                                                                              [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                         FILED
                                                                  U.S. COURT OF APPEALS
                             ________________________               ELEVENTH CIRCUIT
                                                                        JULY 11 2000
                                                                     THOMAS K. KAHN
                                    No. 98-6110                           CLERK
                             ________________________

                          D. C. Docket No. 95-02553-CV-M


RAYMOND ROBERTS,

                                                               Petitioner-Appellant,

                                          versus

RON SUTTON, Warden,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                                               Respondents-Appellees.
                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                           _________________________
                                  (July 11, 2000)


Before COX and HULL, Circuit Judges, and GEORGE*, District Judge.

COX, Circuit Judge:



  *
       Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by
designation.
      Raymond Roberts appeals the district court’s denial of his 28 U.S.C. § 2254

petition. We vacate and remand.

                                         Background

      Roberts drove the getaway car for an armed robbery of a Shell food mart in

Decatur, Alabama. After awaiting trial for more than 32 months, he was convicted in

Morgan County circuit court of first-degree robbery and sentenced, pursuant to

Alabama’s Habitual Felony Offender Act,1 to life in prison without parole. Appointed

counsel fruitlessly pursued an appeal asserting prejudicial denial of a speedy trial.

      Immediately following the appeal, Roberts (proceeding pro se) sought

postconviction relief under Ala. R. Crim. P. 32. He asserted a host of grounds, which

are listed in the margin.2 The circuit court appointed counsel. On June 15, 1994,

  1
      Ala. Code § 13A-5-9(c)(3).
  2
      Roberts claimed that:
      (1)    The evidence did not suffice to support his conviction;
      (2)    The trial court gave the jury an accomplice-liability instruction that
             unconstitutionally permitted his conviction without the requisite specific intent;
      (3)    The jury instructions shifted the burden of proof from the prosecution to the defense;
      (4)    Prosecutorial misconduct in opening, closing, and off-the-record statements denied
             him a fair trial;
      (5)    His trial counsel rendered ineffective assistance because of several unspecified
             omissions;
      (6)    The trial court misled the jury by failing to explain the polling process;
      (7)    His appellate counsel also rendered ineffective assistance by failing to raise the
             issues that Roberts wanted to raise;
      (8)    He was arrested without a proper warrant, because the affidavit upon which the
             warrant rested did not establish probable cause; and
      (9)    His conviction was illegal because the foreperson of the grand jury did not endorse
             the indictment “a true bill.”

                                               2
following a preliminary hearing, the court entered judgment denying relief on all of

Roberts’s claims except those of ineffective assistance of counsel, concluding that the

claims did not require an evidentiary hearing. On July 14, acting pro se, Roberts filed

a notice of appeal from that judgment. The circuit court clerk then assembled a record

of proceedings through the beginning of August, including a transcript of the

preliminary hearing and several affidavits offered in the case, including ones by

Roberts and both of Roberts’s former attorneys, and transmitted it to the Alabama

Court of Criminal Appeals. It is unclear whether this Rule 32 record contained any

items from the record from Roberts’s direct appeal. On August 26, the clerk issued

a letter certificate addressed to the “Clerk of the Court of Criminal Appeals of

Alabama,” stating that the clerk had “this date completed and transmitted herewith to

the appellate court the record on appeal said record consisting of a Clerk’s Record

(Page 01 thru 144) and a Court Reporter’s Transcript (Pages 01 thru 12) for a

total of 156 pages. . .” The clerk sent Roberts a copy of this letter certificate. The

court of appeals assigned this appeal the number 93-1861.

       The circuit court scheduled what was called an evidentiary hearing on the

ineffective-assistance-of-counsel claim on August 23, but ordered that all evidence




       We gather these claims from Roberts’s own description of his Rule 32 petition; the copy of
the Rule 32 petition in our record is illegible.

                                               3
was to be submitted by affidavit, and that petitioner not be brought to the hearing.

What transpired is unknown, since we have no transcript. On October 14, the circuit

court entered a second judgment, denying relief on Roberts’s ineffective-assistance-

of-counsel claims in an opinion that gives no clue as to what happened at the

evidentiary hearing. Roberts appealed again, pro se, on November 15. The circuit

clerk this time assembled a record apparently of what was left in the file (the final

judgment, two handwritten “supplemental affidavits” filed by Roberts, and an

exchange of letters between Roberts and his counsel on direct appeal), without a

transcript of the evidentiary hearing, even though the record includes a transcript

order. Additionally, on November 15, the clerk issued a letter certificate, to the same

Alabama appellate court, certifying that the clerk had “completed and transmitted

herewith to that appellate court the record on appeal by assembling in (a single

volume of 38 pages) . . . the clerk’s record and the reporter’s transcript . . .,” even

though a transcript was not included by the clerk. Again, the clerk sent Roberts a

copy of this certificate. The clerk of the court of criminal appeals assigned this appeal

the number 94-0352.

      Our record contains only one brief from Roberts on appeal. It bears no appeal

number, and it addresses all the issues raised in the Rule 32 petition. The State’s

answer brief also addresses all of the Rule 32 issues, but it bears only the number 94-


                                           4
0352. The Alabama Court of Criminal Appeals affirmed in an opinion with the appeal

number 94-0352, observing that the record contained only two supplemental affidavits

(perhaps the two transmitted upon the second notice of appeal), that this record was

insufficient, and that the insufficiency was Roberts’s fault as appellant. The record

before this court does not disclose what became of Roberts’s first appeal, or the record

that was transmitted with it to the Alabama Court of Criminal Appeals. The 94-0352

opinion does not refer to any other appeal.

       Roberts then filed this petition under 28 U.S.C. § 2254, asserting five grounds

for relief, which we list in the margin.3 The state answered that all the claims were



   3
       (1)     His trial counsel rendered ineffective assistance because
                       (a)     he allowed a statement to be altered into a confession on which the
                               arrest warrant was based,
                       (b)     he did not call Roberts’s codefendant’s sister to testify to Roberts’s
                               innocence,
                       (c)     he did not communicate before trial, and
                       (d)     he did not object to prosecutorial misconduct;
               (2)     The court permitted the jury to convict on evidence not presented because it
                       did not explain the post-verdict polling process to the jury;
               (3)     Appellate counsel rendered ineffective assistance for failing to raise issues
                       urged by Roberts;
               (4)     A detective, testifying to the jury, prejudicially paraphrased Roberts’s
                       voluntary statement; and
               (5)     The indictment was not endorsed “a true bill” by the grand jury foreperson.

        Roberts asserts two other “claims” that are simply arguments that the state Rule 32 courts
erred in their rulings.
        Roberts appears to have written his application for a certificate of appealability under the
mistaken belief that he has asserted in federal court all of the claims that he raised in his Rule 32
proceedings. He has not, at least according to his petition; we list only the claims raised in the
petition.

                                                 5
procedurally barred because Roberts failed to ensure the transmittal of a proper record

on appeal to the Alabama Court of Criminal Appeals. The district court agreed, and

adopting the magistrate judge’s report and recommendation to that effect, it denied

relief.

          Roberts filed a notice of appeal and sought a certificate of appealability to

appeal the district court’s procedural ruling. A single judge of this court construed

Roberts’s application as one seeking a certificate of probable cause to appeal, which

the judge granted. We now know that the judge should not have reconstrued the

application, see Slack v. McDaniel, 120 S. Ct. 1595, 1600 (2000), and as a panel we

reconsider the application. Taking Roberts’s allegations as true — as we must, since

there was no evidentiary hearing and the State has not introduced the trial record to

contradict him — we conclude that Roberts’s claim of ineffective assistance of trial

counsel has enough arguable merit (at least on the present record) for reasonable

jurists to debate.4 We conclude, moreover, that jurists of reason could debate whether

Roberts’s failure to ensure transmission of the record, given the trial clerk’s having

twice sent notice to Roberts certifying that the record in fact had been completed and


   4
         We have not evaluated the merits of any of the other claims; as long as reasonable jurists
would find the merits of at least one procedurally barred claim to be debatable, we may move on and
weigh the merits of the petitioner’s procedural argument to determine if it satisfies the COA
standard. See Slack, 120 S. Ct. at 1604 (“[A] COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right . . . .”) (emphasis added).

                                                  6
transmitted to the appellate courts, is an unexcused procedural default. We therefore

grant Roberts a certificate of appealability to consider whether his claims are

procedurally barred because of the inadequacy of the record presented to the Alabama

Court of Criminal Appeals. This is an issue of law, which we review de novo. See

Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998).

                                     Discussion

      Roberts does not dispute that insufficiency of the appellate record is a regularly

applied procedural default under Alabama law and actually relied upon here. It thus

remains only to determine if Roberts has satisfied either of the two exceptions to the

independent-and-adequate-state-ground doctrine that bars relief on his claims: cause

for the default and prejudice from it, or actual innocence. See Wainwright v. Sykes,

433 U.S. 72, 89-91, 97 S. Ct. 2497, 2508 (1977); Holladay v. Haley, 209 F.3d 1243,

1254 (11th Cir. 2000). Roberts does not argue that he is actually innocent of the

crime, so we have only cause and prejudice to consider.

      “Cause” exists when “some objective factor external to the defense impeded

counsel’s [or here, petitioner’s] efforts to comply with the State’s procedural rule.”

Strickler v. Greene, 119 S. Ct. 1936, 1949 n.24 (1999) (quoting Murray v. Carrier,

477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986)). Since the clerk twice certified the

record had been completed and transmitted, we can only speculate, based on the


                                          7
record before us, as to the reasons that the Court of Criminal Appeals had before it

only part of the Rule 32 proceedings in circuit court. Perhaps the clerk sent out the

certificates but did not deliver all of the record to the appellate court. Perhaps the

court of appeals dismissed the first appeal for want of jurisdiction and returned the

record to the trial court,5 but there is no indication in our record that this happened, or

more importantly that Roberts was notified that part of the Rule 32 record had been

returned. Or maybe clerical error was to blame: the appeals were consolidated without

concomitant combination of their records, or the first appeal fell through the cracks

and disappeared.

       Whatever the reason for this default, the important point is that there is nothing

in the record to suggest that Roberts was responsible for whatever the problem was

with the record in the state appellate court. To the contrary, the record shows that

Roberts had certificates from the clerk certifying that the record had been completed

and transmitted. The record also does not tell us, and the State does not argue, that

Roberts knew or should have known that there was any problem in the form of the

appellate record in the Court of Criminal Appeals. Having been advised by the clerk

that the record had been forwarded, Roberts cannot be faulted for failure to inquire

  5
         We have not been able to determine whether the Court of Criminal Appeals considers itself
to have jurisdiction to consider interlocutory appeals from partial judgments on Rule 32 petitions.
It is plain, however, that some form of the final judgment rule applies to Rule 32 petitions. See
Lawton v. State, 723 So. 2d 826, 827 (Ala. Crim. App. 1998).

                                                8
about transmission of the record. (The State suggests that after his appeal was

dismissed for lack of a complete record, he could have filed a petition for rehearing

before the Court of Criminal Appeals; but Roberts did, and it was denied.) Thus,

whatever the origin of the procedural default, Roberts’s appeal, under the particular

facts here, “was frustrated through no fault of his own.” Alexander v. Dugger, 841

F.2d 371, 374 (11th Cir. 1988). Roberts thus has cause to excuse his default. See id.

      The question still remains, however, whether Roberts can establish that he was

prejudiced. To answer this question, the merits of Roberts’s ineffective assistance

claims must be evaluated, as this circuit has required a petitioner to show that “the

errors at trial [giving rise to the constitutional claim] actually and substantially

disadvantaged his defense so that he was denied fundamental fairness.” Baldwin v.

Johnson, 152 F.3d 1304, 1319 (11th Cir. 1998) (quoting McCoy v. Newsome, 953 F.2d

1252, 1261 (11th Cir. 1992) (in turn citing Murray v. Carrier, 477 U.S. 478, 494, 106

S. Ct. 2639, 2648 (1986))); see also Alexander, 841 F.2d at 374 (implicitly requiring

petitioner to demonstrate that counsel’s ineffective assistance claims had merit). The

district court did not find cause to excuse Roberts’s procedural default, and, therefore,

the district court did not separately address whether Roberts had established prejudice.

Because the district court did not explicitly address this issue, we decline to do so




                                           9
here, preferring that the district court address it in the first instance. See Beavers v.

American Cast Iron Pipe Co., 975 F.2d 792, 800 (11th Cir. 1992).

                                      Conclusion

      For the foregoing reasons, we vacate the district court’s denial of Roberts’s §

2254 petition and remand for further proceedings not inconsistent with this opinion.

      VACATED and REMANDED.




                                           10
