Witnesses - Experts, Daubert Hearing, Rule 702;
Harmless Error;
Appellate Review - Limited Fact Findings by District Court;
Career Offender
United States v. Turner, 01-3049 (April 2, 2002)
Turner was convicted of Hobbs Act robberies, and using or carrying a firearm in relation to these crimes of violence, in violation of 18 U.S.C. § 924(c). A partial latent left thumb print found at the scene of the second robbery was the only physical evidence linking Turner to the two crimes. At sentencing, the court determined that Turner had two prior felony convictions for crimes of violence, and sentenced him as a career offender.
HELD: (1) The court reviews for abuse of discretion the denial of a Daubert hearing, and the district court's decision whether to admit or exclude expert testimony. An abuse of discretion occurs when the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.
(2) Under Rule 702, in effect July 2002, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify in the form of an opinion or otherwise.
(3) In Daubert, the Supreme Court set forth a flexible framework for analyzing the evidentiary reliability of scientific evidence and its admissibility under Rule 702.
(4) Daubert challenges, like other preliminary questions of admissibility, are governed by Rule 104, F.R.Ev.. While the district court has no discretion regarding the actual performance of the gatekeeper function, it possesses latitude in deciding how to test an expert's reliability, and whether or when special briefing or other proceedings are needed to investigate reliability. The most common method of fulfilling the gatekeeper function is the Daubert hearing. In denying the Daubert hearing, the district court had found that fingerprint evidence has been held to be reliable and that counsel could cross-examine the government's witness.
(5) When conducting harmless error analysis, the court must review the record as a whole. The question is not whether, omitting the expert testimony, the record contains sufficient evidence for a jury to convict, but rather, an error is harmless unless the substantial rights of a party are affected. The burden of proving an error harmless falls on the government.
(6) When the circuit undertakes resolution of issues in cases having limited findings by the district court, it will not make those findings itself, because making fact findings is not within the scope of appellate review. Reviewing the record as a whole, any error in arguably improper admission of the detective's testimony on fingerprint results did not affect Turner's substantial rights.
(7) The circuit reviews the district court's interpretation and application of the sentencing guidelines de novo and its fact findings for clear error. Turner's sentence was enhanced because the district court treated his 1992 plea of guilty to felony aggravated escape as a crime of violence for purposes of the career offender guideline, §4B1.1. The circuit has held categorically that an escape always constitutes conduct that presents a serious potential risk of physical injury to another for purposes of the career offender guideline.
Motion to Suppress - Review Standard;
Search and Seizure - Plain View, Consent;
Plain Error Review - Factual Disputes;
Incriminating Statement - Miranda, Spanish-Speaking, Co-Defendant Translated;
Jury - Batson Challenge, Discrimination;
Witnesses - Subpoenas, Fifth Amendment Right, Awaiting Sentence, Invoke Before Jury;
Admission of Evidence - Weight or Admissibility, Original Packaging, Photographs of Exhibits;
Sufficient Evidence - Possession With Intent to Distribute, Joint Occupancy, Mere Presence
United States v. Castorena-Jaime, 01-3061, United States v. Trejo, 01-3067, and United States v. Alvarez, 01-3079 (April 3, 2002).
(David J. Phillips, FPD, Topeka, Kansas for Castorena-Jaime)
On May 15, 2002, a Kansas Highway Patrol trooper was patrolling interstate 70, when he observed a grey Buick traveling in the opposite direction. He measured the speed at 80 miles per hour in a 70 mile per hour zone. Turning around in the median, the trooper caught up with the car and noticed it was missing a side mirror. Based on these traffic violations, he activated his emergency lights and pulled over the car. Two women were in the front seat and a man was lying down in the back. The driver provided a Minnesota title to the car in her name and a California's drivers license. She seemed overly nervous. The trooper wrote a warning citation. While standing next to the vehicle, he visibly checked for evidence of any other criminal activity. He noticed a bundle laying on the floor behind the driver's seat wrapped heavily in tape, and recognized this bundle as containing illegal drugs or currency related to drug trafficking. He asked the man in the back seat, Castorena, what he had in the back seat. Castorena was trying to cover the bundle with trash on the floor. The trooper told him to hand the bundle to him and Castorena did so. The trooper asked if he could open it. The driver, Trejo, responded but her response was inaudible on the tape. The trooper said that she responded affirmatively. He opened the bundle and discovered cocaine. While he dealt with Castorena, he noted the passenger, Alvarez, putting something into or pulling something out of her pants, and he told her to stop. She lifted her shirt and pulled her pants away from her waist to show the trooper that she had not placed any object in her pants. The trooper told the female occupants to lie down in the ditch, and radioed for assistance. The videotape captures only inaudible responses. The trooper found two more bundles in Castorena's pants, and three more bundles in a black purse on the passenger side front floorboard.
HELD: (1) In reviewing the district court's denial of a motion to suppress, the court reviews the evidence in the light most favorable to the government. The court accepts the district court's fact findings unless clearly erroneous. Officers may seize evidence in plain view without a warrant. If the officer was lawfully located in a place from which to plainly view the item, the officer had a lawful right of access to the item, and it was immediately apparent that the seized item was incriminating. An item's incriminating nature is immediately apparent if the officer had probable cause to believe the object was contraband or evidence of a crime. All that is required is a practical, non-technical probability. The circuit agreed with the district court that the bundle's incriminating nature was immediately apparent.
(2) The district court ruled the search of the bundle was permissible under the automobile exception or because Trejo consented. The circuit affirmed based on Trejo's consent. The credibility of witnesses, the weight to be given to and the reasonable inferences drawn from the evidence, fall within the province of the district court.
(3) Trejo argues the district court erred by allowing into evidence her post-arrest statement in violation of Miranda. This is reviewed for plain error because Trejo did not preserve this issue below. The parties disagree over the factual question of whether Trejo understood English or whether she received proper Miranda warnings in Spanish. These are questions of fact that underlie the legal question of whether she waived her rights knowingly and voluntarily. Factual disputes not brought to the attention of the court do not rise to the level of plain error. The circuit could not say that the district court plainly erred by not sua sponte suppressing Trejo's statements. But the circuit did caution the government's law enforcement agents about using co-detainees, particularly co-defendants, to interpret Miranda warnings to a criminal defendant.
(4) Trejo and Alvarez urge that the prosecutor violated Batson by using a preemptory challenge to strike an African-American juror from the panel. The court reviews for clear error the district court's finding of whether the striking party had discriminatory intent. A party's use of a preemptory challenge to exclude a juror based on race violates the Constitution. In Batson, the Supreme Court set forth a three-step procedure for resolving objections to preemptory challenges: the objector must make a prima facie showing that the preemptory challenge is based on race; if the objector meets this burden, the party striking the juror must articulate a race-neutral explanation; and if the reason is race-neutral, the court must determine whether the objecting party has shown purposeful discrimination. The district court followed Batson's three-step procedure. Defendants objected, stating that Foster was a member of a minority race and there was no apparent reason for the challenge so that the inference was that the government excused her on the basis of race. Even though the district court found that the defendants did not state a prima facie objection, it did analyze steps two and three of the Batson inquiry. The prosecutor offered the race-neutral explanation that he struck Foster because she was nervous and distracted, and might be inattentive due to concerns about her work situation. Juror inattentiveness during voir dire is a legitimate basis for a preemptory strike. Distraction caused by employment concerns and nervousness are also factors. Although the circuit affirmed the district court, the circuit encouraged district courts to make explicit factual findings on the record when ruling on Batson challenges. Nonetheless, the district court's ultimate conclusion on discriminatory intent was not clearly erroneous.
(5) The circuit reviews the district court's rulings on subpoenas for an abuse of discretion. Alvarez had subpoenaed co-defendant Castorena. Prior to trial, Castorena had apparently communicated with Trejo that he was going to take full responsibility for the cocaine. Trejo and Alvarez sought to subpoena him to appear at trial. Castorena filed a motion to quash on grounds that he was going to invoke his Fifth Amendment rights. The district court directed Alvarez and Trejo to prepare a list of questions they intended to ask Castorena. Castorena filed an affidavit stating he would decline to answer all questions except his name. At the time of the subpoena, Castorena had entered a conditional guilty plea and was awaiting sentencing. The district court decides in the first instance whether a witness' silence is justified. The court should order a witness invoking his Fifth Amendment rights to answer questions only if it is perfectly clear that the answers cannot possibly tend to incriminate. The judge must liberally construe the privilege in favor of the right it was intended to secure. Castorena was awaiting sentencing at the time he was under subpoena and had entered a conditional guilty plea. If Castorena prevailed on appeal, his testimony at his co-defendants' trial would have incriminated him. Defendants do not have a right to force a witness to invoke his Fifth Amendment privilege before the jury. The district court did not abuse its discretion in refusing to allow defendants to compel Castorena to appear before the jury simply to invoke his Fifth Amendment right.
(6) The court reviews for abuse of discretion any error in admission of evidence, but if no objection is made, review is for plain error. The six bundles the trooper seized were packaged originally in opaque tape. The government introduced evidence of photographs of the bundles in their original condition. The jury was fully informed about the cocaine's original appearance and how the cocaine and packaging came to look like some of the exhibits. The government made clear that it had modified the packaging. The government's failure to produce the cocaine in its original appearance goes to the weight of the evidence and not to its admissibility.
(7) The court reviews sufficiency of the evidence claims de novo. To convict Alvarez of possession with intent to distribute, the government had to prove she possessed a controlled substance, knew she possessed it, and intended to distribute it. Possession may be actual or constructive. The government must show the defendant knowingly held ownership, dominion or control over the object and premises where the contraband was found. Constructive possession may be established by circumstantial evidence, and may be joint among several individuals. In joint occupancy cases, the government must present evidence to show some connection or nexus between a defendant and the contraband. Alvarez's mere presence in the car with the cocaine is insufficient to prove this nexus. However, the government presented additional evidence from which the jury could infer that the black bag was Alvarez's because the other purse clearly belonged to Trejo. And when the trooper thought Alvarez was putting something into her pants, she was removing her identifying documents from the black bag.
Guideline Interpretation - Review Standard, Language Used;
Use of Minor (§3B1.4) - Not Necessary That Minor Be Told Activity is Crime;
Relevant Conduct (§1B1.3) - Reasonable Forseeability, Jointly Undertaken Activity, Review Standard, Burden of Proof;
Obstruction of Justice (§3C1.1) - False Identity
United States v. Tran, 01-2093 (April 4, 2002)
(Michael A. Keefe, FPD, Albuquerque, New Mexico)
The court's opinion of February 27, 2002 is vacated and this new opinion is filed. Appellant's petition for rehearing is denied.
HELD: (1) The court reviews de novo the interpretation of the guidelines or whether the facts found by the district court are insufficient as a matter of law.
(2) The guidelines provide a two-level upward adjustment under §3B1.4 for use of a minor to commit a crime. The district court determined that Tran and his co-defendants employed a 16 year old boy as a driver on a repeated basis. Tran argued there could be no corrupting effect if the adult does not tell the minor that the conduct for which he has been recruited is criminal. Tran's interpretation has no support in the case law, and the circuit refused to go into legislative history where the language of the guideline is clear and unambiguous.
(3) The guidelines provide that relevant conduct, in the case of jointly undertaking criminal activity, includes all reasonable foreseeable acts and omissions of others in furtherance of the jointly undertaking criminal activity that occurred during the commission of the offense of conviction or in preparation for that offense. The court reviews the district court's fact findings as to relevant conduct for clear error, but reviews the ultimate determination of relevant conduct de novo. The burden is on the government to prove by a preponderance that the conduct of co-conspirators is to be attributed to the defendant. A defendant is accountable for the conduct of others that is within the scope of his agreement and reasonably foreseeable by him. In determining the scope of the activity the defendant has agreed to undertake, the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.
(4) Pursuant to §3C1.1, the district court applied the obstruction of justice upward adjustment to Tran's sentence based on his failure to properly identify himself to the magistrate. While providing a false name will not ordinarily warrant an adjustment, Tran's continued failure to identify himself properly at his subsequent court hearings is sufficient to justify the adjustment.
Guideline Interpretation - Review Standard, Statute or Rule;
Physical Restraint of Victim (§3A1.3) - Continuation, Occur During Offense of Conviction or Relevant Conduct;
Appellate Review - Issue Raised in Reply Brief;
Criminal History - Points Based on Sentence Pronounced, Not Served
United States v. Holbert, 00-4068 (April 5, 2002)
Holbert pleaded guilty to possession of a firearm following conviction of a misdemeanor crime involving domestic violence, and was sentenced to 46 months imprisonment. He appeals the district court's application of the 1998 guidelines. He challenges the district court's conclusion that he restrained his wife in the course of the offense under §3A1.3.
HELD: (1) Review is de novo of interpretations of the guidelines.
(2) A two-level enhancement under §3A1.3 is permitted if a victim was physically restrained in the course of the offense. While he physically restrained his wife, Holbert argues that this occurred six weeks prior to the offense of conviction and thus was not in the course of the offense. The district court held there was a continuation between the restraint on August 12 and firearm possession on September 27. This case presents a situation where a defendant committed an offense in addition to the offense of conviction, but charges for the additional offense were dropped as a part of a negotiated plea. Defendant's actions during the additional offense are the subject of this specific offense characteristic adjustment of victim restraint. The case raises the question of whether application of §3A1.3 requires that the restraint of the victim occur during the offense of conviction or whether it may relate to relevant conduct.
(3) The court interprets the guidelines as though they were statute or a court rule. Where the language is clear and unambiguous it must be followed. The guidelines use the phrase "in the course of the offense." The Sixth and Ninth Circuits have held that if the act of restraint is relevant conduct under §1B1.3, then the restraint occurred "in the course of the offense" under §3A1.3. Section 1B1.3 states that unless otherwise specified, adjustments are determined on the basis of various categories of relevant conduct. Section 3A1.3 does not specify otherwise. In the guidelines, the term "offense" includes the offense of conviction and relevant conduct unless a different meaning is specified. If the Sentencing Commission wanted to limit application of §3A1.3, as they did in §3A1.1(a)(hate crime), the Commission would have used similarly restrictive language. The circuit noted that §3A1.1(b), the enhancement for an unusually vulnerable victim, includes relevant conduct and is not restricted to the offense of conviction.
(4) An appellate court will not entertain issues raised for the first time in a reply brief, particularly where, not only did Holbert fail to argue the issue in his opening brief, but expressly conceded it.
(5) Application of §4A1.2(b) was appropriate because a 90 day sentence was imposed. Criminal history points under this guideline are based on the sentence pronounced, not the length of time actually served.
Admission of Evidence - Discretion, Rule 609, Rule 403, Nature of Conviction or Mere Fact of Conviction;
Witnesses - Credibility, Rule 609;
Harmless Error
United States v. Howell, 01-2147 (April 5, 2002)
(Michael A. Keefe, FPD, Albuquerque, New Mexico)
Howell was convicted of two counts of deprivation of rights under color of law in violation of 18 U.S.C. § 242, committed during the course of employment as a correctional officer at the San Juan County Detention Center in Aztec, New Mexico. He was sentenced to 87 months imprisonment, followed by three years of supervised release.
Twelve inmates testified in support of the government's case against Howell. At a pretrial hearing, there was discussion about Rule 609. During the discussion, the prosecutor said that the fact a witness has a prior felony conviction is admissible under Rule 609, but not the nature of the conviction. Defense counsel disagreed. The court held that the testimony should be limited to the fact of the conviction, with the exception as to convictions based on fraud or dishonesty. On appeal, Howell argued that the blanket exclusion of evidence of the nature of the government witnesses' felony convictions without any reference to Rule 403 was not harmless error in this case.
HELD: (1) Rule 609 provides that, for the purpose of attacking the credibility of a witness, evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime is a felony, and if the court determines that the probative value outweighs its prejudicial effect. Rule 609(a)(1). Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment. Rule 609(a)(2). Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
(2) The court reviews the district court's decision to admit or exclude evidence for abuse of discretion. A court abuses its discretion when its decision is based on an error of law. The questions are 1) whether evidence of a prior conviction necessarily includes information about the nature of the conviction or whether the mere fact of conviction is sufficient, 2) whether before admitting such evidence, the court must always conduct a Rule 403 balancing and whether it did so in this case, and 3) if the circuit concludes that the district court erred in excluding the evidence, whether the error requires reversal.
(3) Ordinarily it is improper for the prosecution to examine into details of the crime for which the accused was convicted. Cross examination should be confined to showing the essential facts of the convictions, the nature of the crimes and the punishment. The circuit saw no reason to interpret Rule 609 to permit introduction of evidence of the nature of an accused's prior felony conviction, but not evidence of the nature of the witness's prior felony conviction. The nature of a witness's felony conviction is relevant. For example, evidence of a murder conviction says something very different about a witness's credibility than evidence of a conviction for a minor drug offense.
(4) Rule 609 expressly states that evidence of a felony conviction shall be admitted subject to Rule 403. The Rule 403 balancing is mandatory. Explicit findings are not an absolute requirement. But in this case, the circuit was not confident that the district court conducted the required balancing and just failed to make explicit findings. Instead, the judge made a blanket ruling that the fact and date of the witnesses' felony convictions could be admitted but nothing else, and implicitly determined that no Rule 403 balancing was required. After conducting such Rule 403 balancing, the trial court may determine that evidence of the conviction, or certain aspects of the evidence of that conviction, are properly excluded.
(5) This error is reviewed for harmlessness under Kotteakos. A non-constitutional error is harmless error, unless the error had a substantial influence on the outcome of the trial, or if one is left in grave doubt as to its influence. This is not the typical case where the court evaluates the entire record to determine whether the exclusion of the particular pieces of evidence had a substantial influence on the jury. This is a case where the trial court categorically excluded all reference to the nature of the witnesses' prior felony convictions and did no 403 balancing at all, so that the circuit could not tell the exact nature of the felony convictions or assess their potential influence on the jury's evaluation of the witnesses' credibility. Assuming all such evidence would have been admitted, the circuit had little trouble concluding that its exclusion had a substantial influence on the outcome of the case. The evidence against Howell was not overwhelming. There was little evidence of motive for Howell to order the beating of Stallings, and there was evidence that many inmates had their own motive for beating up Gilmore. The jury deliberated for 17 to 18 hours and then informed the court it was unable to reach a verdict. After going home for the evening, the jury was given an Allen instruction and deliberated approximately an hour and one half more before returning a guilty verdict on both counts. In addition, the vast majority of the evidence in support of the government's case was testimony of inmates with prior felony convictions.
Privacy Act - Statute of Limitations
Harrell v. Flemming, 01-6134 (April 10, 2002)
HELD: (1) Failure to file a Privacy Act claim against the government within the statute of limitations is jurisdictional. Congress waived the sovereign immunity of the United States when it enacted the Privacy Act, but imposed a 2-year statute of limitations. The limitations period began to run when Harrell first became aware of the alleged errors in his presentence investigation report. The limitations period was not extended either by the government's subsequent actions or by his receipt of documents allegedly corroborating his assertions of error.
Habeas Corpus (28 U.S.C. § 2254);
Default - Decided on Merits by State;
Instructions - Sandstrom v. Montana;
Retroactivity - Teague, New Rule, Watershed
Johnson v. McKune, 00-3113 (April 10, 2002)
Johnson was convicted of two counts of first degree murder and sentenced to two concurrent life sentences. His direct appeal was denied. He filed four post-conviction motions in Kansas state court. Several of these raised the issue that a jury instruction pertaining to intent similar to an instruction given at Johnson's trial had been declared unconstitutional by the United States Supreme Court in Sandstrom v. Montana (1979). The Kansas court held the issue had been waived and defaulted. Johnson filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in 1997. The district court found that the Sandstrom issue had not been waived and defaulted, because Sandstrom was not decided until after Johnson's conviction was final in 1977, and because he had raised the issue in his first motion and appealed its denial to the highest state court. However, the district court held that the ruling in Sandstrom was not retroactively applicable on collateral review under Teague v. Lane, and denied habeas relief.
HELD: (1) The circuit agreed with the district court that this claim was not waived or defaulted. The denial of Johnson's first motion served as an adjudication on the merits by the state court. The state court relied on the merits as an alternative basis for its holding.
(2) Sandstrom is premised on the holding of In re Winship, that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. At issue in Sandstrom was a jury instruction quite similar to that given at Johnson's trial, namely "the law presumes that a person intends the ordinary consequences of his voluntary act." The Supreme Court suggested that a reasonable juror might have understood that the presumption was either conclusive, or was a direction to find intent upon proof of the defendant's voluntary actions unless the defendant proved the contrary.
(3) Under Teague, new constitutional rules of criminal procedure will not be applicable to cases which have become final before new rules are announced. To determine whether a rule is new, the court considers whether a state court considering the defendant's claim, at the time of conviction became final, would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. If not, then the rule is new. A rule is new when it breaks new ground or imposes a new obligation on the state or federal government, or if it was not dictated by precedent existing at the time the defendant's conviction became final. The circuit stated it was not convinced that the Sandstrom ruling was dictated or compelled by precedent as contemplated by Teague. While the Court heavily relied on precedent to reach the result, there is no indication that the Court thought that precedent dictated or compelled the result.
(4) Teague forbids retroactive application of a new rule on collateral review unless it falls within one of two narrow exceptions. It is clear that Sandstrom does not place any conduct beyond the state's power to proscribe, as required by the first exception. The second exception covers rules requiring procedures that are implicit in the concept of ordered liberty. This is known as the watershed exception. The circuits are split as to whether Sandstrom falls within the second Teague exception.
(5) In Andrews, 943 F.2d 1152, this circuit considered the rule announced in Beck v. Alabama, that required that the jury in a capital case be permitted to consider a verdict of guilty of a lesser included offense if the evidence supports such conviction. While the Beck rule is without question an important one, the circuit had concluded in Andrews that Beck is not a watershed rule as contemplated by Teague. The second Teague exception is reserved only for rules essential to the fairness of the proceeding.
(6) Application of the Sandstrom rule might have enhanced the reliability or accuracy of Johnson's trial. But as the Supreme Court explained in Tyler v. Cain, to fall within the watershed exception, infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction, and the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. The circuit assumed that the Sandstrom violation met Tyler's first requirement. The circuit found no indicia that the Supreme Court thought the Sandstrom rule met the second requirement in Tyler. Therefore, it held that Sandstrom is not a watershed rule for retroactivity purposes.
Motion to Vacate Sentence (28 U.S.C. § 2255);
Magistrate Recommendation - Timely Filed Objections;
Certificate of Appealability;
Waiver of Appeal - Not Extend to Involuntary Plea Claim or Ineffective Assistance of Counsel
United States v. Clingman, 01-2039 (April 11, 2002)
Clingman was proceeding pro se on appeal and sought a certificate of appealability regarding the denial of his § 2255 motion. He had pleaded guilty to conspiring to possess with intent to distribute more than one kilogram of methamphetamine and was sentenced to 151 months imprisonment. He voluntarily dismissed his direct appeal, and then filed a § 2255 motion arguing that his counsel was ineffective in failing to dismiss the indictment on speedy trial grounds, and in failing to investigate and assert a viable defense that he was charged for conduct he engaged in as a confidential informant. The magistrate recommended denying the § 2255 motion, and the next day entered a supplement to his report advising that, within 10 days, the defendant had to file his objections. The defendant did file objections but later than 10 days. The district court adopted the magistrate's order and denied the motion. The government argued that the defendant waived his right to appellate review by failing to timely file objections.
HELD: (1) The magistrate keyed the running of the 10 day period to when a party is served with a copy of the report. Under Rule 5(b), in effect at the time, service was to be made by mailing to the attorney or the party, and service by mail is accomplished when documents are placed in the U.S. Post Office. There was no certificate of service attached to the magistrate's report, and the circuit could not conclusively determine when the 10 day period for filing objections began to run, and therefore denied the motion to dismiss the appeal.
(2) In order to receive a COA, a defendant must make a substantial showing of the denial of a constitutional right. According to the plea agreement, the defendant waived his right to challenge his sentence, or the manner in which it was determined, in any collateral attack including a § 2255 motion, except if the court departs upward from the sentencing guideline range. Clingman is not challenging his sentence but claiming his guilty plea was involuntary. The waiver in the plea agreement does not bar defendant's ineffective assistance claim. To prevail on ineffective assistance, the defendant must show deficient performance and prejudice. The court's review of the record revealed that the defendant could not prevail on a motion to dismiss on speedy trial grounds, or obtain an acquittal based on the alleged confidential informant defense.
Motion to Vacate (28 U.S.C. § 2255) - Apprendi, First Motion;
Procedural Default - Cause and Prejudice;
Apprendi - Sentence on Multiple Counts (§5G1.2);
Plain Error
United States v. Bailey, 00-6268 (April 18, 2002).
Bailey filed a first motion to vacate sentence pursuant to 28 U.S.C. § 2255, in which he raised an Apprendi claim. Because he neither objected to nor directly appealed the trial court's Apprendi error, he had to show cause to excuse procedural default and actual prejudice resulting from the error.
Bailey was convicted of conspiracy, possession with intent to distribute methamphetamine, distribution of methamphetamine and money laundering. The district court failed to submit the quantity of drugs attributable to Bailey for the jury's determination. Bailey did not object to the instructions. Bailey was sentenced to 286 months imprisonment for the drug convictions.
One year and a day after denial of certiorari, Bailey filed his § 2255 motion, seeking relief on the basis of ineffective assistance of counsel. The motion was untimely. However, the government's court-ordered response neglected the timing issue and argued the merits. The circuit declined to issue a certificate of appealability on the ineffective assistance claim. But in his opening brief, Bailey raised the Apprendi claim. Apprendi had been decided after the district court's dismissal of the § 2255 motion. The circuit granted a COA to determine whether Bailey had procedurally defaulted his Apprendi claim, and if he can show cause and prejudice to excuse such default.
HELD: (1) First, Bailey defaulted his Apprendi claim by failing to object at trial. If he had raised the issue on direct appeal, review would have been for plain error. Under circuit precedent, the trial court's Apprendi error is plain because the court should have sentenced him under 21 U.S.C. § 841(b)(1)(C), providing for a maximum sentence of 20 years where no quantity of methamphetamine is specified. However, the trial court's Apprendi error would not constitute reversible plain error because Bailey's substantial rights were not affected. Pursuant to §5G1.2(d), if the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment under the guidelines. Section 5G1.2(d) is mandatory. Thus, the district court would have been required to impose 20 year terms for each of appellant's drug convictions, and run the sentences consecutively to the extent necessary to produce a combined sentence equal to 286 months.
(2) To obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal. He must show both cause excusing the default and actual prejudice. The circuit need not determine whether Bailey has shown cause if it can conclude he suffered no actual prejudice. Actual prejudice means, not merely that the errors at trial created a possibility of prejudice, but that they work to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension. There was no actual prejudice under the higher standard required to obtain collateral relief.
Instructions - Government Need Not Disprove Every Element of Duress Defense;
Motion for Judgment of Acquittal - Review Standard;
Guideline Interpretation - Review Standard;
Acceptance of Responsibility
United States v. Francis, 00-1429 (April 22, 2002)
(Janine Yunker, FPD, Denver, Colorado)
Francis appealed his conviction for violation of 18 U.S.C. § 1791(a)(2), possession of escape paraphernalia in prison.
In a television show, "America's Most Wanted," Francis was incorrectly described as a leader of the Aryan Brotherhood, a prison gang preaching white supremacy. When Francis was recaptured after an escape and housed in the federal penitentiary in Florence, Colorado, he feared the reaction of African-American prisoners as well as members of the Aryan Brotherhood because he was not actually a member of the gang. In 1997, prison authorities became concerned about growing racial tension in the penitentiary. Three African-American inmates threatened Francis. Francis did not seek the aid of prison authorities because he thought that seeking such assistance would have labeled him a snitch and placed him in further danger. In addition, the special housing units were far from free from violence. Francis did not think that consulting with prison officials was a reasonable alternative. Therefore he planned to escape with the help of co-defendant Haney. They obtained a variety of escape paraphernalia. Two weeks after the initial threat, Francis was shown a note in which an inmate commented that Francis was still considered a target. On the night of October 3, 1997, Francis and Haney gathered the escape paraphernalia and hid in the prison yard. As they hid, Haney tried to convince Francis that an escape attempt was imprudent and that the best solution would be to get caught trying to escape, thereby being placed into disciplinary segregation without having to report the death threats to prison officials. Francis agreed. After two hours of strewing the yard with escape paraphernalia, they were caught. The jury acquitted Francis of attempting to escape, but convicted him of possessing escape paraphernalia. The jury premised the attempted escape acquittal on an express finding of duress.
HELD: (1) The district court did not require the government to disprove every element of the duress defense. Instead, the court instructed the jury, that, if the government proved, beyond a reasonable doubt, the absence of any one of the three elements of duress, the jury must reject that defense. Review is de novo of the propriety of a particular jury instruction. The circuit found no error in the court's jury instruction. Because the three elements of the duress defense are joined by the conjunction "and," rather than the disjunction "or," the circuit concluded that the district court was correct in its instruction.
(2) The court reviews de novo the denial of a motion for judgment of acquittal. It views the evidence in the light most favorable to the government in order to determine if there is substantial evidence from which a jury could have found the defendant guilty beyond a reasonable doubt. The government presented evidence by which a rational jury could have applied the duress defense to the attempted escape, while declining to apply that defense to the possession of escape paraphernalia.
(3) The court reviews the district court's interpretation and application of the sentencing guidelines de novo, and review of the court's factual findings is for clear error. Francis claims the district court did not correctly apply and interpret the law and thus review is de novo. Under §3B1.1, the court is directed to decrease the offense level by two levels if the defendant clearly demonstrates acceptance of responsibility. The adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential elements of guilt. But conviction at trial does not automatically preclude a defendant from consideration for such reduction. For example, if the defendant goes to trial to assert and preserve issues that do not relate to factual guilt, he may be entitled to the reduction. In each instance, a determination that a defendant has accepted responsibility will be based primarily upon pretrial statements and conduct. Francis put the government to its burden of proof, but remained eligible for the §3E1.1(a) reduction. The record demonstrates the district court was aware of its discretion. The district court questioned counsel as to pretrial statements and conduct. The district court did not abuse its discretion.
Instructions - Theory of Defense, Duress Defense Extends to Third Parties, and Is Not Limited to Family
United States v. Haney, 00-1421 (April 22, 2002)
(David Lane, Denver, Colorado)
Haney is Francis' co-defendant. Haney had agreed to help Francis in his attempt to escape. Francis and Haney were charged with possession of escape paraphernalia in prison, and attempted escape. The district court instructed the jury on duress with regard to both counts as to Francis. But as to Haney, the court refused to give a duress instruction on either count.
HELD: (1) The defendant is entitled to jury instructions on any theory of defense finding support in the evidence and the law. The duress defense consists of 1) the threat of immediate infliction of death or bodily harm, 2) the defendant's well-grounded fear that the threat will be carried out, and 3) the defendant's lack of a reasonable opportunity to otherwise avert the threatened harm. Haney cannot meet the elements of the duress defense as described. Haney makes no allegation that he ever feared for his own safety. He proposes an extension of a duress defense, and urges it should encompass defendants who correctly recognize that another individual's safety is at risk. The government essentially conceded that the duress defense could extend in certain circumstances to third parties. The circuit concluded that the duress defense should extend to third parties. Most cases of third party duress involves familial relationships between the defendant and threatened individual, but the circuit rejected a family relationship limitation as unprincipled and unworkable. The court also rejected the notion that the prison context of this case should control the applicability of the duress defense.
(2) The fact that the jury accepted the duress defense in the related context of acquitting Francis of the charge of attempted escape suggests that Haney did indeed offer sufficient evidence to support giving the duress instruction. A jury could have concluded that the threat against Francis was immediate in nature, that Haney actually possessed a well-grounded fear that the threat would be executed, and that neither Haney nor Francis maintained any reasonable alternative to possessing escape paraphernalia. Therefore, the district court should have granted Haney's request for jury instructions on the duress defense.
Motion to Suppress - Review Standard;
Incriminating Statements - Invoke Right to Counsel, Waiver of Right to Counsel, Waiver of Right to Remain Silent;
Instructions - Lesser Included Offense Instructions on Manslaughter;
Manslaughter - Voluntary Intoxication
United States v. Brown, 01-6072 (April 22, 2002)
(Paul Antonio Lacy, Oklahoma City, Oklahoma)
Brown stabbed John Roy in the chest and was indicted on charges of second degree murder in violation of 18 U.S.C. § 1111(a) and § 1153(a), the latter of which deals with murder against another Indian within Indian country. Brown filed a motion to suppress statements he made to the agent, claiming violation of his Miranda rights, because questioning continued after he requested an attorney. The district denied the motion to suppress. Under Edwards v. Arizona, law enforcement officials cannot initiate questioning in the absence of counsel, even if they again advise the suspect of his rights, once a suspect invokes his right to have counsel. The district court had held that Edwards did not apply because Brown's request for counsel had not been clear and unequivocal, and that Brown had knowingly waived his rights prior to the interrogation.
HELD: (1) Upon review of the denial of a motion to suppress, the circuit accepts the district court's findings of fact unless clearly erroneous. When reviewing an invocation of the right to counsel, the court reviews for clear error, the district court's fact findings concerning the words a defendant used in invoking the right to counsel. Whether those words actually invoke the right to counsel is a legal determination reviewed de novo. The Supreme Court has declined to adopt a rule requiring officers to ask clarifying questions when a suspect makes an ambiguous or equivocal statement. In this case, clarifying questions would have been desirable. Nonetheless, such clarifying questions are not required.
(2) In reviewing a district court's denial of a motion to suppress a confession, the court accepts the district court's underlying fact findings unless clearly erroneous, and the ultimate issue of whether a statement was voluntary is a question of law reviewed de novo. A suspect who has been advised of his right against self-incrimination may waive that right, provided the waiver is made voluntarily, knowingly and intelligently. The district court recognized that Brown was intoxicated when he was arrested and first given the warnings, but he was not questioned at that point. Brown was taken back to the crime scene to help recover the knife, but no evidence concerning this activity was admitted at trial. The next morning, the agent came to interrogate Brown, who had slept for several hours and no longer appeared intoxicated. Brown was again given his Miranda warnings. His statements were voluntarily given. Brown was not advised that the victim had died. However, a waiver is not invalid merely because police did not inform the defendant of all the potential charges that could be brought against him.
(3) The district court denied Brown's request for a lesser included offense instruction on involuntary manslaughter. A defendant seeking a lesser included offense instruction must satisfy four criteria: 1) he must make a proper request, 2) the lesser included offense must contain some but not all of the elements of the charged defense, 3) the elements differentiating the two offenses must be in dispute, and 4) the evidence must allow the jury to rationally acquit the defendant on the greater charge and convict on the lesser charge. A defendant is entitled to a lesser included instruction even if the evidence supporting it is weak and depends on an inference of a state of facts that is ascertained by believing the defendant as to part of his testimony and prosecution witnesses on other points in dispute. Brown satisfied the first two elements, as well as the third prerequisite, where second degree murder and involuntary manslaughter both involve the unlawful killing of a human being and the difference is the requisite mens rea. The distinction between involuntary manslaughter and second degree murder is that the former does not require malice aforethought. However, the definitions of malice aforethought and without due care and circumspection use overlapping terminology. Both refer to reckless and wanton behavior. The substantive distinction is the severity of the reckless and wanton behavior. Second degree murder involves reckless and wanton disregard for human life that is extreme in nature, while involuntary manslaughter involves reckless and wanton disregard that is not extreme in nature. In requesting the instruction on involuntary manslaughter, Brown asserted that the death of Roy occurred during an imperfect self-defense.
(4) In looking at the fourth prerequisite for the lesser included offense instruction, the question is whether a jury could rationally convict Brown of second-degree manslaughter and acquit him of second-degree murder. Under § 1112(a), a defendant may commit involuntary manslaughter if he acts in self-defense, but is criminally negligent in doing so. The evidence was sufficient to allow the jury to find that, while Brown was criminally negligent in attempting to defend himself with a knife, he did not act with the extreme reckless and wanton disregard for human life required to support a conviction for second-degree murder. The district court erred in taking the mens rea issue from the jury by refusing to instruct on involuntary manslaughter.
(5) Voluntary intoxication is not a defense to the crime of voluntary manslaughter.
Right to Self-Representation - Waive Counsel, Intelligent Waiver Does Not Mean Wise Choice
United States v. Turner, 01-7035 (April 23, 2002)
(Michael A. Abel, FPD, Tulsa, Oklahoma)
Turner was charged with three counts of tax evasion, two counts of failure to file a tax return. He represented himself. In spite of the district court's repeated admonitions, Turner maintained that he wished to represent himself. The court appointed standby counsel.
HELD: (1) The validity of waiver of right to counsel is reviewed de novo. Underlying fact findings are reviewed for clear error. A lawyer cannot be forced upon a defendant who wishes to waive his right to counsel even if self-representation would be detrimental. A defendant must voluntarily assert his intent to represent himself, he must knowingly and intentionally relinquish the benefits of representation, and the defendant must make this assertion in a timely fashion. The question is whether Turner knowingly and intelligently waived his right to counsel. The trial judge must insure that a defendant's waiver is knowing and intelligently made. There is a presumption that a thorough inquiry should be made. But failure to conduct this inquiry does not require automatic reversal if the surrounding facts and circumstances indicate that the defendant understood his right to counsel and the difficulties of pro se representation. Turner had said he wanted to be represented by counsel who agreed with his view of the tax laws. The trial judge informed Turner that his defense theories made little sense. The record is replete with the district court's numerous attempts to impress upon Turner the inherent difficulties of self-representation. Turner urges that the district court's belief that he was making a bad decision is evidence that his waiver was not intelligently given. The circuit admitted that the use of the word "intelligent" within the standard used to determine an effective waiver of counsel gave the court some pause. Labeling the waiver as intelligent seems to presuppose his decision was a wise choice or the best choice. The district court clearly did not agree that Turner made the optimal decision. However, knowingly and intelligently waiving the right to counsel is different from making a wise decision. In this context, knowing and intelligent means only that he was reasonably informed by the court of the hazards of self-representation and had sufficient understanding of those hazards. The circuit was satisfied that the district court provided Turner with enough information to make an informed, knowing and legally intelligent decision about waiving counsel.
Subpoenas (Rule 17) - Specificity, In Camera Inspection;
Incriminating Statements - Waive Right to Remain Silent, Coercive, Defendant's Mental Capacity;
Admission of Evidence - Discretion, Rule 404(b);
Sufficient Evidence - Review Standard
United States v. Morris, 01-6025 (April 23, 2002)
An undercover FBI agent shot the defendant Morris in the back while Morris was attempting to flee arrest. Morris remained in intensive care for seven days under an around-the-clock security watch. While Morris was in the hospital but out of ICU, FBI agents secured a signed Miranda waiver from him and interviewed him. Morris told them that a friend had informed him the FBI was looking for him in connection with a Texas murder. Morris said he had considered turning himself in, and that he purchased a .22 caliber pistol. Morris filed a motion to suppress his statements, and also a motion in limine to prevent submission of evidence that the FBI was looking for him. In preparation for his defense, Morris requested a Rule 17(c) subpoena for all documents collected by the FBI during the course of its investigation. The district court rejected the motion to suppress statements and motion in limine.
The district court quashed Morris' Rule 17(c) subpoena without reviewing the requested material in-camera. Following a jury trial, Morris was convicted of assaulting the FBI agent, using a firearm in relation to a crime of violence, being a felon in possession, and attempting escape from a lawful arrest for a felony offense.
HELD: (1) The validity of a defendant's waiver of his Fifth Amendment rights is reviewed de novo, with underlying facts reviewed under the clearly erroneous standard. Waiver of one's Fifth Amendment privilege against self-incrimination requires that the individual voluntarily, knowingly and intelligently waive his constitutional privilege. The environment created by the FBI, having been shot twice, taking heavy pain medication, having little contact with the outside world while in the hospital, may have been implicitly coercive. However, the circuit held there was no evidence of FBI misconduct here. The waiver must have been made with full awareness of the nature of the right being abandoned and consequences of the decision to abandon it. No doubt a defendant's mental capacity, as affected by pain, pain medications and post-traumatic stress of being shot, is relevant. Morris signed the waiver, was promised nothing, was alert and responsive. His statement was properly admitted.
(2) Admission of evidence under Rule 404(b) is reviewed under an abuse of discretion standard. In his statement, Morris said that, upon hearing that the FBI was looking for him in connection with the murder, he did purchase a .22 caliber firearm. Morris' awareness of the outstanding arrest warrant was highly probative of his motive to flee arrest and use deadly force. The district court took precautions to limit the prejudicial nature of the evidence. References to the outstanding murder warrant were limited, no details of the murder were given to the jury, and the jury was warned that Morris was presumed innocent of the murder charge. The district court did not err in denying the motion in limine.
(3) The suppression of Morris' pretrial subpoena is subject to the abuse of discretion standard. A party seeking a subpoena duces tecum pursuant to Rule 17(c) must show that the documents are evidentiary and relevant, not otherwise procurable reasonably in advance of trial by exercise of due diligence; the party cannot properly prepare for trial without such production and inspection; the failure to obtain such inspection may tend to unreasonably to delay the trial; and application is made in good faith and not as a general fishing expedition. Mr. Morris must prove relevancy, admissibility and specificity. While the information seems highly relevant and is arguably admissible, his request did not meet the specificity requirement set forth in Nixon. Nixon mandates that the party, who is requesting the information, identify the items sought and what the items contain, among other things. Morris is unable to specify what the items he requests contain. A request for an entire file is considered an impermissible fishing expedition. The district court did not err in refusing to conduct an in-camera inspection of the requested materials. Instead, the district court found that Morris' subpoena lacked specificity and constituted an impermissible fishing expedition. Therefore, the court was not required to conduct an in-camera review.
(4) Sufficiency of the evidence to support a verdict is reviewed de novo. The evidence is reviewed in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Even though only one witness testified that Morris was advised he was under arrest and that he pointed a gun at the FBI undercover agent, taken in the light most favorable to the government, this was sufficient to support its convictions.
Restitution - Jurisdiction to Impose After Sentencing;
Sentencing - Modify, Jurisdiction
United States v. Dando, 00-2508 (April 25, 2002)
(Judith A. Rosenstein, FPD, Albuquerque, New Mexico)
Dando appeals a district court order amending his criminal judgment to impose restitution pursuant to 18 U.S.C. § 3664(d)(5), urging the district court lacked jurisdiction to do so. At his plea colloquy, the defendant had acknowledged that he was pleading guilty to a crime of violence and that restitution was mandatory. At the sentencing, the district court did not order restitution because the victim had not yet submitted a restitution request to the court. The judgment and commitment order did not impose restitution. Thirty-six days after the sentencing hearing, the government moved to amend the judgment to include restitution. Seventy-one days after sentencing, the court held a hearing, subsequently held an evidentiary hearing, and later the district court entered an order amending the judgment and ordering the defendant to pay restitution.
HELD: (1) The Mandatory Victims Restitution Act (MVRA) requires the court to order restitution in any case involving a conviction for an offense that constitutes a crime of violence as defined by 18 U.S.C. § 16(a), including misdemeanor assault. The MVRA has procedures pursuant to which the court has authority after sentencing to order restitution and to amend the restitution order. The government failed to notify the court prior to sentencing that the victim's losses were not ascertainable, as mandated by § 3664(d)(5). The district court failed to follow statutory procedures in deferring entry of the restitution order. The district court failed to assert its power at sentencing to defer entry of a restitution order, and failed to enter a restitution order within 90 days of sentencing. The government concedes the district court failed to follow statutory procedures, but contends that a district court is not required to strictly adhere to the procedures to obtain jurisdiction.
(2) The court reviews de novo the district court's assertion of jurisdiction. A district court does not have inherent authority to modify a sentence. The court's authority to order restitution post-sentencing derives solely from 18 U.S.C. § 3664(d)(5). Rules 35 and 36, F.R.Cr.P., do not give the district court authority to order restitution. The notice and time requirements imposed by jurisdictional statutes generally are mandatory. However, procedural requirements are liberally construed. The district court's failure to follow statutory procedural requirements will not deprive the court of jurisdiction if the actions taken provided the functional equivalent of the statutory procedure. The statute's time prescriptions are subject to equitable tolling. Therefore the district court had jurisdiction to issue the restitution order.
Alien - Amended §2L1.2, Aggravated Felony, Classification of Offense
United States v. Saenz-Mendoza, 01-2083 (April 26, 2002)
(Benjamin A. Gonzales, FPD, Albuquerque, New Mexico)
Mendoza was charged with reentering the United States as a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326. The aggravated felony alleged in the indictment was defendant's conviction of child abuse/cruelty toward a child, a class A misdemeanor. The district court decided that the state conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
HELD: (1) The government urges that the defendant failed to preserve this issue for appeal. Even if the circuit agreed, it would invoke its discretionary power to proceed to the merits and review de novo the district court's resolution of this matter because it is purely a question of law central to the merits, the factual record and legal arguments are fully developed, and the issue is important to the public interest.
(2) Section 2L1.2 provides for a base offense level of 8, and a 16-level enhancement if the defendant previously was deported after being convicted of an aggravated felony. Section 2L1.2 explains that the term "aggravated felony" is defined at 8 U.S.C. § 1101(a)(43). That section defines aggravated felony as a crime of violence as defined in 18 U.S.C. § 16 for which the term of imprisonment is at least one year. Section 2L1.2 was amended effective November 1, 2001. The defendant concedes his child abuse conviction qualifies as a crime of violence under 18 U.S.C. § 16, but he urges that because he was convicted of a misdemeanor, the offense cannot be transformed into an aggravated felony under §2L1.2. Other circuits that have addressed this issue have rejected the defendant's argument, and the circuit agreed that an offense need not be classified as a felony to qualify as an aggravated felony in § 1101(a)(43). The court based its view on the plain language of the statute. When a statute includes an explicit definition, the courts must follow that definition. Congress is free to amend the statute. Any alteration to the definition of aggravated felony must come from Congress.
Habeas Corpus (28 U.S.C. § 2254);
Exhaust State Remedies;
Procedural Default - Cause and Prejudice, Ineffective Assistance of Appellate Counsel;
Denial of Right to Direct Appeal
Johnson v. Champion, 01-6183 (April 26, 2002)
Johnson received four consecutive life sentences for four counts of first degree felony murder. The district court denied his § 2254 petition. In December 1984, during a bank robbery, three bank employees and one customer were killed. Other customers were wounded. Johnson and Neill were tried together and each was convicted. The jury recommended death sentences. On appeal, the convictions were reversed based on trying the two together. In 1993, Johnson was separately retried and convicted and sentenced to four life sentences.
HELD: (1) Review of federal habeas claims is circumscribed by the treatment those claims received in state court. If a claim is decided on the merits by the state courts, review is under the standards of review set forth in § 2254(d). If a claim is defaulted on an independent and adequate state procedural ground, the court recognizes the procedural bar ruling and will not address the claim unless the defendant shows cause and prejudice or a fundamental miscarriage of justice. The district court concluded the claim was procedurally barred. To exhaust state court remedies a habeas petitioner must give the state courts a fair opportunity to address the claim. In light of the procedural history the district court committed clear error in finding that Johnson did not exhaust his ineffectiveness claim while pursuing his first application for post-conviction relief. Res judicata has no application in federal habeas, and at any rate, the district court's order was without prejudice and has no res judicata effect. Under the law of the case doctrine, a court should not reopen issues decided in earlier stages of the same litigation. Whether the law of the case doctrine applies to questions of fact, such as whether a particular claim for habeas relief has been exhausted, is unclear. A court is not bound by the doctrine if convinced that a finding is clearly erroneous and would work a manifest injustice.
(2) Even if the court assumed that the ineffectiveness claim was not raised until the second application for post-conviction relief, the court would still conclude the claim should be reviewed on the merits. Generally speaking, the court will not address a defaulted issue unless a defendant can show cause and prejudice or a fundamental miscarriage of justice. Cause must be something external to the petitioner. The failure of the clerk to provide Johnson with a certified copy made compliance with the rules impossible. And the clerk's failure to timely transmit the record to the OCCA constitutes cause for procedural default. As for prejudice, it is clear that Johnson can demonstrate actual prejudice because of the failure to file an appellate brief. He was deprived of his right to a direct appeal.
(3) Generally, a federal appellate court will not consider an issue not passed upon below, but this general rule gives way when the proper resolution is beyond any doubt. Johnson's appellate counsel was negligent in failing to timely file an appellate brief. The state court's finding that Johnson abandoned his appeal was clearly erroneous. A criminal defendant is entitled to effective assistance of counsel on appeal as a matter of right. When counsel negligently fails to perfect an appeal, counsel is ineffective. Prejudice is presumed. The court remanded to the district court with directions to grant a writ of habeas corpus ordering Johnson's release unless state authorities afford him an appeal out of time.
Habeas Corpus (28 U.S.C. § 2254);
Exhaustion of State Remedies;
Mixed Petitions - Proper Approach
Moore v. Captain Schoeman, 01-6016 (April 29, 2002)
Moore appeals the denial of his habeas petition. The court reversed. Petitioner pleaded guilty to possession of a controlled substance after prior conviction of a felony. He was sentenced to 10 years imprisonment, and the sentencing court ordered that the sentence be served in the form of 120 nights in county jail. The state court later determined that petitioner had failed to comply with the requirements of the 120 night jail term and reinstated his 10 year sentence. State habeas proceedings were denied. He filed a motion for post-conviction relief which was granted. The state district court found that Oklahoma law only allows night and weekend incarceration in lieu of a sentence of incarceration, not as an alternative means of serving a prison term, and therefore the sentence was void ab initio. The state district court held that petitioner could either move to withdraw his plea and go to trial, or request resentencing. Petitioner did not accept either choice and did not appeal. Instead, he filed a motion to dismiss sentencing, which was denied, and the OCCA held the appeal was premature. The OCCA said that petitioner must await resentencing. He filed a second motion for post-conviction relief, which was dismissed as procedurally barred, and he did not appeal. Then he filed his federal habeas petition claiming his original sentence was void or illegal, and his counsel had been ineffective in failing to raise the sentencing issue when he negotiated the guilty plea. The magistrate recommended that the void or illegal sentence claim be dismissed on the merits and that the ineffective assistance claim be dismissed without prejudice in order to allow exhaustion of state remedies.
HELD: (1) A habeas petitioner is required to exhaust state court remedies. When a petition contains only unexhausted claims, the district court may dismiss the petition and allow the petitioner to return to state court to exhaust claims, or may deny the petition on the merits. The district court in this case dismissed one on the merits and the other without prejudice. This approach is unauthorized and potentially fatal to petitioner's ability to reassert his unexhausted claim.
(2) Section 2254(b)(2) states that a writ may be denied on the merits notwithstanding the failure of the applicant to exhaust remedies available in the courts of the state. The court gives effect to every clause and word of a statute. The language is controlling where clear and unambiguous. The statute refers to an application rather than individual claims. Under the Supreme Court decision in Rose, a district court must dismiss a resulting mixed petition (containing both exhausted and unexhausted claims), allowing the petitioner to return to state court to exhaust his claims or to amend and resubmit the petition to present only the exhausted claims to the federal court. In Granberry, the Supreme Court held that a prisoner's failure to exhaust state remedies did not act as an absolute bar to consideration of his claims. If it is clear the applicant does not raise a colorable federal claim, the interest of all will be better served if the district court denies the petition. A meritless petition can be denied without reference to the exhaustion issue. Congress incorporated Granberry in the AEDPA § 2254(b)(2). Granberry and Hoxsie (10th Cir.) suggest that the entire petition, rather than individual claims, must be dismissed. The Supreme Court construed the word "application" in Artuz-Bennett (2000). In Artuz, the state had argued that an application could not be properly filed if it contained claims that were procedurally barred. The Supreme Court rejected this argument, and differentiated between an application and claims. The plain language of the statute, as well as its legislative history and prior case law, points to the conclusion that a district court, faced with a petition containing unexhausted claims, may either dismiss the entire petition without prejudice in order to exhaust state remedies, or deny the entire petition on the merits. The circuit was also concerned about the consequences for a petitioner if the district court's order were allowed to stand, given the AEDPA's stringent rule against second or successive § 2254 petitions.