APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 5:10-CV-01367-F).
John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson, Interim Federal Public Defender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.
Keeley L. Miller, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.
Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.
BRISCOE, Chief Judge.
Appellant Antonio Milton is an Oklahoma state prisoner serving a life sentence
without parole for drug-trafficking-related convictions. After exhausting his state court remedies, Milton filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging, in relevant part, that his counsel on direct appeal was ineffective for failing to assert a claim of ineffective assistance of trial counsel, specifically that Milton's trial counsel failed to inform Milton of a favorable pretrial plea offer. The district court denied Milton's petition, but we granted Milton a certificate of appealability to challenge the district court's ruling on the ineffective assistance of appellate counsel claim. Now, exercising our appellate jurisdiction under 28 U.S.C. § 1291, we conclude that the Oklahoma state courts' resolution of Milton's ineffective assistance claim cannot survive scrutiny under 28 U.S.C. § 2254(d)(1), and that unresolved issues of fact prevent us from completing our own de novo review of the claim. Consequently, we reverse and remand to the district court with directions to conduct an evidentiary hearing on, and to subsequently review on the merits, Milton's ineffective assistance of appellate counsel claim.
Milton's state court proceedings
On May 22, 2007, Milton was arrested as he attempted to flee a suspected drug house in the northeast part of Oklahoma City, Oklahoma. Milton was found to be in possession of a key that fit two locks on the back door of the residence. Parked outside of the residence was an automobile that was registered to Milton and that contained a loaded firearm on the front console, a quantity of marijuana, and a utility bill for the residence. The officers also found papers belonging to Milton in one of the bedrooms in the residence.
Milton's suspected involvement with the drug house led to him being charged in the District Court of Oklahoma County, Oklahoma, Case No. CF-2007-3113, with seven criminal counts. At a pretrial hearing held on June 2, 2008, the trial judge discussed the possibility of a plea bargain and stated on the record that Milton " had the opportunity to plead guilty and receive 23 years on [the pending charges], prior to preliminary hearing and he turned that down." Aplt. Br., Att. 2, Tr. at 16. Milton's trial counsel at the time of the pretrial hearing, Mike Arnett, responded:
" My client has told me that that is the first he ever heard of the 23-year offer that was made in . As neither Mr. Albert [co-defense-counsel] nor myself were his attorneys at the time, we have no way of verifying that but just for the record, he asked that I advise the Court that this is the first he's heard about it today, is that correct, Mr. Milton?"
Id. Milton responded, " Yes." Id. The prosecutor at the time of the pretrial hearing, Ashley Altshulter, asked if he " c[ould] address that just to clear that up." Id. Altshulter continued,
" I'm just reading the notes of Josh McGoldrick[, the former prosecutor in the case]. It is in our file I believe on August 2nd of 07, [Milton] was represented by Joe Reynolds and Mr. McGoldrick offered 25 on Possession With Intent with all other counts to run concurrent and then also to run concurrent with the 20 on the CF-07-3076 case [another criminal case, involving a drive-by shooting, that was pending at that time against Milton in the District Court
of Oklahoma County]. It was before prelim." 
Id. The trial judge responded, " Okay. Well, that's water under the bridge because the State's not making that offer today. Today the State has offered 40 [years] to do and I think that the last offer that I heard was concurrent with 18 [years] to do in the Drive-By Shooting." Id., Tr. at 16-17. The trial judge then discussed the existing plea offer with Milton and confirmed that Milton did not " want to do that." Id., Tr. at 17.
Milton's drug-related case (Case No. CF-2007-3113) proceeded to trial and, on June 4, 2008, a jury convicted Milton of four of the pending counts: trafficking in cocaine base after two or more previous felony convictions, possession of a firearm after two or more previous felony convictions, possession of drug paraphernalia, and possession of a controlled dangerous substance (marijuana) after two or more previous felony convictions. The trial court, in accordance with the jury's recommendations, sentenced Milton to life imprisonment without parole on the trafficking conviction, life imprisonment with the possibility of parole on the possession of firearm conviction, one year of imprisonment on the drug paraphernalia conviction, and ten years' imprisonment on the possession of a controlled-dangerous-substance conviction, with all sentences to be served consecutively to one another.
Milton, represented by a new attorney, Katrina Conrad-Legler, filed a direct appeal raising seven propositions of error. On May 26, 2009, the Oklahoma Court of Criminal Appeals (OCCA) issued an unpublished opinion affirming Milton's convictions and sentences.
On or about August 19, 2010, Milton filed a pro se application for state post-conviction relief, and an accompanying request for an evidentiary hearing, with the District Court of Oklahoma County. Milton argued, in pertinent part, that his appellate counsel rendered ineffective assistance by failing to assert on direct appeal that Milton's trial counsel was ineffective for failing to inform Milton of a plea-bargain offer made by the prosecution prior to the preliminary hearing.
The State of Oklahoma filed a brief in opposition to Milton's application for post-conviction relief. Attached to that opposition brief was an affidavit from Jacob Benedict, the assistant public defender who purportedly represented Milton at the time of the preliminary hearing in Case No. CF-2007-3113. Benedict's affidavit alleged, in pertinent part, as follows:
3. Originally, the State offered a plea agreement that would have provided for Mr. Milton to be sentenced to a term of twenty years imprisonment on a lesser offense in CF-2007-3113 to be served concurrently with Case No. CF-2007-3076 in exchange for his pleas of guilty in both cases. This offer would expire, however, upon the conduct of a preliminary hearing. I communicated this offer to Mr. Milton. Mr. Milton rejected the offer of twenty years imprisonment and requested that he be given a preliminary
hearing on the charges in CF-2007-3113.
4. On October 30, 2007, Mr. Milton was scheduled for preliminary hearing... in Case No. CF-2007-3113. Prior to the start of preliminary hearing, the State offered a plea agreement that would have provided for Mr. Milton to be sentenced to a term of twenty years imprisonment on a lesser offense in CF-2007-3113 to be served concurrently with Case No. CF-2007-3076 in exchange for his pleas of guilty in both cases. The crime alleged in CF-2007-3076 was an 85 percent crime.
5. Prior to the start of preliminary hearing on October 30, 2007, I along with attorney Joe Reynolds, counsel for Mr. Milton in CF-2007-3076, met with Mr. Milton. At that time, the State's offer of twenty years imprisonment was conveyed to Mr. Milton. It was explained to Mr. Milton that this offer would be withdrawn if he proceeded with preliminary hearing. Mr. Milton rejected the State's offer and preliminary hearing was conducted.
Id., Vol. 1, Part 2 at 378.
Milton filed a reply brief arguing, in pertinent part, that " a comparison of [Benedict's] Affidavit, [sic] to the actual trial transcripts of Case No. CF-2007-3113, w[ould] clearly contradict and nullify certain material parts of the information contained in [the] Affidavit. For example, none of the dates and none of the sentences... mentioned in the Affidavit corresponds with the relevant date of 'August 2, 2007' or to the relevant 'plea offer of 23-years, or even 25-years' as ...