Tuesday, September 27, 2005

Habeas Corpus Developments

1. Anthony H. WARNICK, Petitioner-Appellant,v.Glynn BOOHER, Warden, Respondent-Appellee.
No. 02-5201.2005, WL 2304956
Sept. 22, 2005.

In a Sec. 2241 habeas, the 10th issued a certificate of appealability and remanded to the district court on petitioner’s claim that reduction of good time credits made after his “re-bill” date (date he completed his first sentence in a consecutive sentence term) violated Double Jeopardy.(The prison claimed that it had erroneously credited him with the good time, and was subtracting the credits after an audit). The Court noted that the timing of an adjustment to a term of imprisonment has DJ implications. Even a correction of a clear error may be unconstitutional if the correction comes at a time that violates the defendant's legitimate expectation of finality. Whether petitioner suffered a double-jeopardy violation raises questions of federal constitutional law, but it also raises questions regarding Oklahoma law, and administrative procedures within the Oklahoma Corrections system. The Court remanded for a determination whether petitioner had a legitimate expectation of finality in his completed sentence; the Court seemed to invite re-examination dicta in a 1930 10th Cir.case, White v. Pearlman.

2. Derek D. ANDERSON, Petitioner-Appellant,v. ATTORNEY GENERAL OF KANSAS; David R. McKune, Warden, Lansing Correctional
Facility, Respondents-Appellees.
No. 04-3243.2005, WL 2304966
Sept. 22, 2005.

On remand (10th determined claim not procedurally barred in earlier published opinion), district court’s denial of habeas affirmed. Petitioner claimed ineffective assistance of counsel for failing to investigate and pursue an insanity defense, and claimed he was entitled to an evidentiary hearing. A schizophrenic, he was convicted of aggravated sexual abuse of an employee while receiving treatment at a mental health hospital. He initially was found incompetent to stand trial. The defense at trial was the state’s failure to show BRD that force was applied with intent to gratify a sexual desire. Counsel affirmatively disavowed any defense regarding petitioner’s mental state. The 10th found that counsel made a strategic decision to defend on insufficient evidence rather than insanity: the state was prepared to present testimony regarding petitioner’s deliberate, seemingly rational behavior in the period before the incident to rebut a M’Naghten defense; the jury knew he had mental problems anyway, which the defense could use implicitly to undercut intent; and the facts arguably lent themselves to an argument of no intent to gratify a sexual desire. Also, the 10th found, unconvincingly, that petitioner failed to allege any specific investigation that his trial counsel should have conducted on the insanity defense. Petitioner did not allege that any mental health expert had expressed a view that he met the M'Naghten test at the time of the offense, and did not allege that his counsel failed to determine the views of the professionals who treated and evaluated him. The record did not suggest that such views would have been helpful to an insanity defense.

3. Eric Allen PATTON, Petitioner-Appellant,v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
No. 03-6140. 2005 WL 2293757
Sept. 21, 2005.

Death penalty conviction and sentence upheld.

10th initially reviewed AEDPA standards of review, citing Williams v. Taylor, 529 U.S. 362 (2000) and Early v. Packer, 537 U.S. 3, 8 (2002), noting that its review of petitioner’s issues was made more difficult because the state court decided petitioner’s issues almost exclusively under state law, not federal law, and at times the two standards were very different. The 10th also noted that in this circuit, its AEDPA decisions do not appear entirely consistent in announcing the appropriate standard of review when a 28 U.S.C. § 2254 petitioner has asserted federal and state claims on direct appeal but the state court's ruling cites only state court decisions.

Of petitioner’s nine claims, the 10th found that in claims 1-7 and 9, the state court on review directly applied federal law or applied state law standards at least as favorable to petitioner as the federal standards (so, therefore, treated as though the state court applied federal standards). On claim 8, though procedurally barred because not raised below, the court exercised its discretion and rejected the claim on the merits.

(a). Due Process claim on sufficiency of evidence on element of intent to kill (defense of cocaine induced psychosis). 10th discussed Jackson standard and trial facts showing planning and deliberation, finds rational jury could have rejected defense. No unreasonable application of federal law.
(b). Due process claim re: improperly excluded evidence on intoxication defense is reviewed under AEDPA's deferential standard of review to the state court's adjudication of the claims. That standard is supported by the similarities in the state and federal formulations of standards for granting relief when the trial court excludes evidence. Petitioner and the state both agreed this was the proper standard. The 10th held that petitioner failed to establish that any of the evidence, if admitted, would create reasonable doubt that did not exist without the evidence. The evidence was not material and its exclusion did not violate his due process right to a fair trial.
( c). DP claim regarding prior conviction (witness testified petitioner told her he was an ex-con). Trial court admonished jury to disregard statement. 10th not in “grave doubt” that any trial error was harmless (not so prejudicial that petitioner was deprived of a fundamentally fair trial). Petitioner failed to establish either an overwhelming probability that the jury was unable to follow that curative instruction or a strong likelihood that the effect of the evidence would be devastating to the defendant. These was only one brief reference to the evidence, and the defense was mens rea intoxication defense (so irrelevant to the defense).
(d). No DP violation on the trial court’s manslaughter instruction that included “heat of passion” element. HOP is an element of state law, state is entitled to define the offense, no federal constitutional claim.
(e). DP claim: petitioner argued that First Degree Murder malice aforethought jury instruction that “a design to effect death is inferred from the fact of a killing” established a presumption that, because petitioner killed deceased, he intended to do so, thus unconstitutionally relieving state of its burden of proof. State court review standard of issue was like federal review (looking to instructions as a whole and whether jury was instructed that state has burden of proving every element of the offense), so AEDPA standard of review is whether state application of law was unreasonable.
The 10th upheld the state court decision, in an entirely unconvincing fashion, by a flimsy distinguishing of presumption instructions held to be unconstitutional in other cases. According to the 10th, the saving language in the instruction at issue was inclusion of language that the presumption is not applicable if "the circumstances raise a reasonable doubt whether such design existed." (This issue is the one that most troubled the 10th).
(f). No DP violation on the trial court’s voluntary intoxication instruction ("homicide with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time”), because it reflects the state statute, the court gave other instructions on the effect of intoxication on specific intent. The State is entitled to define the offense; no federal constitutional claim.
(g). No DP issue on claim that duplicative evidence was used for two aggravating circumstances in the penalty phase (first: previous felony conviction for crime of violence; second: offense committed while on parole for a felony conviction). In this circuit, one aggravating circumstance is improperly duplicative of another only if the first aggravator "necessarily subsumes" the other. The fact that two aggravating circumstances rely on some of the same evidence does not render them duplicative. The two factors do not necessarily subsume one another.
(h). No DP issue on claim that sentencing evidence not proven beyond a reasonable doubt (three witnesses testified petitioner robbed them, but failed to ID him. Petitioner argued that the evidence was not proven BRD as required by Ring v. Arizona, 536 U.S. 584 (2002).) The 10th first noted that petitioner did not raise and exhaust the claim in state court and it was procedurally barred; he did not argue exceptions to the bar. The 10th exercised discretion to reach merits. Petitioner’s argument failed for two reasons. First, in Schriro v. Summerlin, 124 S.Ct. 2519, 2526 (2004), the Supreme Court held that Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review. Ring was issued after petitioner’s conviction and sentence had become final on direct review and he may not now challenge his sentence based upon a retroactive application of Ring. Second, petitioner cannot show that the jury relied on this evidence in its finding of guilt and may in fact have rejected it, based on its rejection of the aggravating factor that he presented a continuing threat to society. He did not establish the Brecht standard that the evidence had substantial and injurious effect or influence in determining the jury's verdict.
(I). No DP issue on claim of prosecutorial misconduct. The state standard of review was like the federal, so the 10th applied the deferential AEDPA reasonableness standard of review. The prosecutor’s remarks on voir dire that the presumption of innocence is only a presumption and it does not mean that the defendant is innocent but he is to be presumed innocent, was troubling, but was cured by the trial court’s on the spot instruction on BOP and presumption of innocence. Other instances of alleged prosecutorial misconduct were not borne out by the record (the prosecutor’s argument was not vouching for witnesses, was proper rebuttal, and evidence in the record to support the argument).

4. Marvin B. DAVIS, Jr., Petitioner-Appellant, v.Ray ROBERTS; Attorney General of the State of Kansas; Kansas Department of
Corrections, Respondents-Appellees.
No. 04-3323.2005, WL 2293871
Sept. 21, 2005.

Petitioner completed his underlying sentence. While he was serving his completed sentence, the sentencing law had changed and the DOC was to have re-calculated that sentence according to the new law; a re-calculation would have reduced the sentence. The DOC never re-calculated the sentence before petitioner completed it. Petitioner was convicted of a new offense, and his criminal history for his new sentence was determined in part by the length of his completed sentence. If his completed sentence had been re-calculated, arguably he would have had a lower CH for the new sentence. Petitioner brought his action in federal court under Sec. 2241(provision that would ordinarily apply to his challenge to the failure to convert his 1991 sentence to a lesser term), Sec 2254 (provision that would apply to his challenge that his present sentence is unlawful because it was influenced by the improper execution of his 1991 sentence) and Sec. 1651(a) (coram nobis–provision that would apply to seek relief concerning a sentence he has already served), claiming his original sentence was constitutionally infirm because of the failure of the DOC to re-calculate it, rendering the subsequent sentence unconstitutional.

The 10th upheld the district court’s denial of a cert. of appeal on the 2241 claim on different procedural bar grounds from the district court: the district court lacked jurisdiction to hear the claim because petitioner was no longer in custody under that sentence when he filed for relief in that court.

Under the Sec. 2254 claim, the 10th first dismissed petitioner’s claim that the district court impermissibly re-characterized his issue as being brought under 2254. Then, it addressed the merits. Citing Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the 10th noted that a current sentence enhanced by a prior allegedly unconstitutional expired sentence may be challenged under § 2254, and that a prisoner serving such an enhanced sentence was "in custody." If that conviction is final but unchallenged and is later used to enhance a criminal sentence, the petitioner generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained. The 10th found that the exceptions to this rule ( 1) counsel is not appointed in violation of the Sixth Amendment; or 2) no channel of review is available through no fault of the petitioner, did not apply in this case.

As to the coram nobis claim, the 10th noted that it has long been settled in the circuit that federal courts have no jurisdiction to issue writs of coram nobis with respect to state criminal judgments.

Friday, September 16, 2005

No Bivens Claim for Detainees If Suit Available in State Court

Peoples v. CCA Detention Centers, 2005 WL 2146056 (9/7/05) - The 10th makes it harder for private prison detainees to sue for damages, holding that if there is a cause of action in state court, the prisoner cannot file a constitutional claim in federal court under Bivens.

No Relief Under 18 USC 3582(c)(2) Where Amendments In Effect At Time Of Sentencing

U.S. v. Herrera-Garcia, 2005 WL 2176028 (9/9/05) - Reentry defendant could not get relief pursuant to 18 U.S.C. § 3582(c)(2) for application of the amendments in U.S.S.G. § 2L1.2 that provide for some aggravated felony convictions to get less than the 16 level bump all of such convictions used to get. § 3582(c) provides for application of amendments that lower a sentence after the defendant has already been sentenced. Here, the amendments were in effect when the defendant was sentenced.

Tenth Rejects All Challenges In OK Capital Case

Thornburg v. Mullin, 2005 WL 2146057 (9/05) - Another Oklahoma murder approved under the AEDPA standards of review. With respect to the most interesting issue, the 10th held it was not unreasonable for appellate counsel to fail to raise as an issue that it was unduly prejudicial to have on the wall behind and above the judge a carving of a sword with the words: "an eye for an eye and a tooth for a tooth" [probably not a good rule to live by for a jury deciding whether to kill someone for murdering someone else]. Even though the prosecutor pointed out the sword to the jury, appellate counsel couldn't be faulted for failing to raise the matter when what the carving said was not on the record. A single statement that a key state witness had passed a polygraph did not violate due process. Likewise for the failure to give a voluntary intoxication instruction [such an instruction might have helped the defendant, but the malice aforethought instruction was sufficient] and a lesser included instruction [the evidence didn't support it, according to the Okl. appellate court]. Challenged out-of-court statements were either not hearsay because they were not admitted for the truth of the matter asserted, admissible to prove the declarant's state of mind or harmless. Gruesome photos of charred remains were properly admitted to prove manner of death even if that matter was not disputed. Prosecutorial remarks were either not misleading, proper anticipation of defense impeachment, reasonable inferences from the evidence, proper description of mitigation evidence or not improper vouching. There was little impropriety in the prosecutor asking for justice for the victims, suggesting the verdict affected the community and noting mass murder is one of the problems of society. The improper mischaracterization of the evidence, eliciting of irrelevant testimony, giving a personal opinion on the appropriateness of the death penalty and asking the jury to kill the defendant to keep him off the streets when the jury could have given a life without parole sentence cumulatively were not prejudicial enough to overturn the state court's opinion on the matters. The victim impact evidence appeared to be admissible under Payne v. Tennessee, 591 U.S. 808, 827 (1991). It was okay that the d.ct. did not specifically list intoxication and brain damage as possible mitigating factors. The failure of counsel to request a voluntary intoxication instruction was objectively reasonable strategy.

KS Agg Battery a COV for Reentry Sentencing

U.S. v. Treto-Martinez, 2005 WL 2145840 (9/7/05) - Kansas aggravated battery is a crime of violence under § 2L1.2(b)(1)(A). Importantly for purposes of other prior battery convictions, the 10th noted that not all physical contact performed in a rude, insulting or angry manner satisfies the physical force element requirement of § 2L1.2(b)(1)(A). But, the 10th held "all intentional physical contact with a deadly weapon done in a rude, insulting or angry manner" does constitute the requisite physical force. Such conduct at least amounts to threatened use of physical force. The 10th also held that any physical contact "whereby great bodily harm, disfigurement or death can be inflicted" constitutes at least threatened use of physical force under § 2L1.2(b)(1)(A). The non-constitutional Booker error fails the 10th's plain error reversal standard.

Colo. 3rd-degree Assault a COV under USSG 4B1.2

U.S. v. Paxton, 2005 WL 2176031 (9/9/05) - Colorado third degree assault is a crime of violence as defined under U.S.S.G. § 4B1.2(a)(2), even though it could be committed by causing mental, rather than physical, impairment. Conduct that causes mental impairment creates a "serious potential risk of physical injury to another, " especially since the threats that would be third degree assaults must cause more than just fright or shock. Such conduct is likely to incite an exchange that culminates in physical violence. There was harmless non-constitutional Booker error because the d.ct. sentenced the defendant above the lowest end of the guideline range.

Wednesday, September 07, 2005

16-level Enhancement for Prior Offense Improper in Reentry Case

U.S. v. Martinez-Hernandez, -- F.3d --, 2005 WL 2114161 (10th Cir. 9/2/05) - a categorical approach must be applied to the determination whether an illegal re-entry defendant's prior CA conviction for weapons possession constituted a firearms offense under GLs § 2L1.2(b)(1)(A). The CA statute prohibited numerous weapons, including many that are not firearms. The judicial records did not indicate whether the prior conviction involved a firearms offense. Under Shepard, the sentencing court was not permitted to consider the police report, which indicated that the defendant had used a sawed-off shotgun. COA concludes the 16-level enhancement was improperly applied.

Tuesday, September 06, 2005

Witness's Grand Jury Testimony Admissible Despite Crawford Where Defendant Caused Witness's Absence

U.S. v. Montague, 2005 WL 1666109 (7/18/05)(decided earlier and only recently ordered published) - Grand jury testimony by the defendant's wife was admissible under Crawford because there was sufficient evidence to show the defendant intimidated her to exercise her marital privilege to refuse to testify against him. Evidence showed she visited the defendant a number of times, despite a court order prohibiting the defendant's contact with her, there had been prior physical abuse and their children indicated she was afraid of the defendant. It was okay to reach the court's conclusion without asking the wife why she didn't want to testify because she had a right to invoke her privilege not to answer that question. A defendant improperly procuring the absence of a witness creates an exception to Crawford. The case was remanded for resentencing because, over objection, the court unconstitutionally enhanced the sentence based on a judicial obstruction of justice finding.

NM Commercial Burglary Conviction was Generic Burglary for ACCA Purposes

U.S. v. King, 2005 WL 2093031 (8/31/05)--The 10th held the indictment and plea colloquy regarding a prior N.M. commercial burglary conviction established that the prior conviction fit the generic burglary definition for ACCA purposes because the defendant was convicted of burglarizing a "structure." The 10th did not address the argument, supported by a 9th Circuit case, that the relevant documents did not establish that the "structure" was large enough to fit a person. The 10th also ruled that the d.ct.'s improper reliance on photos of the "structure" that were outside the state court record was harmless since the proper documents showed the conviction was a generic burglary.

DUI a Crime of Violence for Career Offender Purposes

U.S. v. Moore, 2005 WL 2083039 (8/30/05) - The 10th holds that felony DUI is a "crime of violence" under USSG 4B1.2 [career offender]. The 10th holds that DUI "presents a serious potential risk of physical injury to another" [the same definition used for ACCA priors] because the dangers of drunk driving are not speculative, but well known, and drunk driving "often" results in injury. The 10th did not consider what the actual odds are that a drunk driver will cause another's physical injury. The 10th agreed with the 5th and 7th Circuits. It disagreed with the 8th Circuit''s contrary conclusion that the "risk" must be similar to that posed by burglary, arson, extortion and the use of explosives. The 10th distinguished the 4B1.2 "crime of violence" definition from 2L1.2's and 18 U.S.C. § 16(b)'s definition of "crime of violence" which require the use of physical "force" not physical "injury." The 10th did remand in this case because the Nevada DUI statute involved allowed a conviction for just sitting in a car drunk, which does not pose a serious potential risk of physical injury. On remand, the d.ct. is supposed to decide whether the proper record indicated the defendant was convicted of driving while drunk or sitting while drunk.