* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 14 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CRAIG THOMAS RODGERS,

Petitioner-Appellant,

v.

JAMES FERGUSON, Warden of the

Wyoming State Penitentiary, and the

ATTORNEY GENERAL of the State

of Wyoming,

Respondents-Appellees.

No. 96-8064

(D.C. No. 95-CV-206-J)

(D. Wyo.)

ORDER AND JUDGMENT*

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 Because this petition was filed before April 24, 1996, the effective date of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214, we apply the prior law to grant petitioner a certificate of

probable cause so that he may bring this appeal. See United States v. Kunzman,

No. 96-1310 at n.2, 1997 WL 602507, at *1(10th Cir. Oct. 1, 1997).

-2-

Petitioner Craig Thomas Rodgers appeals the district court’s dismissal of

his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, on

the ground that his ineffective assistance of counsel claim was procedurally

barred. Because petitioner’s claim is not procedurally barred, we grant a certificate of probable cause1

 and reverse and remand the case for further proceedings.

In February 1994, petitioner pleaded guilty to first degree sexual assault

and received a sentence of ten to fourteen years in the Wyoming State Penitentiary. He did not appeal his conviction or sentence. In March 1995, he filed a

petition for post-conviction relief in state district court, alleging that his second

trial attorney was ineffective in failing to reveal certain exculpatory evidence

contained in an investigative report commissioned by his first trial attorney. He

asserted he would not have pleaded guilty had he known of the exculpatory

evidence. In response to the government’s claim that the ineffective assistance of

counsel claim was procedurally barred, petitioner attempted to show that he did

not discover the existence of the exculpatory report until after his appeal time

lapsed; he apparently attached his own affidavit and an affidavit by the investiga-
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tor who issued the report. The district court denied the petition as procedurally

barred, and the Wyoming Supreme Court denied review on the same ground.

Petitioner then filed this petition for a writ of habeas corpus, raising the

same ineffective assistance of counsel claim. Although the Wyoming state

district court’s decision was not in the record, the federal district court attempted

to reconstruct its holding by reviewing petitioner’s pleadings in the Wyoming

Supreme Court. The federal court concluded that the state court’s procedural bar

rested on two grounds: petitioner’s failure to raise his ineffective assistance of

counsel claim on direct appeal, and petitioner’s failure to plead and support his

claim with the requisite specificity by detailing the contents of the investigative

report. The district court then denied the petition on the ground that it was

procedurally barred, and petitioner appealed.

We review the district court’s legal conclusions regarding procedural

default de novo, affording a presumption of correctness to the state court’s

findings of fact unless not fairly supported by the record. See Sena v. New

Mexico State Prison, 109 F.3d 652, 653 (10th Cir. 1997).

In Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994), we held

the failure to raise an ineffective assistance of counsel claim in a direct state court

appeal will not preclude federal habeas corpus review of the claim despite state

law characterizing such a failure as a procedural default. See also Brewer v.
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Reynolds, 51 F.3d 1519, 1522 (10th Cir. 1995) (same result when, as here, state

denies relief on procedural grounds when incompetent counsel issue first raised in

post-conviction proceedings). Further, without access to the state district court’s

file, we cannot determine whether the second ground relied upon by the district

court -- petitioner’s failure to specifically describe the contents of the report --

was a “procedural default” at all, and if so, whether it was treated as a default

separate from the failure to raise the claim on direct appeal.

If indeed the state court, in dismissing the petition, relied on petitioner’s

failure to specify the report’s contents, it is not clear whether this was a determination on the merits, such as a dismissal for failure to state a claim, see Federated

Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981), or a procedural ruling

similar to a dismissal for failure to plead fraud with particularity, which does not

go to the merits, see, e.g., Thomas v. Consolidation Coal Co., 380 F.2d 69, 83-84

(4th Cir. 1967); Knox v. American Nat’l Bank, 488 F. Supp. 259, 260 (E.D. Mo.

1980), aff’d on other grounds, 654 F.2d 19 (8th Cir. 1981); cf. Shriners Hosps.

for Crippled Children, Inc. v. First Sec. Bank, 835 P.2d 350, 358-59 (Wyo. 1992)

(holding dismissal of complaint for failure to plead fraud with particularity

generally requires leave to amend).

The federal habeas petition in the instant case contains fairly specific

allegations, including purported quotes from two affidavits of the investigator
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who allegedly gave petitioner’s counsel a report containing exculpatory information. The affidavits are not in the federal court record, but may have been

provided to the state district court in the post-conviction proceeding. Additionally, it is difficult to understand how petitioner could be expected to describe with

specificity a report he claims has been withheld from him by the counsel he

accuses of constitutionally inadequate representation. We might uphold a

requirement of specificity in pleading incompetent representation by counsel in

some circumstances, but this is not such a case.

The issue might be resolved easily by requiring petitioner’s trial counsel to

produce the allegedly exculpatory investigative report, if it exists, and to testify at

a hearing. If necessary the investigator who allegedly prepared the report can be

called to testify.

Because the district court erred in finding petitioner’s ineffective assistance

claim procedurally barred, we remand the case for further proceedings. We

therefore deny petitioner’s motion to expand the record on appeal.

REVERSED and REMANDED for further proceedings. The mandate shall

issue forthwith.

Entered for the Court

James K. Logan

Circuit Judge