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.
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.
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