Petition for Writ of Certiorari — Jerry Franklin, Petitioner v. Joshua Hawley, et al.

Supreme Court briefMay 24, 2017

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No.

In The

Supreme Court of the United States

JERRY FRANKLIN,

Petitioner,

JOSHUA HAWLEY and T.C. OUTLAW,

Respondents.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JONATHAN STERNBERG

Counsel of Record

JONATHAN STERNBERG, ATTORNEY, P.C.

2323 Grand Boulevard, Suite 1100

Kansas City, Missouri 64108

Telephone: (816) 292-7000

Facsimile: (816) 292-7050

jonathan@sternberg-law.com

Counsel for Petitioner

May 24, 2018

QUESTIONS PRESENTED

The petitioner is serving his Missouri post-plea prison sentence outside Missouri. Missouri law is unsettled how a prisoner in his position can bring ineffectiveassistance claims in Missouri state court. A federal district court suggested he try a

motion to withdraw his plea. He attempted that, the state motion court summarily

denied it without appointing counsel, and he did not timely appeal. The federal district court then granted habeas relief on his claim that his plea counsel had been

ineffective, holding any procedural default was excused under Martinez v. Ryan,

566 U.S. 1 (2012), as the state motion court had not appointed him counsel. The

Eighth Circuit reversed, holding that “assum[ing]” the motion to withdraw “was an

appropriate means for [him] to raise his claim”, his failure to appeal its denial was

inexcusable, as “the Martinez exception applies only if the procedural default occurs

during the initial review of the ineffective assistance claim”, not on appeal from it.

The questions presented are:

Whether under Ford v. Georgia, 498 U.S. 411 (1991), a state procedure

whose use to claim ineffective assistance of counsel is unsettled and that never had

been used to do so meets the “firmly established and regularly followed” requirement to be an adequate state-law ground capable of resulting in procedural default.

Whether under Martinez v. Ryan, 566 U.S. 1 (2012), a prisoner who is

not appointed counsel in his initial-review collateral proceeding and fails to appeal

pro se from the denial of relief in that proceeding has cause for his default.

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Table of Authorities ...................................................................................................... iv

Introduction ................................................................................................................... 1

Decisions Below ............................................................................................................. 4

Statement of Jurisdiction .............................................................................................. 4

Constitutional and Statutory Provisions Involved ....................................................... 4

Statement of the Case ................................................................................................... 6

Reasons for Granting the Petition .............................................................................. 11

A. The Eighth Circuit’s decision acknowledging “Missouri law is unsettled” whether a prisoner detained out-of-state after a guilty plea could

use a motion to withdraw his plea to claim ineffective assistance of

plea and sentencing counsel but “assuming” it was appropriate for Mr.

Franklin, and holding he procedurally defaulted by failing to appeal

the denial of that relief, conflicts with decisions of this Court and of

other circuits requiring that a state procedure be “firmly established

and regularly followed” by the time as of which it is to be applied,

which the procedure at issue here was not. ..................................................... 12

1. To be capable of resulting in a procedural default on an ineffectiveassistance claim when it is violated, a state procedural rule must be

“firmly established and regularly followed” as a requirement of

state law to exhaust an ineffective-assistance claim in state court. ......... 12

2. A motion to set aside a guilty plea for manifest injustice under Rule

29.07(d) is not “firmly established” or “regularly followed” as a requirement of Missouri law to exhaust an ineffective-assistance

claim in Missouri state court, as it remains entirely unsettled

whether such a claim actually is litigable through that procedure. .......... 14

iii

B. The Eighth Circuit’s decision that a prisoner who is not appointed

counsel in his initial-review state collateral proceeding cannot excuse

his procedural default in failing to appeal pro se from the denial of that

relief conflicts with this Court’s decision in Martinez v. Ryan........................ 18

Conclusion .................................................................................................................... 24

APPENDIX

Appendix A – Opinion (8th Cir.) (Jan. 5, 2018) ......................................................... 1a

Appendix B – Memorandum and Order (E.D.Mo.) (July 24, 2013) ........................ 11a

Appendix C – Memorandum and Order (E.D.Mo.) (Sept. 1, 2016) .......................... 20a

Appendix D – Judgment (E.D.Mo.) (Sept. 1, 2016) .................................................. 48a

Appendix E – Order Denying Rehearing and Rehearing En Banc (8th Cir.)

(Feb. 26, 2018) ...................................................................................................... 49a

TABLE OF AUTHORITIES

CASES:

Brown v. State, 66 S.W.3d 721 (Mo. 2002) ......................................................... 8, 15-16

Coleman v. Thompson, 501 U.S. 722 (1991) ..................................................... 1, 12, 22

Del Vecchio v. Ill. Dept. of Corrections, 31 F.3d 1363 (7th Cir. 1994) (en banc) ........ 14

Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008) ................................................................. 13

Ford v. Georgia, 498 U.S. 411 (1991) ...................................................................passim

Forgy v. Norris, 64 F.3d 399 (8th Cir. 1995) ............................................................... 13

Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006) .................................................. 13

Gonzales v. Elo, 233 F.3d 348 (6th Cir. 2000) ............................................................ 13

Gray v. State, 498 S.W.3d 522 (Mo. Ct. App. 2016) ........................................... 7, 17-18

James v. Gibson, 211 F.3d 543 (10th Cir. 2000) ......................................................... 13

Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001) ................................................ 13

Lee v. Kemna, 534 U.S. 362 (2002) .......................................................................... 1, 12

Martinez v. Ryan, 566 U.S. 1 (2012) ....................................................................passim

Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010) ...................................................... 20

Moore v. Parke, 148 F.3d 705 (7th Cir. 1998) ............................................................. 13

Reagan v. Norris, 279 F.3d 651 (8th Cir. 2002) ..................................................... 13-14

Reed v. Scott, 70 F.3d 844 (5th Cir. 1995)................................................................... 13

Reynolds v. Ellingsworth, 843 F.2d 712 (3d Cir. 1988) ......................................... 12-13

Roe v. Flores-Ortega, 528 U.S. 470 (2000) .............................................................. 6, 10

State v. Ison, 270 S.W.3d 444 (Mo. Ct. App. 2008) ................................................ 16-17

State v. Onate, 398 S.W.3d 102 (Mo. Ct. App. 2013) .................................................. 17

Walker v. Atty. Gen. for Okla., 167 F.3d 1339 (10th Cir. 1999) ................................. 13

CONSTITUTION AND STATUTES:

U.S. Const. Amend. VI................................................................................................... 4

28 U.S.C. § 1254 ............................................................................................................. 4

28 U.S.C. § 2254 ....................................................................................... 4-5, 8-9, 17, 20

Mo. Rev. Stat. § 532.010 ............................................................................................ 5, 7

MISCELLANEOUS:

Mo. Sup. Ct. R. 24.035 ..................................................................................... 5-8, 15-16

Mo. Sup. Ct. R. 29.07 ............................................................................................passim

Mo. Sup. Ct. R. 91.01 ................................................................................................. 5, 7

INTRODUCTION

In Ford v. Georgia, this Court held that for a state procedural rule to be independent and adequate to prevent federal review of a federal claim, it “must have

been ‘firmly established and regularly followed’ by the time as of which it is to be

applied.” 498 U.S. 411, 423-24 (1991) (citation omitted). It later held that this applies equally “in deciding whether federal district courts should address the claims

of state prisoners in habeas corpus actions.” Coleman v. Thompson, 501 U.S. 722,

729-30 (1991); Lee v. Kemna, 534 U.S. 362, 375-76 (2002).

Jerry Franklin pleaded guilty to offenses in Missouri state court but is serving his sentence out-of-state. Missouri law is unsettled whether or how someone in

his position can seek post-conviction relief in the state courts for ineffective assistance of counsel. On the district court’s suggestion below, he moved to withdraw his

guilty plea under Missouri Supreme Court Rule 29.07(d). But no counsel was appointed, the motion was summarily denied, and he did not timely appeal.

The Eighth Circuit held Mr. Franklin’s pro se failure to appeal the denial of

his pro se motion in state court was an inexcusable procedural default, even though

it admitted that “Missouri law is unsettled” as to “whether Rule 29.07 was a proper

avenue for the relief [Mr.] Franklin sought” (App., infra, 6a n.4). It reversed the

district court’s denial of habeas relief for this reason alone (App., infra, 9a).

The Eighth Circuit’s holding, which “assume[s] for the purposes of this opinion that [Rule 29.07(d)] was an appropriate means for [Mr.] Franklin to raise his

claim”, runs afoul of Ford. It also conflicts with decisions of the Third, Fifth, Sixth,

Seventh, Ninth, and Tenth Circuits holding that unsettled or as-yet-unestablished

state procedures are not “firmly established and regularly followed” to be defaultable. This Court’s review is necessary to reclarify which approach is correct.

And if the Eighth Circuit was correct that Mr. Franklin procedurally defaulted his federal claim that the district court found meritorious by failing pro se to appeal the denial of his pro se motion to set aside his guilty plea, then there are equally grave constitutional implications by holding this was not an excusable default.

In Martinez v. Ryan, this Court held that “when a State requires a prisoner to

raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding,” as

Missouri does, “a prisoner may establish cause for default of an ineffectiveassistance claim in two circumstances”, allowing a federal district court to hear the

otherwise-defaulted claim. 566 U.S. 1, 14 (2012). “The first is where the state

courts did not appoint counsel in the initial-review collateral proceeding for a claim.

The second is where the appointed counsel … was ineffective.” Id.

As to the second circumstance, the Court kept in place its prior doctrine, noting “[t]he holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings.” Id. at 16.

But it did not extend this limitation for these “attorney errors” to the first circumstance for cause and hold it inexcusable when counsel is not appointed in the initialreview collateral proceeding but the pro se prisoner errs in not appealing from it.

Here, the Eighth Circuit extended the Court’s limitation on the second Martinez circumstance for “attorney errors” in “appeals from initial-review collateral

proceedings” to a situation involving the first circumstance where no counsel was

appointed at all. It held Mr. Franklin’s procedural default in failing to appeal pro se

the denial of his pro se Rule 29.07(d) motion was inexcusable under Martinez, because “the Martinez exception applies only if the procedural default occurs during

the initial review of the ineffective assistance claim”, not on appeal from that initial

review (App., infra, 9a) (emphasis in the original).

This misreads Martinez and ignores the Court’s point there. Martinez allowed cause for procedural default whenever a state does “not appoint an attorney

to assist the prisoner in the initial-review collateral proceeding” specifically because, as here, “[t]he prisoner, unlearned in the law, may not comply with the

State’s procedural rules ….” 566 U.S. at 12. If the Eighth Circuit is correct, all a

state would have to do to thwart a Martinez claim is not appoint prisoners counsel

in an initial-review collateral proceeding. Then, when the prisoner does not know

how to appeal or otherwise fails to appeal, he or she would be procedurally barred.

The Court’s review is necessary to reexamine Martinez and decide whether

the valve for “attorney error in other proceedings” applies to a pro se prisoner’s error

in not appealing where the state courts did not appoint counsel in the initial-review

collateral proceeding in the first place.

DECISIONS BELOW

The Eighth Circuit’s decision (App., infra, 1a-10a) is reported at 879 F.3d

307. The district court’s decision (App., infra, 20a-47a) is unreported but is available at No. 4:11-CV-934-CEJ, 2016 WL 4561732 (Sept. 1, 2016).

STATEMENT OF JURISDICTION

The Eighth Circuit entered its judgment January 5, 2018 (App., infra, 1a). It

denied Mr. Franklin’s timely petition for rehearing and rehearing en banc on February 26, 2018 (App., infra, 49a). This Court has jurisdiction. 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the United States provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the

right … to have the Assistance of Counsel for his defence.”

28 U.S.C. § 2254(b)-(c) provides:

(b)

(1) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted unless it appears that—

(A) the applicant has exhausted the remedies available in the

courts of the State; or

(B)

(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

available in the courts of the State, within the meaning of this section,

if he has the right under the law of the State to raise, by any available

procedure, the question presented.

Mo. Rev. Stat. § 532.010 provides, in relevant part, “Every person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter … may prosecute a writ of habeas corpus as herein

provided, to inquire into the cause of such confinement or restraint.”

Mo. Sup. Ct. R. 91.01(b) provides, in relevant part: “Any person restrained

of liberty within this state may petition for a writ of habeas corpus to inquire into

the cause of such restraint.”

Mo. Sup. Ct. R. 24.035(a) (2013) provides, in relevant part:

A person convicted of a felony on a plea of guilty and delivered to the

custody of the department of corrections who claims that the conviction

or sentence imposed violates the constitution and laws of this state or

the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, … may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035. This Rule

24.035 provides the exclusive procedure by which such person may

seek relief in the sentencing court for the claims enumerated.

Mo. Sup. Ct. R. 29.07(d) provides: “[T]o correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his plea.”

STATEMENT OF THE CASE

Jerry Franklin pleaded guilty to offenses in federal district court, was sentenced to 216 months imprisonment, and was delivered to the Bureau of Prisons to

serve his sentence (App., infra, 2a), first in Arkansas and later in Illinois. He then

pleaded guilty to offenses in Missouri state court, which levied the same-length sentence and ordered him to serve that Missouri sentence concurrently with his federal

one (App., infra, 2a).

Because of this, Mr. Franklin never has been in the Missouri Department of

Corrections, and instead has served his state sentence only in federal custody physically outside of Missouri (App., infra, 2a-3a n.1). He claims he had directed his attorneys to file a notice of appeal in the Missouri state case, but they did not, which

he argues was ineffective assistance of counsel under Roe v. Flores-Ortega, 528 U.S.

470 (2000) (App., infra, 1a-2a).

This put Mr. Franklin in an unusual posture for seeking post-conviction relief

to litigate his Missouri state ineffective-assistance claim. The law of Missouri is unclear how or whether, being a federal inmate located outside Missouri who never

was in custody of the Missouri Department of Corrections, he could litigate that

claim in Missouri state court and exhaust any state remedies he may have.

This is because “[a]t the time of” Mr. Franklin’s state plea and the proceedings below, “Missouri Supreme Court Rule 24.035 was the ‘exclusive procedure’ for

litigating ineffective assistance claims after conviction” by guilty plea (App., infra,

3a n.1). But that rule “required the petitioner to be ‘delivered to the custody of the

[Missouri] department of corrections’” as a prerequisite to invoking it (App., infra,

3a n.1) (quoting Mo. Sup. Ct. R. 24.035 (2013)).

Nor was a petition for writ of habeas corpus filed in Missouri state court

available. The law of Missouri is that state habeas relief only is available to people

restrained within Missouri, and Mr. Franklin was and is not. See Mo. Rev. Stat. §

532.010 (“Every person committed, detained, confined, or restrained of his liberty,

within this state … may prosecute a writ of habeas corpus as herein provided, to

inquire into the cause of such confinement or restraint”) (emphasis added); Mo. Sup.

Ct. R. 91.01(b) (“Any person restrained of liberty within this state may petition for

a writ of habeas corpus to inquire into the cause of such restraint”) (emphasis added); Gray v. State, 498 S.W.3d 522, 529 (Mo. Ct. App. 2016) (recognizing that Missouri state habeas relief was unavailable to Missouri state prisoner serving state

sentence in federal prison in Tennessee).

So, within one year of his Missouri sentence, Mr. Franklin filed a habeas corpus action pro se in federal district court, alleging several grounds, one of which was

that his Missouri state plea and sentence counsel were ineffective for failing to file a

notice of appeal when he had requested them to (App., infra, 12a, 21a n.2).

Mr. Franklin explained to the district court that, as Missouri’s Rule 24.035

and habeas procedures were closed to him, there was no available state postconviction process for him to raise his claims, so the district court could hear them

in the first instance (App., infra, 12a-13a). See 28 U.S.C. § 2254(b)(1) (if “there is an

absence of available State corrective process” or “circumstances exist that render

such process ineffective to protect the rights” of the petitioner, district court can

reach the merits of his claims even though they were not presented in state court).

The district court agreed with Mr. Franklin that he indeed could not utilize

Missouri’s Rule 24.035 and habeas procedures to bring the claims in his § 2254 petition (App., infra, 13a-15a). But it held sua sponte that because “Missouri courts

have alluded to the potential application of” Missouri Supreme Court Rule 29.07(d)

“in circumstances where it ‘is too early to file a motion under Rule 24.035 because

the movant has not yet been … sent to the’” Missouri Department of Corrections,

that “appears to be the only avenue available for [Mr. Franklin] to raise his claims

in a state forum” (App., infra, 15a-16a) (quoting Brown v. State, 66 S.W.3d 721, 729

(Mo. 2002)).

But it was unsure whether Mr. Franklin actually could use Rule

29.07(d) to this end, and it merely believed it was “possible that a Missouri court

might allow [Mr. Franklin] to raise his constitutional claims via Rule 29.07(d) instead of Rule 24.035” (App., infra, 16a n.2).

The district court agreed that Mr. Franklin’s “physical location places him in

a difficult dilemma” – either (1) “fail[ing] to exhaust state remedies” due to “reasonable confusion regarding the state rules,” the standard ones of which required him

to be in the Missouri Department of Corrections, or (2) “wait[ing] until being transferred into Missouri custody to challenge his conviction” under the standard state

rules, upon which “the one-year limitations period for filing a federal habeas action

would have expired” (App., infra, 16a). Accordingly, the district court stayed the §

2254 proceedings, held Mr. Franklin’s petition in abeyance, and gave him 30 “days

in which to present his claims to the state courts in a post-conviction relief proceeding” (App., infra, 16a, 18a), presumably under Rule 29.07(d).

Mr. Franklin, still pro se, then filed a Rule 29.07(d) motion to withdraw his

guilty plea in Missouri state court, which was denied summarily without appointment of counsel, response by the State, or any hearing (App., infra, 2a-3a, 23a-24a).

The Eighth Circuit’s opinion does not mention that Mr. Franklin never received a copy of this denial until more than one year after the state court entered it,

and then only when the State in the district court proceedings below attached a

copy to a supplemental response to his § 2254 petition (App., infra, 22a). By that

point, it was too late to appeal from the state court’s denial order or even to seek

leave to appeal out of time (App., infra, 3 n.2). The Missouri Court of Appeals denied his pro se motion for permission to file a late notice of appeal, and the Supreme

Court of Missouri denied his pro se application for transfer (App., infra, 3a).

The district court then resumed the § 2254 proceedings. Ultimately, it granted Mr. Franklin relief on his ineffective-assistance claim for Missouri plea and sentencing counsel’s failure to file the notice of appeal (App., infra, 3a-5a). It granted

the petition “for the limited purpose of allowing the [Missouri state] court to impose

the same sentence [Mr.] Franklin received … so that he may file an appeal” (App.,

infra, 5a, 45a-46a, 48a).

The district court held that Mr. Franklin’s claim was procedurally defaulted

because he failed to appeal timely from the denial of his Rule 29.07(d) motion (App.,

infra, 4a, 23a). But it held that under Martinez v. Ryan, in which this Court held “a

prisoner may establish cause for default of an ineffective-assistance claim … where

the state courts did not appoint counsel in the initial-review collateral proceeding”,

566 U.S. 1, 14 (2012), because “Missouri law does not allow ineffective assistance

claims on direct appeal, … [Mr.] Franklin showed cause for the procedural default

because he was pro se during the state court Rule 29.07 proceedings” (App., infra,

4a, 24a). It then held that, under Roe v. Flores Ortega, Mr. Franklin had proven ineffective assistance of counsel (App., infra, 5a, 24a-45a).

The Eighth Circuit reversed the grant of habeas relief without remand. It

acknowledged that “Missouri law is unsettled” as to “whether Rule 29.07 was a

proper avenue for the relief [Mr.] Franklin sought”, but stated it “assume[s] for the

purposes of this opinion that it was an appropriate means for [Mr.] Franklin to

raise his claim” (App., infra, 6a n.4). But it held that Mr. Franklin’s procedural default in failing to appeal the denial of his Rule 29.07(d) motion was not excusable

under Martinez, because “the Martinez exception applies only if the procedural default occurs during the initial review of the ineffective assistance claim”, not on appeal from that initial review (App., infra, 9a).

REASONS FOR GRANTING THE PETITION

Two of the Eighth Circuit’s holdings in this case depart from the existing law

of the United States and warrant this Court’s writ of certiorari.

First, the Eighth Circuit’s decision acknowledging that “Missouri law is unsettled” as to whether Mr. Franklin could use Missouri’s Rule 29.07 to seek state

relief but “assum[ing]” it was and then holding Mr. Franklin was inexcusably procedurally defaulted by failing to appeal from the denial of that relief, conflicts with

Ford v. Georgia, 498 U.S. 411 (1991), and its progeny in other circuits. Contrary to

the Eighth Circuit’s decision here, Ford and its progeny hold that unsettled or unestablished state procedural doctrines are insufficient to meet the “firmly established

and regularly followed” requirement for a procedural bar.

Second, the Eighth Circuit’s extension of this Court’s statement in Martinez

v. Ryan, 566 U.S. 1 (2012), that attorney errors in appeals from initial-review collateral proceedings do not excuse default, to a prisoner not appointed counsel in an

initial-review collateral proceeding, conflicts with the Court’s reasoning in Martinez.

In Martinez, the Court stated it was cause for default whenever a state does “not

appoint an attorney to assist the prisoner in the initial-review collateral proceeding”, because “[t]he prisoner, unlearned in the law, may not comply with the State’s

procedural rules ….” Id. at 12. The Court did not intend states to thwart Martinez

by not appointing counsel in an initial-review collateral proceeding so that the prisoner’s unlearned pro se failure to appeal from it would be inexcusable default.

The Eighth Circuit’s decision acknowledging “Missouri law is unsettled” whether a prisoner detained out-of-state after a guilty plea

could use a motion to withdraw his plea to claim ineffective assistance of plea and sentencing counsel but “assuming” it was appropriate for Mr. Franklin, and holding he procedurally defaulted by

failing to appeal the denial of that relief, conflicts with decisions of

this Court and of other circuits requiring that a state procedure be

“firmly established and regularly followed” by the time as of which it

is to be applied, which the procedure at issue here was not.

1. To be capable of resulting in a procedural default on an ineffective-assistance claim when it is violated, a state procedural rule

must be “firmly established and regularly followed” as a requirement of state law to exhaust an ineffective-assistance claim in

state court.

The Eighth Circuit correctly explained that “[u]nder the doctrine of procedur-

al default, ‘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’” (App., infra, 5a-6a) (quoting Martinez, 566 U.S. at 9).

But to be capable of resulting in such a default, “an adequate and independent state procedural bar to the entertainment of constitutional claims must have

been ‘firmly established and regularly followed’ by the time as of which it is to be

applied.” Ford, 498 U.S. at 424-25 (rule unannounced at the time of the default not

firmly established and so not capable of thwarting federal review).

This principle applies “in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions.” Lee v. Kemna, 534

U.S. 362, 375-76 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729-30

(1991)); see, e.g., Reynolds v. Ellingsworth, 843 F.2d 712, 725 (3d Cir. 1988) (no

clearly established rule at the time of default that required the petitioner to raise

ineffective-assistance-of-counsel claims on direct appeal); Lambright v. Stewart, 241

F.3d 1201, 1203-04 (9th Cir. 2001) (state rule that did not clearly provide habeas

petitioner with a fair opportunity to seek relief in state court was not capable of default); Fahy v. Horn, 516 F.3d 169, 188 (3d Cir. 2008) (“whether the rule was firmly

established and regularly followed is determined as of the date the default occurred,

not the date the state court relied on it”).

So, a procedural rule not adopted or established until after the petitioner defaulted his federal claims in state court does not satisfy the “firmly established and

regularly followed” requirement. Reed v. Scott, 70 F.3d 844, 846-47 (5th Cir. 1995)

(state procedural rule not “strictly or regularly applied evenhandedly to the vast

majority of similar claims” was not adequate to be defaultable); Gonzales v. Elo, 233

F.3d 348, 354 (6th Cir. 2000) (state procedural rule not firmly enacted until after

prisoner’s case was not adequate to be defaultable); Franklin v. Anderson, 434 F.3d

412, 420 (6th Cir. 2006) (same); Moore v. Parke, 148 F.3d 705, 710 (7th Cir. 1998)

(same); James v. Gibson, 211 F.3d 543, 549-50 (10th Cir. 2000) (same); Walker v.

Atty. Gen. for Okla., 167 F.3d 1339, 1344-45 (10th Cir. 1999) (same).

Even the Eighth Circuit previously acknowledged this. See Forgy v. Norris,

64 F.3d 399, 402 (8th Cir. 1995) (state procedural rule first announced in petitioner’s case did not bar federal review as “unexpected state procedural bars are not adequate to foreclose federal review of constitutional claims”); Reagan v. Norris, 279

F.3d 651, 658-59 (8th Cir. 2002) (state procedural rule not established at the time

petitioner purportedly defaulted his claim on appeal and was not defaultable);

Likewise, state procedural rules applied to novel circumstances not previously faced by the state courts are not sufficiently established to bar federal review on

the merits. Del Vecchio v. Ill. Dept. of Corrections, 31 F.3d 1363, 1381 (7th Cir.

1994) (en banc) (state procedural rule was inadequate and not defaultable where

state court had “never [previously] faced the question”).

2. A motion to set aside a guilty plea for manifest injustice under

Rule 29.07(d) is not “firmly established” or “regularly followed” as

a requirement of Missouri law to exhaust an ineffective-assistance

claim in Missouri state court, as it remains entirely unsettled

whether such a claim actually is litigable through that procedure.

So, for Mr. Franklin to have procedurally defaulted in failing to appeal from

the denial of his Rule 29.07(d) motion, as the Eighth Circuit holds, a Rule 29.07(d)

motion first must be firmly established and regularly followed as a viable and required procedure for a prisoner in his position to raise a claim for ineffective assistance of plea and sentencing counsel. As this Court in Ford and its progeny above

uniformly have understood, it is not. For, as even the Eighth Circuit acknowledged,

whether it allows such a claim is “unsettled” (Opinion 6 n.4).

Missouri Supreme Court Rule 29.07(d) provides:

Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty

may be made only before sentence is imposed or when imposition of

sentence is suspended; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

In its brief below in the Eighth Circuit, the State argued that Mr. “Franklin’s

claims of ineffective assistance of counsel cannot be raised in a Rule 29.07 motion to

withdraw his guilty plea” (Brief of the Appellant, p. 20). The Eighth Circuit’s opinion suggests Mr. Franklin argued the opposite: that he “does not complain about his

ability to present his claim to the state circuit court” (App., infra, 9a). This is untrue. In his brief, Mr. Franklin argued, “The law of Missouri is unsettled whether a

person who is barred from seeking state post-conviction relief under Rule 24.035 or

a Rule 91 Missouri writ of habeas corpus can pursue this relief under Rule 29.07(d)”

(Brief of the Appellee, p. 32).

The Eighth Circuit agreed with Mr. Franklin that this question is “unsettled”

(App., infra, 6a n.4), but suggested that the Supreme Court of Missouri actually has

approved of using Rule 29.07(d) to raise an ineffective-assistance claim in some similar circumstance (App., infra, 3a n.1). It quotes part of a footnote in Brown v.

State, 66 S.W.3d 721, 730 n.5 (Mo. 2002), as “indicating that ‘a motion under the

second clause of Rule 29.07(d) to set aside a conviction and withdraw a guilty plea

after sentence but before remand to the DOC’ would be the proper course of action

to raise claims enumerated in Rule 24.035” (App., infra, 3a n.1).

That is not a fair reading of Brown. There, the Missouri court merely left

open the possibility that Rule 29.07(d) might provide that procedure in a case where

the normal avenues of post-conviction relief were unavailable, but did not “indicate”

it “would” be proper, as the Eighth Circuit paraphrased. Id.

While holding that “Rule 29.07(d) does not have its own procedures or separately developed jurisprudence and, for this reason, has fallen into disuse,” and on

the merits in that case that the prisoner there could not bring a Rule 29.07(d) claim

and instead should have used a state-law petition for writ of habeas corpus, the

court remarked in dicta that

[d]espite this holding, Rule 29.07(d) still plays an important role in this

State’s jurisprudence …. Rule 24.035 by its terms applies only to motions brought after conviction and sentencing and remand to the DOC.

Therefore, claims that are brought prior to conviction, sentencing and

remand to the DOC do not come within the claims enumerated in Rule

24.035 and so need not be raised in a Rule 24.035 motion or by habeas

corpus in order to be preserved. For this reason, a motion under the

first clause of Rule 29.07(d) to withdraw a plea of guilty before sentence is imposed or when imposition of a sentence is suspended would

still be proper, as would a motion under the second clause of Rule

29.07(d) to set aside a conviction and withdraw a guilty plea after sentence but before remand to the DOC ….

Id. at n.5 (emphasis added). And even in that far-afield circumstance, it did not

state that an authorized Rule 29.07(d) “claim” included ineffective assistance of

counsel. Id.

The Supreme Court of Missouri has not revisited this. And no subsequent

intermediate Missouri appellate court decision through the time of Mr. Franklin’s

case below had allowed a party to bring an ineffective-assistance-of-counsel claim by

means of a Rule 29.07(d) motion in any circumstance. See: State v. Ison, 270 S.W.3d

444, 445-47 (Mo. Ct. App. 2008) (where defendant’s sentence was suspended and he

never was sent to Missouri Department of Corrections, his claim of actual innocence

due to victim’s recantation could be raised under Rule 29.07(d) rather than in a writ

of habeas corpus); State v. Onate, 398 S.W.3d 102, 107 (Mo. Ct. App. 2013) (trial

court could not treat defendant’s “motion for new trial” attacking State’s alleged

breach of plea agreement as a Rule 29.07(d) motion, because he filed it only after he

was sentenced and remanded to Department of Corrections, suggesting it could

have been considered a Rule 29.07(d) motion if filed before remand); Gray v. State,

498 S.W.3d 522, 529 (Mo. Ct. App. 2016) (expressly not deciding whether Rule

29.07(d) motion may be viable post-conviction option for a defendant who cannot

seek state habeas relief because he is confined out-of-state, but recognizing that it

might).

So, as the Missouri Court of Appeals in Gray made plain, whether a Missouri

state prisoner never delivered to the Missouri Department of Corrections and confined outside Missouri can utilize Rule 29.07(d) to bring a claim of ineffective assistance of counsel at all is an entirely unsettled question of Missouri law.

But the effect that this Court in Ford and its uniform progeny across the

country holds this has on Mr. Franklin’s ability to obtain relief under 28 U.S.C. §

2254 is not therefore to “assume for the purposes of this opinion that [Rule 29.07(d)]

was an appropriate means for [him] to raise his claim”, as the Eighth Circuit held

here (App., infra, 6a n.4). The effect is exactly the opposite: Mr. Franklin’s failure

to exhaust his Rule 29.07(d) proceedings by appealing the summary denial of his

motion cannot be a procedural default. It plainly is not “firmly established and regularly followed” in the law of Missouri that a motion to withdraw a plea for manifest

injustice under Rule 29.07(d) is a viable procedure, let alone a required one, for a

prisoner in Mr. Franklin’s position to raise a claim for ineffective assistance of plea

and sentencing counsel. Not only has the Supreme Court of Missouri never held

this, but the only time this question ever squarely has come up in Missouri case

law, in Gray, the Missouri Court of Appeals declined to decide it.

Therefore, under Ford and the decisions following it from other circuits cited

above, the procedure for which Eighth Circuit assigns default to Mr. Franklin was

not capable of being defaultable, as it was not “firmly established and regularly followed” at the time of the proceedings below. Ford, 498 U.S. at 424-25. The Eighth

Circuit’s decision otherwise conflicts with these decisions. The Court should review

which approach is correct.

The Eighth Circuit’s decision that a prisoner who is not appointed

counsel in his initial-review state collateral proceeding cannot excuse his procedural default in failing to appeal pro se from the denial

of that relief conflicts with this Court’s decision in Martinez v. Ryan.

If the Eighth Circuit was correct that Mr. Franklin’s Rule 29.07(d) motion in

Missouri was capable of being a procedurally-defaultable independent and adequate

ground of state law, then its decision that he cannot show cause for this default by

failing pro se to appeal the denial of his pro se motion to set aside his guilty plea

still warrants this Court’s review because it conflicts with Martinez v. Ryan.

Even if a petitioner procedurally defaults a claim, he still may obtain federal

review of that claim by showing cause for the default and resulting prejudice. Mar-

tinez, 566 U.S. at 10. In Martinez, this Court announced this exception to procedural default:

Where, under state law, claims of ineffective assistance of trial counsel

must be raised in an initial-review collateral proceeding, a procedural

default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance of trial counsel if, in the initial-review

collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”

566 U.S. at 17.

Mr. Franklin did not have counsel to assist him during his Rule 29.07(d) proceedings in Missouri state circuit court, including to file a notice of appeal in the initial-review collateral proceeding to appeal it to the Missouri Court of Appeals. The

district court excused his procedural default for failing timely to appeal the denial of

his Rule 29.07(d) motion under this Martinez exception.

As the Court explained in Martinez, this was correct. The defendant in Martinez was convicted after trial in Arizona state court, and the law of Arizona precluded his appellate counsel from raising claims of ineffective assistance of trial

counsel on direct appeal, requiring them instead to be raised in collateral state proceedings. 566 U.S. at 6. While the defendant’s direct appeal was pending, his appellate counsel also began that collateral proceeding. Id. But she later filed a

statement asserting she could not find any colorable claims of ineffective assistance

of trial counsel. Id.

The state trial court in the collateral proceedings then gave the defendant the

opportunity to file a pro se petition, but he was unaware of the collateral proceed-

ings and did not file anything. Id. The trial court dismissed the collateral action .

Id. Evidently, just as here, neither the defendant nor counsel appealed the trial

court’s dismissal. Id.; Martinez v. Schriro, 623 F.3d 731, 734 (9th Cir. 2010), rev’d,

566 U.S. at 18.

A year-and-a-half later, the defendant, represented by new counsel, again

moved for state post-conviction relief, this time arguing trial counsel was ineffective. 566 U.S. at 6-7. The state trial court dismissed this second post-conviction

motion based on an Arizona procedural rule barring relief on claims that could have

been raised in a previous collateral proceeding. Id. at 7. The Arizona Court of Appeals affirmed, and the Arizona Supreme Court denied review. Id.

The defendant then sought relief in federal district court under § 2254. Id.

He argued the district court could reach the merits of his ineffective-assistance-oftrial-counsel claims despite his procedural default because his first post-conviction

counsel was ineffective in failing to raise any claims in his first motion for postconviction relief and in failing to notify him of her actions. Id.

This Court agreed. Id. at 17-18. It explained that when state procedural

rules require certain claims to be brought for the first time on collateral review (an

“initial-review collateral proceeding”), that proceeding is in many ways the equivalent of the petitioner’s direct appeal as to those claims. Id. at 11. This is because no

other court has addressed those claims, and petitioners generally are ill-equipped to

represent themselves, as they cannot rely on any brief from counsel or court opinion

addressing their claims. Id. at 11-12.

This is because

[a]llowing a federal habeas court to hear a claim of ineffective assistance of trial counsel when an attorney’s errors (or the absence of an

attorney) caused a procedural default in an initial-review collateral

proceeding acknowledges, as an equitable matter, that the initialreview collateral proceeding, if undertaken without counsel or with ineffective assistance of counsel, may not have been sufficient to ensure

that proper consideration was given to a substantial claim.

Id. at 14. Accordingly,

a prisoner may establish cause for a default of an ineffective-assistance

claim in two circumstances. The first is where the state courts did not

appoint counsel in the initial-review collateral proceeding for a claim of

ineffective assistance at trial. The second is where appointed counsel

in the initial collateral-review proceeding, where the claim should have

been raised, was ineffective ….

Id.

The reason for the first circumstance – the lack of counsel appointed in the

initial-review collateral proceeding – is that “if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding”, then the “prisoner, unlearned in the law” and “confined to prison”, “may not comply with the

State’s procedural rules or may misapprehend the substantive details of federal

constitutional law.” Id. at 12.

That is exactly what happened here. Mr. Franklin, unlearned in the law and

confined to prison, did not receive the order denying his Rule 29.07(d) motion in

time to appeal it, and did not comply with Missouri’s procedural rules to file a timely notice of appeal in the state motion court.

The Eighth Circuit grounds its decision that, despite this, Mr. Franklin’s

claim was inexcusably procedurally defaulted, on this Court’s caveat in Martinez

that its holding “does not concern attorney errors in other kinds of proceedings, including appeals from initial collateral-review proceedings.” 566 U.S. at 16.

But the Court made plain in Martinez that it was limiting this valve to the

second circumstance under which a prisoner may establish cause for default of an

ineffective-assistance claim – “where appointed counsel in the initial collateralreview proceeding … was ineffective.” Id. at 14. It was not stating that where a pro

se prisoner was not appointed counsel in an initial-review collateral proceeding and

he failed to appeal from the denial of relief in that proceeding, the court would consider the default inexcusable. To the contrary, it was relying on its previous decision in Coleman, 501 U.S. at 722, “that an attorney’s negligence in a postconviction

proceeding does not establish cause”, and there is no cause from “attorney errors in

other kinds of proceedings ….” Martinez, 566 U.S. at 15-16.

As to the Court’s first circumstance in Martinez, for pro se prisoners, there

was no such tempering. Simply put, “a prisoner may establish cause for a default of

an ineffective-assistance claim … where the state courts did not appoint counsel in

the initial-review collateral proceeding ….” Id. at 14. “[A] procedural default will

not bar a federal habeas court from hearing a substantial claim of ineffective assis-

tance at trial if, in the initial-review collateral proceeding, there was no counsel ….”

Id. at 18. It “acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel …, may not have been sufficient to

ensure that proper consideration was given to a substantial claim” – where “the absence of an attorney” “caused a procedural default ….” Id. at 14.

The Court’s point to this first circumstance, not its second, is that it was not

holding pro se prisoners to the same standards as attorneys. If no counsel was appointed in an initial-review collateral proceeding, no procedural default can arise.

Under Martinez, Mr. Franklin’s failure to file pro se a timely notice of appeal in his

pro se initial-review collateral proceeding therefore qualifies as cause to excuse the

default.

Were it otherwise, it would vitiate the Court’s point in Martinez. States could

simply refuse to appoint counsel in any initial-review collateral proceeding, and

when the pro se prisoner failed to appeal, it automatically would thwart any habeas

corpus action in federal district court, no matter how egregious the ineffective assistance at issue.

Martinez does not allow this. The Eighth Circuit’s decision otherwise conflicts with Martinez, warranting this Court’s review to reclarify which approach is

correct.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,