                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PUBLISH
                                                                     JUN 30 1998
                  UNITED STATES COURT OF APPEALS
                                                                 PATRICK FISHER
                                                                          Clerk
                              TENTH CIRCUIT




 GREGORY DALE ENGLISH,

             Petitioner-Appellee,

       v.                                            No. 97-5004
                                                (D.C. No. 95-C-753-B)
 R. MICHAEL CODY, Warden,                         (N.D. Oklahoma)

             Respondent-Appellant.



 LAVEITA OSBORN OGDEN,

             Petitioner-Appellee,

       v.                                            No. 97-5132
                                               (D.C. No. 95-CV-957-H)
 NEVILLE MASSEY,                                  (N.D. Oklahoma)

             Respondent-Appellant.




       APPEALS FROM THE UNITED STATES DISTRICT COURT
          FOR THE NORTHERN DISTRICT OF OKLAHOMA
               (D.C. Nos. 95-C-753-B and 95-CV-957-H)


Patrick T. Crawley, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, and Diane L. Slayton, Assistant Attorney General, with him
on the briefs), Oklahoma City, Oklahoma, for Respondents-Appellants R. Michael
Cody, Warden, and Neville Massey.
Michael A. Abel, Assistant Federal Public Defender (Stephen J. Knorr, Federal
Public Defender, and Julia O’Connell, Assistant Federal Public Defender, on the
brief), Tulsa, Oklahoma, for Petitioner-Appellee Gregory Dale English.

Tony R. Burns, Anadarko, Oklahoma, for Petitioner-Appellee Laveita Osborn
Ogden.


Before SEYMOUR, Chief Judge, LOGAN and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.



                              I. INTRODUCTION

      Gregory D. English and Laveita O. Ogden (“Petitioners”) brought separate

habeas corpus petitions pursuant to 28 U.S.C. § 2254 in the United States District

Court for the Northern District of Oklahoma. Petitioners each argued, inter alia,

that they were being detained in violation of the Constitution because they had

been denied the effective assistance of counsel at trial. Wardens R. Michael Cody

and Neville Massey (“Respondents”) moved the district court in each proceeding

to deny the petitions on the grounds of procedural bar. According to

Respondents, Petitioners defaulted their ineffective assistance of trial counsel

claims when they failed to raise them on direct appeal to the Oklahoma Court of

Criminal Appeals. Relying on this court’s decision in Brecheen v. Reynolds, 41

F.3d 1343, 1363-64 (10th Cir. 1994), the district court judges in each case


                                        -2-
concluded Petitioners’ claims of ineffective assistance of trial counsel were not

procedurally barred.

      Respondents sought permission pursuant to 28 U.S.C. § 1292(b) to bring

interlocutory appeals of the district court orders. The district court in each case

entered a § 1292(b) order and we allowed both appeals. 1 These cases require this

court to once again consider whether federal courts must respect an Oklahoma

procedural bar which precludes review of claims of ineffective assistance of trial

counsel not raised on direct appeal.



                                II. BACKGROUND

      On habeas review, this court does not address issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991);

Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993). A state procedural ground

is independent if it relies on state law, rather than federal law, as the basis for the



      1
        We reject English’s argument that we lack jurisdiction in his case because
Cody failed to timely appeal after the district court’s first grant of the § 1292(b)
motion. As acknowledged in English’s brief, Cody requested and received from
the district court an order reentering the § 1292(b) order, after which we granted
Cody’s motion for permission to appeal. We therefore hold that we have
jurisdiction to hear the appeal.

                                          -3-
decision. See Klein v. Neal, 45 F.3d 1395, 1398-99 (10th Cir. 1995). The

question of whether a state procedural bar is adequate is generally more difficult

than the question of independence. See Steele, 11 F.3d at 1522. As a general

rule, this court has concluded that in order to be adequate, a state rule of

procedural default must be applied evenhandedly in the vast majority of cases.

See, e.g., Maes v. Thomas, 46 F.3d 979, 985-86 (10th Cir. 1995). Because the

effective assistance of counsel lies at the very foundation of the adversary system

of criminal justice, this court has been particularly vigilant in scrutinizing the

adequacy of state rules of procedural default which have the effect of barring

federal habeas review of claims of ineffective assistance of counsel. See, e.g.,

Jackson v. Shanks, No. 97-2063, 1998 WL 220089, at *4 (10th Cir. May 5, 1998);

Brecheen, 41 F.3d at 1363-64; Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th

Cir. 1988).

      In Brecheen, this court found inadequate the Oklahoma procedural

requirement that all ineffective assistance of trial counsel claims be raised on

direct appeal or forfeited. 2 See 41 F.3d at 1363-64. Brecheen recognized this


      2
        The court further concluded the Oklahoma procedural bar was independent
because it was based on a state rule of waiver, not on federal law. See Brecheen
v. Reynolds, 41 F.3d 1343, 1363 (10th Cir. 1994). Although Oklahoma asks this
court to revisit the conclusion that its procedural bar on ineffective assistance of
trial counsel claims is not adequate, neither party questions the conclusion that
the Oklahoma bar is independent. Accordingly, the independence of that bar is
not at issue in this appeal.

                                         -4-
result conflicted with the general procedural bar rule that “failure to raise a claim

at trial or on direct appeal will preclude federal habeas corpus of the merits of the

claim,” but concluded that when the underlying claim is ineffective assistance of

counsel, “the ‘general’ rule must give way because of countervailing concerns

unique to ineffective assistance.” Id. at 1363.

      The Brecheen conclusion that Oklahoma’s bar is inadequate was based

primarily on the Supreme Court’s decision in Kimmelman v. Morrison, 477 U.S.

365 (1986), and this court’s decision in Osborn v. Shillinger, 861 F.2d 612 (10th

Cir. 1988). In Kimmelman the Supreme Court set forth reasons why ineffective

assistance of counsel claims should be treated differently from other habeas

claims in considering procedural bar questions:

             Because collateral review will frequently be the only means
      through which an accused can effectuate the right to counsel,
      restricting the litigation of some Sixth Amendment claims to trial and
      direct review would seriously interfere with an accused’s right to
      effective representation. A layman will ordinarily be unable to
      recognize counsel’s errors and to evaluate counsel’s professional
      performance; consequently a criminal defendant will rarely know that
      he has not been represented competently until after trial or appeal,
      usually when he consults another lawyer about his case. Indeed, an
      accused will often not realize that he has a meritorious
      ineffectiveness claim until he begins collateral review proceedings,
      particularly if he retained trial counsel on direct appeal. . . . Thus,
      we cannot say . . . that restriction of federal habeas review would not
      severely interfere with the protection of the constitutional right
      asserted by the habeas petitioner.




                                         -5-
477 U.S. at 378 (citation omitted). In Osborn, a habeas case out of Wyoming,

this court cited Kimmelman for the proposition that a state habeas petitioner was

not barred from raising an ineffective assistance of counsel claim in his federal

habeas petition even though he failed to raise that claim on direct appeal. See 861

F.2d at 622-23. Osborn indicated that this result was dictated by the interplay of

two factors: (1) the general need for additional fact-finding for the proper

resolution of a claim of ineffective assistance; and (2) the need to allow a

petitioner to consult with different counsel on appeal in order to obtain an

objective assessment of trial counsel’s performance. See id. at 623.

      Based on this precedent, the Brecheen court concluded that the “need to

give a meaningful opportunity to assess and develop a claim of ineffective

assistance of counsel, coupled with the fact that such claims may require an

opportunity to develop additional facts, compel the conclusion that ‘ineffective

assistance claims may be brought for the first time collaterally.’” 41 F.3d at

1363-64 (quoting Osborn, 861 F.2d at 622) (footnote omitted); see also Jackson,

1998 WL 220089, at *4. After noting that “evidentiary hearings are unavailable

at the appellate level,” the Brecheen court concluded the Oklahoma procedural

bar on ineffective assistance of trial counsel claims not raised on direct appeal

was inadequate because it denied defendants meaningful review of their

ineffective assistance claims. 41 F.3d at 1364. According to the court,


                                         -6-
      The practical effect of [Oklahoma’s procedural bar] is to force
      [petitioner] either to raise this claim on direct appeal, with new
      counsel but without the benefit of additional fact-finding, or have the
      claim forfeited under state law. This Hobson’s choice cannot
      constitute an adequate state ground under the controlling case law
      because it deprives [petitioner] of any meaningful review of his
      ineffective assistance claim.

Id.

      Although Brecheen appears definitive, Respondents assert that its

foundation is built on a faulty premise: a perceived inability of habeas petitioners

to develop factual issues on a direct appeal to the Oklahoma Court of Criminal

Appeals. They point out that in contrast to the assertion in Brecheen, evidentiary

hearings are available as part of the direct appeal process in Oklahoma. As

support for this assertion, Respondents point to Berget v. State, 907 P.2d 1078

(Okla. Crim. App. 1995), which criticized the Brecheen opinion and stated that

Oklahoma does in fact have a mechanism for additional fact-finding in a direct

appeal. In Berget, the Oklahoma Court of Criminal Appeals noted that although it

was not a fact-finding court, an Oklahoma rule of criminal procedure existed

under which it could remand disputed issues to the trial courts for evidentiary

hearings in appropriate cases. See id. at 1084 (“Review via an evidentiary

hearing is not unavailable, it is simply conducted at the trial court level.”).

      Respondents argue that Berget constitutes a definitive statement of the law

of Oklahoma which must be respected by this court. See Garner v. Louisiana,


                                          -7-
368 U.S. 157, 166 (1961) (holding federal courts are bound by a state’s

interpretation of its own laws and cannot substitute their judgment for that of the

state). Respondents then argue that in light of the availability of evidentiary

hearings on direct appeal, Brecheen was decided incorrectly and this court should

repudiate the view that Oklahoma’s procedural bar to the review of ineffective

assistance claims not raised on direct appeal is inadequate. Finally, Respondents

argue that even if this court were to reaffirm Brecheen, the procedural bar should

apply in cases such as this where each Petitioner was represented by new counsel

on direct appeal and their claims of ineffective assistance do not touch on matters

outside of the appellate record.

      In response, Petitioners argue that Kimmelman, Osborn, and Brecheen

constitutionally mandate their entitlement to bring their claims of ineffective

assistance on collateral review, no matter the availability of procedures to

adequately address the issue on direct appeal. In the alternative, Petitioners argue

that even if Oklahoma could develop a system which properly obligated

appellants to raise ineffective assistance issues on direct appeal, the current

system is inadequate because it does not fully and fairly address the concerns

identified in Brecheen. Finally, Petitioners argue the Brecheen rule applies

regardless of whether the claim of ineffectiveness relates to matters within or

outside the record on direct appeal.


                                         -8-
                                  III. ANALYSIS

      The necessary starting point is Petitioners’ contentions that claims of

ineffective assistance of trial counsel can be raised on federal habeas review

regardless of the adequacy of the state scheme for addressing those issues on

direct appeal. Petitioners cite Kimmelman, Osborn, and Brecheen in support of

that contention. A careful review of those cases, however, leads to the conclusion

that they do not establish the rigid rule advocated by the Petitioners. Instead,

these cases simply reflect the constitutional imperative that this court disregard a

state procedural bar for the review of ineffective assistance claims unless the state

procedure in question adequately protects a criminal defendant’s ability to

vindicate his or her constitutional right to the effective assistance of counsel.

      In Kimmelman, the Supreme Court recognized that in order for a criminal

defendant to adequately vindicate his Sixth Amendment right to the effective

assistance of counsel at trial, he must be allowed to obtain an objective

assessment of trial counsel’s performance and must be allowed to adequately

develop the factual basis for any claim of ineffectiveness. See 477 U.S. at 378;

see also Osborn, 861 F.2d at 622-23 (interpreting Kimmelman as embodying these

two constitutional imperatives). Although Kimmelman noted that restricting

litigation of ineffectiveness claims to direct appeal would generally not


                                         -9-
adequately vindicate the two imperatives set out above, that conclusion is based

on the Court’s recognition that trial counsel are often retained to prosecute a

direct appeal and that appellate courts are not generally equipped to make the

kind of fact-findings necessary to adequately develop a claim of ineffectiveness.

See 477 U.S. at 378 & n.3. That recognition cannot be reasonably read, however,

as rigidly foreclosing Oklahoma from developing a system of handling ineffective

assistance claims on direct appeal which embodies the imperatives set out in

Kimmelman.

      Nor can this court’s cases be read for such a proposition. In Osborn, the

seminal Tenth Circuit case on this issue, this court recognized the imperatives set

out in Kimmelman and indicated that it would not apply a Wyoming procedural

bar “[w]here, as here, an ineffectiveness claim cannot be made on the basis of the

[direct appeal] record and the allegedly ineffective counsel handled both the trial

level proceedings and the direct appeal.” 861 F.2d at 623. Likewise, it is clear

that the decision in Brecheen not to recognize the Oklahoma procedural bar was

driven by this court’s belief that there was no adequate mechanism in the

Oklahoma direct appeal process for an evidentiary hearing on ineffectiveness

claims. See 41 F.3d at 1364 (“The practical effect of [Oklahoma’s procedural

bar] is to force [petitioner] either to raise this claim on direct appeal, with new

counsel but without the benefit of additional fact-finding, or have the claim


                                         - 10 -
forfeited under state law.”). To the extent that a system requiring that criminal

defendants raise ineffectiveness claims on direct appeal complies with the

Kimmelman imperatives, however, it is clear that this court will respect the

procedural bar when a petitioner fails to comply with that system. See Jackson,

1998 WL 220089, at *4 (“Absent the opportunity to consult with new counsel to

ascertain whether counsel in his direct criminal proceedings performed adequately

or develop facts relating to his counsel’s performance, the state’s imposition of a

procedural bar ‘deprives [petitioner] of any meaningful review of his ineffective

assistance claim.’” (alteration in original) (quoting Brecheen, 41 F.3d at 1364)).

      This court’s decision in United States v. Galloway, 56 F.3d 1239 (10th Cir.

1995) (in banc), does not mandate a different result. In Galloway, a 28 U.S.C.

§ 2255 case, 3 this court held that claims of ineffective assistance should be

brought for the first time on collateral review and that “[n]o procedural bar

[would] apply to claims which could have been brought on direct appeal but were

brought in post-conviction proceedings instead.” Id. at 1242. Galloway reflects a

pragmatic decision based on two equally important considerations. First,

although not impossible, it is impractical to comply with the Kimmelman


      3
       While § 2254 is the federal habeas corpus statute governing collateral
attacks by persons in state custody on the grounds that their sentence was imposed
in violation of the Constitution, § 2255 is an analog provision which establishes
similar collateral proceedings for individuals in the custody of the United States.
Compare 28 U.S.C. § 2254 with 28 U.S.C. § 2255.

                                        - 11 -
imperatives in the direct appeal setting. See id. at 1240-41. Second, while

justified on the basis of encouraging finality of judgments, forcing criminal

defendants to raise ineffective assistance of trial counsel on direct appeal does

not, in fact, further that objective. As aptly noted in Galloway:

              The problem with these reasons, and procedural bar, is that
      they are absurdly easy to circumvent on the one hand, and painfully
      labor intensive to sort through and apply on the other. The usual
      tactic to force a second review is to claim in a post-conviction
      proceeding that appellate counsel was ineffective for failing to
      advance all possible reasons showing why trial counsel was
      ineffective, and that appellate counsel was ineffective for not raising
      other issues relating to trial and sentencing. Technically, this is a
      first-time claim of ineffectiveness which cannot be procedurally
      barred and which is not unitary with the claim of ineffectiveness of
      trial counsel advanced on direct appeal.

Id. at 1241; see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that

where a “procedural default is the result of ineffective assistance of counsel, the

Sixth Amendment itself requires that responsibility for the default be imputed to

the State”).

      While Galloway makes clear that forcing criminal defendants to raise

ineffective assistance claims on direct appeal is an impractical approach which

fails miserably at furthering the goal of finality of judgments, Galloway’s force is

limited as an exercise of this court’s inherent authority to control its own docket

and its supervisory power over federal district courts in this Circuit. This court

has no such supervisory authority over Oklahoma courts. See Harris v. Rivera,


                                        - 12 -
454 U.S. 339, 344-45 (1981) (“Federal judges have no general supervisory power

over state trial judges; they may not require the observance of any special

procedures except when necessary to assure compliance with the dictates of the

Federal Constitution.”). To the extent that Oklahoma chooses to construct a

system of addressing claims of ineffective assistance on direct appeal that

complies with the Kimmelman imperatives, this court cannot ignore such a

procedure merely because it will inevitably and necessarily suffer from the same

systemic inefficiencies identified in Galloway.

      Despite Petitioners’ suggestion to the contrary, Kimmelman, Osborn, and

Brecheen do not establish a rigid constitutional rule prohibiting Oklahoma from

requiring the presentation of ineffective assistance of trial counsel claims on

direct appeal. Instead, those cases identify the importance of the Sixth

Amendment right to counsel and mandate that no state procedure for resolving

claims of ineffective assistance will serve as a procedural bar to federal habeas

review of those claims unless the state procedures comply with the imperatives set

forth in Kimmelman: (1) allowing petitioner an opportunity to consult with

separate counsel on appeal in order to obtain an objective assessment of trial

counsel’s performance and (2) providing a procedural mechanism whereby a

petitioner can adequately develop the factual basis of his claims of




                                        - 13 -
ineffectiveness. See Kimmelman, 477 U.S. at 378 & n.3.; Osborn, 861 F.2d at

623; Brecheen, 41 F.3d at 1363-64.

      The conclusion that Oklahoma can force criminal defendants to raise claims

of ineffective assistance of trial counsel on direct appeal and comply with the

Kimmelman imperatives does not, however, resolve this case. Regardless of the

hypothetical propriety of such a system, Petitioners raise serious questions about

the adequacy of the actual Oklahoma procedural mechanism. For example,

although not determinative here, the Oklahoma Court of Criminal Appeals has

recently held claims of ineffective assistance of trial counsel must be raised on

direct appeal or waived even if trial and appellate counsel are the same. See

McCracken v. State, 946 P.2d 672, 676 (Okla. Crim. App. 1997); Neill v. State,

943 P.2d 145, 148 (Okla. Crim. App. 1997). Kimmelman, Osborn, and Brecheen

mandate, however, that this court never apply a state procedural bar when trial

and appellate counsel are the same. See Kimmelman, 477 U.S. at 378; Osborn,

861 F.2d at 623; Brecheen, 41 F.3d at 1363-64.

      Respondents rightfully point out, however, that because Petitioners each

had independent appellate counsel, the first Kimmelman imperative is satisfied.

In response, Petitioners argue that the Oklahoma procedural bar is not adequate

because it does not comply with the second Kimmelman imperative: a sufficient

procedural mechanism on direct appeal whereby defendants can adequately


                                        - 14 -
develop the factual basis of their ineffective assistance claims. Specifically,

Petitioners contend (1) the rule which apparently grants the Oklahoma Court of

Criminal Appeals the power to remand a claim of ineffective assistance of trial

counsel to the trial court for additional factual development, Okla. Stat. Ann.

tit.22, ch. 18, app., Rules of the Court of Criminal Appeals, Rule 3.11 (hereinafter

“Rule 3.11”), has been amended frequently in the last decade; 4 (2) the remand

provisions of Rule 3.11 5 are far too narrow to adequately allow development of

ineffective assistance claims to comply with the second Kimmelman imperative; 6


      4
       Respondents never identify in their briefs the Oklahoma procedure that
supposedly complies with the second Kimmelman imperative. The Oklahoma Court of
Criminal Appeals relied on Rule 3.11 in concluding that Brecheen was based on a
misunderstanding of the Oklahoma direct appeal system. See Berget v. State, 907 P.2d
1078, 1085 (Okla. Crim. App. 1995).
      5
        As noted above, Rule 3.11 has been amended frequently over the last decade. As a
result of Respondent’s failure to identify the exact procedural mechanism which
supposedly complies with Kimmelman, see supra note 4, it is also unclear which version
of Rule 3.11 is applicable here. The issue is best left to the district court on remand.
      6
        The version of Rule 3.11 as it existed before 1993 apparently allowed the
Oklahoma Court of Criminal Appeals to remand for any purpose, and thus
presumably would allow remand for a hearing on an ineffective assistance of
counsel claim on direct appeal. The Rule, however, has been frequently amended
and the current version allows a remand only under limited circumstances--when
there is an alleged “failure of trial counsel to properly utilize available evidence
or adequately investigate to identify evidence which could have been available
during the course of the trial.” Accordingly, Rule 3.11 seems to preclude
hearings for ineffective assistance claims that do not involve trial evidence but
which could require further hearings in order to make a determination. These
would include, for example, conflicts of interest in the representation of one or
more clients, see Edens v. Hannigan, 87 F.3d 1109, 1114-15 (10th Cir. 1996), and
                                                                            (continued...)

                                         - 15 -
(3) even if Rule 3.11 were sufficient to comply with the second Kimmelman

imperative, the Oklahoma Court of Criminal Appeals merely pays lip-service to

the Rule and never remands for factual development of ineffectiveness claims’ 7

      6
       (...continued)
failure to advise a defendant of his right to appeal, see Baker v. Kaiser, 929 F.2d
1495, 1499 (10th Cir. 1991). Neither example would involve an evidentiary
matter covered by Rule 3.11, but a further hearing would be needed to properly
adjudicate the claim.
       After Berget, the Oklahoma Court of Criminal Appeals did have a case in
which the petitioner claimed ineffective assistance of trial counsel because of a
conflict of interest due to joint representation of the petitioner and her co-
defendant son. See Smith v. State, 915 P.2d 927 (Okla. Crim. App.), cert. denied,
117 S. Ct. 400 (1996). Without citing any rule, the court stated, “When the claim
is ineffective assistance of counsel on issues outside the record, it may be raised
collaterally.” Id. at 930. Smith was a capital case, however, and in 1995
Oklahoma enacted new statutory rules applicable to capital cases which provided
that the Court of Criminal Appeals could remand when a claim of ineffective
assistance of counsel “requires factfinding outside the direct appeal record.”
Okla. Stat. Ann. tit. 22, § 1089(D)(4)(b)(1). In cases decided after Smith and the
enactment of § 1089(D)(4)(b)(1), the Oklahoma Court of Criminal Appeals has
narrowly construed that statute. Thus, under this new line of cases, even
information and documents outside the direct appeal record will not be considered
in capital post-conviction proceedings if the information was available to
defendant’s attorney at the time of his direct appeal. See, e.g., Walker v. State,
933 P.2d 327, 332 (Okla. Crim. App.), cert. denied, 117 S. Ct. 2524 (1997).
      7
        Respondents have cited only one instance in which the Oklahoma Court of
Criminal Appeals has remanded an ineffective assistance claim for an evidentiary
hearing. See Wilhoit v. State, 816 P.2d 545, 546-47 (Okla. Crim. App. 1991)
(after remand in direct appeal for evidentiary hearing, reversing, without citing
Rule 3.11, because trial counsel was ineffective due to alcohol dependence).
Furthermore, although the cases at issue here are not capital cases, it is indicative
of the adequacy of the Oklahoma system that in the 17 months since Walker, 933
P.2d at 332, was decided, the Oklahoma Court of Criminal appeals has entered
decisions in no less than 24 postconviction capital cases raising ineffective
assistance of trial counsel claims. None were remanded for an evidentiary
                                                                          (continued...)

                                        - 16 -
and (4) the Oklahoma Court of Criminal Appeals generally resolves ineffective

assistance claims in such a cursory manner that it is usually impossible to tell

from the opinion whether additional fact-finding was necessary to adequately

resolve the claim.

      Although these allegations raise very grave concerns about the adequacy of

the Oklahoma procedure for resolving ineffective assistance of trial counsel

claims on direct appeal, resolution of that issue on this appeal would be

premature. Kimmelman, Osborn, and Brecheen indicate that the Oklahoma bar

will apply in those limited cases meeting the following two conditions: trial and

appellate counsel differ; and the ineffectiveness claim can be resolved upon the

trial record alone. All other ineffectiveness claims are procedurally barred only if

Oklahoma’s special appellate remand rule for ineffectiveness claims is adequately

and evenhandedly applied. See Maes, 46 F.2d at 986. The most significant

problem in these cases is that the records do not indicate whether they fall in the

former category or the latter and this court is loath to reach out and decide the

adequacy of the Oklahoma procedure if such a decision is not necessary to the

resolution of this appeal.

      Oklahoma asserts the claims of each Petitioner relate solely to matters that

were within the direct appeal record and that no additional facts needed to be

      7
       (...continued)
hearing; none of the appellants were granted any relief.

                                         - 17 -
developed to resolve the claims of ineffectiveness. In response, English refuses

to take a stand on whether his claims embrace matters outside of the record. He

instead argues that the Kimmelman line of cases allow him to bring his claims

even in the absence of a need to supplement the direct appeal record. Ogden

asserts without elaboration that two of her claims do embrace matters outside of

the record on direct appeal. Unfortunately, because of the procedural posture of

these cases, we cannot determine whether Petitioners’ claims required

supplementation of the record on direct appeal or additional fact-finding.

      In light of this status, we must remand for a determination of whether these

claims embrace matters in the trial record or whether they require enlargement of

that record or additional fact-finding. If, on remand, the district courts conclude

that Petitioners’ claims concern matters wholly manifest in the direct appeal

record, the claims are procedurally barred. If, on the other hand, the district

courts conclude that Petitioners’ claims could only be adequately developed

thorough supplementation of the record on appeal or additional fact-finding, the

district courts should then consider whether the applicable Oklahoma remand

procedure was adequate to serve that purpose. In so doing, the courts should

consider the four bases of inadequacy alleged by Petitioners, see supra pages 15-

17, and any other additional factor deemed pertinent. If the Oklahoma procedure




                                        - 18 -
is found to be inadequate, the district courts should refuse to apply a procedural

bar and address Petitioners’ claims on the merits.



                                IV. CONCLUSION

      The judgments of the district courts refusing to apply a procedural bar to

Petitioners’ claims of ineffective assistance are hereby VACATED. The cases

are REMANDED to the respective district courts for further proceedings

consistent with this opinion.




                                        - 19 -
