* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because this petition was filed before April 24, 19 96, the effective date of

the Antiterrorism and Effective Death Penalty Act o f 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. S ee 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 distric t court’s dismissal of his petition for a writ of habeas corpus, brought p ursuant to 28 U.S.C. § 2254, on the ground that his ineffective assistance of couns el claim was procedurally barred. Because petitioner’s claim is not procedur ally barred, we grant a certificate of probable cause 1 and reverse and remand the case for further procee dings. In February 1994, petitioner pleaded guilty to firs t degree sexual assault and received a sentence of ten to fourteen years inthe Wyoming State Penitentiary. He did not appeal his conviction or sentenc e. In March 1995, he filed a petition for post-conviction relief in state distri ct court, alleging that his second trial attorney was ineffective in failing to reveal certain exculpatory evidence contained in an investigative report commissioned b y his first trial attorney. He asserted he would not have pleaded guilty had he kn own of the exculpatory evidence. In response to the government’s claim th at 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 an d an affidavit by the investiga--3-

tor who issued the report. The district court deni ed the petition as procedurally barred, and the Wyoming Supreme Court denied reviewon the same ground. Petitioner then filed this petition for a writ of h abeas corpus, raising the same ineffective assistance of counsel claim. Alth ough the Wyoming state district court’s decision was not in the record, th e federal district court attempted to reconstruct its holding by reviewing petitioner’ s pleadings in the Wyoming Supreme Court. The federal court concluded that th e state court’s procedural bar rested on two grounds: petitioner’s failure to rai se his ineffective assistance of counsel claim on direct appeal, and petitioner’s fa ilure to plead and support his claim with the requisite specificity by detailing t he contents of the investigative report. The district court then denied the petitio n on the ground that it was procedurally barred, and petitioner appealed. We review the district court’s legal conclusions re garding 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 c ounsel claim in a direct state court appeal will not preclude federal habeas corpus revi ew of the claim despite state law characterizing such a failure as a procedural d efault. See also Brewer v.-4-

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 acc ess to the state district court’s file, we cannot determine whether the second groundrelied upon by the district court -- petitioner’s failure to specifically descr ibe the contents of the report -- was a “procedural default” at all, and if so, wheth er it was treated as a default separate from the failure to raise the claim on dir ect appeal. If indeed the state court, in dismissing the petiti on, relied on petitioner’s failure to specify the report’s contents, it is notclear whether this was a determination on the merits, such as a dismissal for failu re to state a claim, see Federated Dep’t Stores, Inc. v. Moitie , 452 U.S. 394, 399 n.3 (1981), or a procedural rul ing similar to a dismissal for failure to plead fraud w ith 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 plea d fraud with particularity generally requires leave to amend). The federal habeas petition in the instant case con tains fairly specific allegations, including purported quotes from two af fidavits of the investigator-5-

who allegedly gave petitioner’s counsel a report co ntaining exculpatory information. The affidavits are not in the federal court record, but may have been provided to the state district court in the post-co nviction proceeding. Additionally, it is difficult to understand how petitioner could be expected to describe with specificity a report he claims has been withheld fr om him by the counsel he accuses of constitutionally inadequate representati on. 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 pet itioner’s trial counsel to produce the allegedly exculpatory investigative rep ort, if it exists, and to testify at a hearing. If necessary the investigator who alleg edly prepared the report can be called to testify. Because the district court erred in finding petitio ner’s ineffective assistance claim procedurally barred, we remand the case for f urther proceedings. We therefore deny petitioner’s motion to expand the re cord on appeal. REVERSED and REMANDED for further proceedings. The mandate shall issue forthwith. Entered for the Court James K. Logan Circuit Judge