                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       August 17, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    JESIL A BR AH A M W ILSO N ,

                Petitioner-A ppellant,

                                                         No. 05-5115
    v.                                         (D.C. No. 02-DV-0323-CVE-PJC)
                                                         (N.D. Okla.)
    STA TE O F OKLA HOM A; TU LSA
    CO UNTY ; JUSTIN JONES, *

                Respondents-Appellees.



                             OR D ER AND JUDGM ENT **


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




         Petitioner Jesil Abraham W ilson appeals from a district court order denying

his petition for a writ of habeas corpus. W ilson’s primary claim is that his trial



*
       Justin Jones replaced Ron W ard as Director of the Oklahoma D epartment of
Corrections on October 27, 2005. M r. Jones is therefore substituted for M r. W ard
as a respondent in this action. See Fed. R. App. P. 43(c)(2).
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
counsel was constitutionally ineffective in connection with his pre-trial

certification for trial as an adult on murder charges arising out of a shooting that

occurred when he was thirteen years old. The district court held that this claim

was procedurally barred. W e granted a certificate of appealability on that ruling,

see 28 U.S.C. § 2253(c), and appointed the Federal Public Defender to represent

petitioner on appeal. On de novo review, see Anderson v. Att’y Gen., 342 F.3d

1140, 1143 (10th Cir. 2003), we reverse and remand for further proceedings.

      W ilson’s counsel 1 did not raise ineffective assistance of certification

counsel on direct appeal in the Oklahoma courts following his conviction. But on

post-conviction review in the Oklahoma Court of Criminal Appeals (OCCA),

W ilson alleged certification counsel had been ineffective in failing to: investigate

and prepare for the certification hearing, call witnesses, present mitigating

evidence, challenge statements made during petitioner’s custodial interrogation,

and raise competency issues. See R. doc. 1, exs. 1 & 3. Citing the omission of

this claim on direct appeal, the state court held that it had been procedurally

defaulted. W ilson’s post-conviction application also asserted that appellate

counsel had been ineffective for this very omission— a claim that, if substantiated,

would have provided cause to excuse the procedural default— but this appellate




1
     At successive stages of his prosecution, W ilson had different counsel, to
whom we refer as certification counsel, trial counsel, and appellate counsel.

                                          -2-
ineffectiveness claim was denied on the merits. He then filed the instant habeas

petition.

      Before addressing the district court’s disposition, we start with a

fundamental deficiency in the OCCA’s analysis of the appellate ineffectiveness

claim. That analysis consisted of nothing more than a conclusion immediately

following this legal premise: “The fact appellate counsel fails to recognize or

raise a claim, regardless of merit, is not and cannot alone be sufficient to establish

ineffective assistance or to preclude enforcement of a procedural default.”

R. doc. 4, ex. G, at 2. In Cargle v. M ullin, 317 F.3d 1196, 1202-05 (10th Cir.

2003), however, we explained at length that (1) the merit of the omitted claim is

the focus of the appellate ineffectiveness inquiry, (2) omission of a sufficiently

meritorious claim can, in itself, establish ineffective assistance, and, thus, (3) the

state court’s rejection of an appellate ineffectiveness claim on the basis of the

legal premise invoked here is wrong as a matter of federal constitutional law. See

also M alicoat v. M ullin, 426 F.3d 1241, 1248 (10th Cir. 2005) (following Cargle),

cert. denied, 126 S. Ct. 2356 (2006). W e emphasize that “[b]ecause the O CCA’s

analysis of petitioner’s ineffectiveness allegations deviated from the controlling

federal standard, it is not entitled to deference” on habeas review. Cargle,

317 F.3d at 1205; see also M alicoat, 426 F.3d at 1248.

      In its habeas review, the district court ignored the state court’s erroneous

disposition of the appellate ineffectiveness claim. Instead, it constructed a

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different rationale for why the failure to appeal certification counsel’s

performance did not reflect ineffective assistance by petitioner’s appellate

counsel— though, we note, also without ever considering the merits of the omitted

claim. Citing state law that requires the defendant to take an immediate

interlocutory appeal from an adult certification order and that the failure to do so

waives the matter, see M ooney v. State, 990 P.2d 875, 884 (Okla. Crim. App.

1999), 2 the district court held that W ilson’s appellate counsel could not be found

ineffective for not pursuing a matter that was in fact waived at the time direct

appeal was taken. W hile perhaps persuasive at first blush, on closer examination

this analysis cannot be sustained.

      The analysis tacitly rests on an unduly constricted notion of appellate

ineffectiveness, with the result that one omission by counsel is excused on the

basis of yet another. The very circumstance relied on to negate the appellate

ineffectiveness claim, i.e., the failure to timely perfect an interlocutory appeal,

could itself aptly fall within the heading of appellate ineffectiveness for

procedural bar purposes even if the fault lies with certification counsel (or any

other attorney representing petitioner during his trial proceedings) rather than the

attorney who pursued an appeal following final judgment. See Jones v. Cowley,

2
      M ooney was decided under the 1991 state code, while petitioner’s case was
governed by the 1997 version, but the substance of the operative statutes was not
changed (despite some renumbering). See Okla. Stat. Ann. tit. 10, § 7303-6.2(A )
(1997); see also Okla. Stat. Ann. tit. 22, Ch. 18, App. (Rules of the Court of
Criminal Appeals), Rules 2.5(A), 7.1(1), 7.2.

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28 F.3d 1067, 1073 (10th Cir. 1994) (recognizing trial counsel’s failure to file

notice of appeal may “constitute[] a violation of [defendant’s] right to effective

counsel on appeal” excusing procedural bar). Alternatively, viewed as a

trial-level omission, certification counsel’s failure to perfect an appeal from the

certification order was in any event a separate instance of allegedly deficient

representation, distinct from the certification process itself that would have been

the subject of the interlocutory appeal counsel failed to take. Thus, it would have

been open to challenge following final judgment, in the same manner as any other

instance of trial counsel ineffectiveness, without complications relating to

M ooney. 3

      In sum, the district court’s threshold rejection of W ilson’s allegations of

ineffective assistance of appellate counsel, and its consequent disposition of the

petition on the basis of procedural bar, cannot stand on its stated rationale. To

3
       W e note there was also a procedural course available to appellate counsel
to seek direct review of the certification order (without proceeding by way of an
intermediate challenge to certification counsel’s failure to take a timely appeal of
the order) notwithstanding the w aiver-of-appeal problem. The Rules of the Court
of Criminal Appeals provide for an “appeal out of time,” Okla. Stat. Ann. tit. 22,
Ch. 18, App., Rule 2.1(E), which can be pursued in association with a direct
appeal from the final judgment of conviction. See Orange v. Calbone, 318 F.3d
1167, 1170-71 (10th Cir. 2003) (summarizing procedure and also noting it is
“considered part of the direct appeal process under Oklahoma law”). W hile our
review of the case law in Orange “suggest[ed] that an application for a direct
appeal out of time is rarely granted,” id. at 1171, the State has pointed out in its
own briefing here that the procedure has been used to permit belated review of an
order certifying a child for trial as an adult, see C.D.H. v. State, 760 P.2d 843,
844 (O kla. Crim. App. 1988). There is no indication that petitioner’s appellate
counsel made any attempt to invoke this available procedure.

                                          -5-
hold otherwise would be to embrace the notion that one act of ineffective

assistance is cancelled out— when it is in fact compounded— by a second act that

forfeits direct review of the first, so that counsel ineffectiveness that prejudices

the defendant both at the trial level and (through waiver) on appeal is not

remediable.

      W e therefore reverse and remand for further proceedings. W e emphasize

that on remand the district court need not proceed directly to W ilson’s challenge

to certification counsel’s performance. Given the narrow ground of its prior

decision and our reversal thereof here, on remand the court may well begin with

additional consideration of the State’s procedural bar defense and W ilson’s

associated claim of appellate ineffectiveness, neither of which has thus far been

conclusively established or negated. For example, the pertinent procedural

circumstances fleshed out in detail here may alter the court’s view regarding the

availability of the procedural bar defense. If the court reaffirms that the defense

is available, it would still have to determine, de novo, whether the basis for

invoking the bar here, i.e., the absence of any appellate challenge to certification

counsel’s performance, was itself a function of ineffective assistance of counsel

excusing the bar. 4

4
      In this regard, Cargle explained: “If the omitted issue is so plainly
meritorious that it would have been unreasonable to winnow it out even from an
otherwise strong appeal, its omission may directly establish deficient
performance; if the omitted issue has merit but is not so compelling, the case for
                                                                       (continued...)

                                          -6-
      W ilson has requested that in the event of a remand w e direct the district

court to hold an evidentiary hearing on the adequacy of his legal representation in

the certification process. That would be premature. W hile certification counsel’s

performance would be subject to de novo habeas review should the State’s effort

to support procedural bar fail or W ilson’s claim of appellate ineffectiveness

excuse the bar (and, indeed, as noted above, the merit of W ilson’s objections to

certification counsel’s performance could be the dispositive factor in resolving

whether appellate counsel was ineffective), we cannot say at this point that there

are no possible means of resolving the petition without an evidentiary hearing on

the issue. Nor do we consider it appropriate to decide now, in the first instance,

whether the requirements in 28 U.S.C. § 2254(e)(2) for obtaining an evidentiary

hearing— or the grounds for excusing those requirements explained in Williams v.

Taylor, 529 U.S. 420, 430-32 (2000)— are or could be satisfied here.

      W ilson has also filed motions seeking to obtain the complete state court

record of his criminal proceedings and to include it as a supplement to our record.

Given our disposition of this appeal, the motions are denied as moot. Wilson is



4
 (...continued)
deficient performance is more complicated, requiring an assessment of the issue
relative to the rest of the appeal, and deferential consideration must be given to
any professional judgment involved in its omission [assuming it was not simply
an oversight]; of course, if the issue is meritless, its omission will not constitute
deficient performance.” 317 F.3d at 1202. Again, the district court’s review of
the matter w ill be de novo in light of the OCCA’s use of an aberrant standard.
See id. at 1205.

                                          -7-
of course free to ask the district court to include the state court record in the

proceedings on remand.

      The judgment of the district court is REVERSED and the case is

REM ANDED for further proceedings. W ilson’s motions to obtain his state court

record and to include it as a supplement to the appellate record herein are

DENIED as moot.

                                                      Entered for the Court


                                                      Timothy M . Tymkovich
                                                      Circuit Judge




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