Habeas Petitioner's Fifth Amendment, Due Process Claims Rejected
Lee v. Crouse, --- F.3d ----, 2006 WL 1617541 (10th Cir. June 13, 2006)
Two 2254 issues: Wyoming prisoner pleaded guilty to two counts of sexual abuse of a minor.
(1) P claimed that his 5A right against self-incrimination was violated by the trial court, which maxed him out on his sentence, explicitly drawing an adverse inference that he was not amenable to treatment because he elected not to submit to a prosecution requested evaluation before sentencing. The 10th discussed US Sup. Ct. decisions in the 5th Amendment/sentencing context: Estelle v. Smith, 451 U.S. 454 (1981) and Mitchell v. United States, 526 U.S. 314 (1999), and Griffin v. California, 380 U.S. 609 (1965); it reviewed and quoted extensively from the Mitchell dissent; it determined that those cases hewed closely to their facts; and it found that the Supremes have not yet reached the precise issue of whether a sentencing court in a non-capital case may, for purposes other than determining the facts of the offense of conviction, draw an adverse inference from a criminal defendant's refusal to give a statement or cooperate. The 10th found that because there is no “clearly established” federal law prohibiting what the trial court did, the Wyoming S. Ct.’s upholding of the trial court action was not “contrary to” or an “unreasonable application of” clearly established federal law. It denied the petition as not meeting AEDPA’s standard.
(2) One sex abuse count involved an offense occurring before 1997, the second count involved an offense occurring in a date range of before and after 1997. P allegedly admitted the date range during his plea. The prosecutor moved for re-sentencing because the sentence on the first, pre-1997 count was incorrect: the law increased the sentence for abuse offenses in 1997, and the trial court incorrectly applied the post-1997 increase to the pre-1997 offense. At the same time the prosecutor supplemented the record with facts supporting post-1997 dates for the second count. The 10th held no COA on P’s claim that the trial court violated Double Jeopardy and Due Process by allowing the prosecutor to supplement the record with facts supporting the post-1997 date for the offense in the second count during re-sentencing. The 10th found that DJ was not implicated–there was no issue of successive prosecutions or multiple punishments for the same offense. It also found that although a supplementing of the record at re-sentencing may not have been kosher, P’s sentence was not increased, he had already admitted the offense occurred after 1997, and by virtue of the indictment there was probable cause, so no DP violation. (Interestingly, Judge Hartz dissents and would have granted a COA on the DP issue. He pointed out that unlike a conspiracy this offense was not a continuing offense. He found that the facts did not establish P pleaded guilty to the date range–P did not admit the offense occurred anytime within the date range, but only at some time in the range, with that specific time potentially being before 1997. The indictment did not charge the offense, as it could not, as a continuing offense. Thus, P raised a substantial constitutional claim under Apprendi. Hartz would have found a failure to exhaust, but opined that a reasonable jurist might have found no procedural bar.)
Two 2254 issues: Wyoming prisoner pleaded guilty to two counts of sexual abuse of a minor.
(1) P claimed that his 5A right against self-incrimination was violated by the trial court, which maxed him out on his sentence, explicitly drawing an adverse inference that he was not amenable to treatment because he elected not to submit to a prosecution requested evaluation before sentencing. The 10th discussed US Sup. Ct. decisions in the 5th Amendment/sentencing context: Estelle v. Smith, 451 U.S. 454 (1981) and Mitchell v. United States, 526 U.S. 314 (1999), and Griffin v. California, 380 U.S. 609 (1965); it reviewed and quoted extensively from the Mitchell dissent; it determined that those cases hewed closely to their facts; and it found that the Supremes have not yet reached the precise issue of whether a sentencing court in a non-capital case may, for purposes other than determining the facts of the offense of conviction, draw an adverse inference from a criminal defendant's refusal to give a statement or cooperate. The 10th found that because there is no “clearly established” federal law prohibiting what the trial court did, the Wyoming S. Ct.’s upholding of the trial court action was not “contrary to” or an “unreasonable application of” clearly established federal law. It denied the petition as not meeting AEDPA’s standard.
(2) One sex abuse count involved an offense occurring before 1997, the second count involved an offense occurring in a date range of before and after 1997. P allegedly admitted the date range during his plea. The prosecutor moved for re-sentencing because the sentence on the first, pre-1997 count was incorrect: the law increased the sentence for abuse offenses in 1997, and the trial court incorrectly applied the post-1997 increase to the pre-1997 offense. At the same time the prosecutor supplemented the record with facts supporting post-1997 dates for the second count. The 10th held no COA on P’s claim that the trial court violated Double Jeopardy and Due Process by allowing the prosecutor to supplement the record with facts supporting the post-1997 date for the offense in the second count during re-sentencing. The 10th found that DJ was not implicated–there was no issue of successive prosecutions or multiple punishments for the same offense. It also found that although a supplementing of the record at re-sentencing may not have been kosher, P’s sentence was not increased, he had already admitted the offense occurred after 1997, and by virtue of the indictment there was probable cause, so no DP violation. (Interestingly, Judge Hartz dissents and would have granted a COA on the DP issue. He pointed out that unlike a conspiracy this offense was not a continuing offense. He found that the facts did not establish P pleaded guilty to the date range–P did not admit the offense occurred anytime within the date range, but only at some time in the range, with that specific time potentially being before 1997. The indictment did not charge the offense, as it could not, as a continuing offense. Thus, P raised a substantial constitutional claim under Apprendi. Hartz would have found a failure to exhaust, but opined that a reasonable jurist might have found no procedural bar.)
posted by Anonymous at 10:51 AM
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