Jerry D. Franklin Petitioner - Appellee
Josh Hawley Respondent - Appellant T. C. Outlaw Respondent
Submitted: September 20, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Franklin sought habeas relief on the basis that his attorney
in the underlying state-court proceeding failed to fulfill
Franklin's explicit instruction to appeal his conviction
and sentence. The district court granted the petition,
finding that Franklin's procedural default of that claim
was excused under Martinez v. Ryan, 566 U.S. 1
(2012). We disagree because Martinez expressly does
not excuse a procedural default that occurs in the appeal of
a collateral state court proceeding. We therefore reverse.
2009, Franklin intentionally drove his vehicle into a marked
police car while he was fleeing the police. Two officers were
injured, and methamphetamine was found in Franklin's
vehicle. As a result, Franklin faced charges in both state
and federal court: the state court case included two charges
of assault on a law enforcement officer, and the federal case
charged Franklin with possession of methamphetamine with
intent to distribute. Franklin pled guilty to all charges.
The district court sentenced Franklin to 216 months
imprisonment on the federal count, and we affirmed. See
United States v. Franklin, 695 F.3d 753, 755 (8th Cir.
2012). The state court sentenced Franklin to a 216-month term
on each charge, to run concurrently with one another and with
the federal sentence. At present, Franklin is incarcerated at
a federal facility outside of Missouri.
filed this habeas petition under 28 U.S.C. § 2254,
alleging that he was denied effective assistance of counsel
because his attorneys did not appeal the state-court sentence
after Franklin had explicitly directed them to do so. The
district court noted that Franklin had not yet exhausted his
available state remedies, so it stayed the case to allow
Franklin to seek relief in the Missouri courts.
then filed a pro se motion in a Missouri circuit court under
Missouri Rule 29.07, asserting his ineffective assistance
claim. The circuit court summarily denied his
motion on November 8, 2013. More than a year later, on
January 21, 2015, Franklin filed a pro se motion for late
notice of appeal with the Missouri Court of Appeals. Although
that court originally granted his motion, it then issued
another order stating that the motion may have been
improvidently granted and ordering Franklin to show cause why
the appeal should not be dismissed. Franklin responded, but
the court of appeals ultimately dismissed the appeal as
untimely under Missouri Supreme Court Rule
30.03. Shortly thereafter, Franklin filed a pro
se application for transfer to the Missouri Supreme Court,
which was denied. Satisfied that the above steps exhausted
Franklin's state court remedies, the district court then
resumed consideration of his habeas petition.
district court first concluded that Franklin's claim is
procedurally defaulted because the state appellate court
dismissed the appeal of the circuit court's denial of the
claim as untimely under a Missouri procedural rule. As a
result, the district court found it could reach the claim on
the merits only if Franklin showed both cause and prejudice
or actual innocence. Proceeding under Martinez, the
court noted that a prisoner may establish cause for default
where the state court did not appoint counsel in an initial
review collateral proceeding that was the prisoner's
first opportunity to litigate the ineffective assistance
claim. After finding that Missouri law does not
allow ineffective assistance claims on direct appeal, the
court ruled that Franklin showed cause for the procedural
default because he was pro se during the state court Rule
court next observed that the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), applied
because Franklin's claim was denied on the merits by the
state circuit court. See Harrington v. Richter, 562
U.S. 86, 99 (2011) ("When a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.").
Thus, to succeed on his ineffective assistance claim under
AEDPA, Franklin needed to meet a "doubly"
deferential standard: judicial review of counsel's
performance is "highly deferential, "
Strickland v. Washington, 466 U.S. 668, 689 (1984),
and "[e]stablishing that a state court's application
of Strickland was unreasonable under § 2254(d)
is all the more difficult, " Richter, 562 U.S.
at 105. Thus, the relevant question before the district court
was "whether there is any reasonable argument that [his
defense] counsel satisfied Strickland's
deferential standard." Id.
district court then focused its analysis on Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000), in which the
Supreme Court stated "that a lawyer who disregards
specific instructions from the defendant to file a notice of
appeal acts in a manner that is professionally
unreasonable." In such a circumstance, prejudice may be
proved by a showing that the attorney's error caused the
petitioner to forego his right to an appeal. Id. at
484. Given this Supreme Court precedent, the district court
hypothesized that the only possible way the state circuit
court's denial of Franklin's motion could conform
with Flores-Ortega is if the state court concluded,
as a factual matter, that Franklin did not actually instruct
his attorneys to file an appeal of his conviction and
sentence. The court concluded that Franklin showed the
requisite level of prejudice because he supported his state
court motion with evidence that he did, in fact, instruct his
attorneys to appeal.
the district court conditionally granted Franklin's
petition "for the limited purpose of allowing the
circuit court to impose the same sentence Franklin received
on June 29, 2010, so that he ...