Charles Harvey Joseph Franklin v. Dan Johnson, Superintendent

290 F.3d 1223 Charles Harvey Joseph FRANKLIN, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Respondent-Appellee. No. 00-36108. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 2002. Filed May 30, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Christoper J. Schatz, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant. Erika L. Hadlock, Office of the Attorney General of the State of Oregon, Salem, OR, for the defendant-appellee. Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. Before B. FLETCHER, O'SCANNLAIN, and BERZON, Circuit Judges. Opinion by Judge BERZON; Concurrence by Judge O'SCANNLAIN. OPINION BERZON, Circuit Judge. 1 Charles Harvey Joseph Franklin appeals the denial of his petition for habeas relief under 28 U.S.C. § 2254 . After a stipulated-facts bench trial, Franklin was convicted of one count of sodomy in the first degree and sentenced to 9 years, 8 months in prison and 3 years of supervised release. Franklin unsuccessfully appealed his conviction in the state courts and then filed a pro se petition under 28 U.S.C. §…

Opinion by Judge BERZON; Concurrence by Judge O’SCANNLAIN.

OPINION

Charles Harvey Joseph Franklin appeals the denial of his petition for habeas relief under 28 U.S.C. § 2254 . After a stipulated-facts bench trial, Franklin was convicted of one count of sodomy in the first degree and sentenced to 9 years, 8 months in prison and 3 years of supervised release. Franklin unsuccessfully appealed his conviction in the state courts and then filed a pro se petition under 28 U.S.C. § 2254 , arguing only that his trial counsel was ineffective for failing to investigate or pursue a possible mental state defense. The district court denied the claim on the merits and dismissed Franklin’s habeas petition. Franklin appeals to this court.

Respondent (“the state”) contends for the first time on appeal that Franklin’s claim was not exhausted in state court and has been procedurally defaulted. We hold that the ineffectiveness claim is not procedurally barred, but affirm the denial of the habeas petition on the merits.

I. BACKGROUND

In April of 1992, Franklin was charged, in a case we will call “Franklin I,” with raping his oldest stepdaughter. Represented by court-appointed attorney David *1227…

concurring in part and concurring in the judgment:

I concur in Parts I and III of the court’s opinion affirming the district court’s denial of Charles Harvey Joseph Franklin’s § 2254 habeas petition. I agree that the representation Franklin received, while below our reasonableness standard, did not entitle him to habeas relief. However, because the issue of whether the State waived its procedural default argument is more complicated than the majority allows, I cannot join Part II of the court’s opinion.

I

The court speculates that while a “state shall not be deemed to have waived the exhaustion requirement ... unless the state, through counsel, expressly waives *1238 [it],” 28 U.S.C. § 2254 (b)(3) (emphasis added), the State can waive its procedural bar argument on appeal by failing to raise it in the district court. Quite simply, the majority’s analysis of § 2254(b)(3) elevates form over substance by failing to recognize that here the State’s procedural bar argument necessarily rests upon Franklin’s failure to exhaust his claim in state court.

At bottom, the State argues that Franklin failed to exhaust his claim in state court, and, therefore, by function of Oregon law, 1 it…