ogle

exhausted the issues addressed in that opinion, but we cannot conclude, based only

on the silence of that opinion about other issues, that Ogle presented no other

arguments.

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Ogle persuasively argues that he fairly presented several claims of ineffective

assistance of counsel through his direct testimony, the examination of his post-trial

attorney, the entry of his pro se memorandum into evidence, and the filing of a post-

hearing brief. In Francis v. Spraggins, we held that a Georgia petitioner exhausted

his claim in the state habeas court when he made a general allegation of ineffective

assistance in his state habeas petition and called specific instances of ineffective

assistance to the attention of the court during the proceedings:

This is not to say that a general allegation of ineffective assistance or a

specific allegation of ineffective assistance wholly unrelated to the

ground on which the claim ultimately depends will immunize a

petitioner from a finding of procedural default. But where the

petitioner calls the state court’s attention to ineffective assistance

problems and the court examines the crucial aspect of counsel's

representation, as in this case, the petitioner may relitigate the

constitutional claim in federal court.

720 F.2d 1190, 1193 (11th Cir. 1983).

Our review of the record of Ogle’s state habeas proceeding reveals that, in

addition to the three issues upon which the state habeas court explicitly passed

judgment, Ogle presented another four of the eight allegations of ineffective

assistance that he described in his federal habeas petition. In his testimony, Ogle

complained that his postconviction counsel had been ineffective when she refused

to raise the issues in his memorandum, which he offered into evidence. Ogle’s

memorandum advised his attorney to argue that the prosecutor suborned perjury

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(Issue 3), neither he nor his counsel were present at the arraignment (Issue 4), the

search warrant was obtained with false testimony (Issue 6), and the offense weapon

was inadmissible (Issue 8). When construed liberally, see Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998), Ogle’s post-hearing brief reiterated

that his counsel should have challenged the offense weapon as inadmissible (Issue

8) and the absence of Ogle at his arraignment (Issue 4). Ogle also questioned his

appellate counsel extensively on her refusal to raise these issues. The district court

erred when it determined that these arguments were procedurally defaulted.

Ogle failed to exhaust a single allegation of ineffective assistance of appellate

counsel. The record does not establish that Ogle argued to the state habeas court

that the trial court erred by not allowing Ogle to file his pro se memorandum or that

his counsel was ineffective when she did not appeal this decision (Issue 7). At oral

argument in this appeal, Ogle’s appointed counsel admitted that Ogle waived this

issue, and we appreciate her candor.

B. The Seventh Issue of Ineffective Assistance of Counsel Is Procedurally

Defaulted.

When a federal habeas petition raises a claim that has not been exhausted in

state proceedings, the district court ordinarily must either dismiss the petition,

“leaving the prisoner with the choice of returning to state court to exhaust his

claims or of amending or resubmitting the habeas petition to present only exhausted

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claims to the district court,” Kelley v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1351

(11th Cir. 2004) (internal quotation marks omitted), or grant a stay and abeyance to

allow the petitioner to exhaust the unexhausted claim, see Rhines v. Weber, 544

U.S. 269, 277-79, 125 S. Ct. 1528, 1535-36 (2005). “[W]hen it is obvious that the

unexhausted claims would be procedurally barred in state court due to a state-law

procedural default, [the district court] can forego the needless ‘judicial ping-pong’

and just treat those claims now barred by state law as no basis for federal habeas

relief.” Kelley, 377 F.3d at 1351 (internal quotation marks omitted). The

unexhausted claims should be treated as if procedurally defaulted. See Bailey, 172

F.3d at 1302. A petition is “due to be denied with prejudice [if] there are no state

remedies left to exhaust and all of the claims are either meritless or procedurally

defaulted.” Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).

Section 9-14-51 of the Georgia Code forbids successive state habeas petitions

except to raise issues that could not have been raised in the first habeas petition.

This rule “bars the defendant from raising in a second, or successive, collateral

attack proceeding an error that he should have presented in his first, or earlier,

collateral attack proceeding.” Presnell v. Kemp, 835 F.2d 1567, 1573 (11th Cir.

1988). “The Georgia statute . . . can and should be enforced in federal habeas

proceedings against claims never presented in state court, unless there is some

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indication that a state court judge would find the claims in question ‘could not

reasonably have been raised in the original or amended [state] petition.’”

Chambers, 150 F.3d at 1327 (quoting Ga. Code Ann. § 9-14-51).

Ogle’s unexhausted claim for ineffective assistance (Issue 7) clearly could

not be raised in a successive state habeas petition and is procedurally defaulted

under Georgia law. If the district court on remand again concludes that Ogle’s

petition does not raise any meritorious claims, the district court should not, as it did

before, dismiss the petition. The district court should deny the petition with

prejudice. See Chambers, 150 F.3d at 1326.

IV. CONCLUSION

Because Ogle exhausted in his state postconviction proceeding seven of the

eight allegations of ineffective assistance of counsel that he now raises in his federal

habeas petition, the dismissal of Ogle’s habeas petition is REVERSED and

REMANDED.

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