TENTH CIRCUIT DECISIONS
SEPTEMBER 2004
Motion to Vacate Sentence (28 U.S.C. § 2255) - Second or Successive, New Constitutional Rule Made Retroactive by the Supreme Court
Blakely - Not Made Retroactive by Supreme Court
Leonard v. United States, 04-6198 (September 8, 2004)
Leonard sought authorization under the AEDPA to file a second or successive § 2255 motion, relying on Blakely v. Washington.
HELD: (1) Under the AEDPA, a second or successive § 2255 motion is not permitted to be filed in the district court unless the applicant moves in the court of appeals for an order authorizing the district court to consider the application. Leonard has not made a prima facie showing that he satisfies the requirements. A new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. The Supreme Court has not expressly held that the rule announced in Blakely is applicable to the guidelines. Nor has it held that the rule is retroactive to cases on collateral review.
Habeas Corpus (28 U.S.C. § 2254) - Review Standard, Deference
Confrontation Clause - Lilly, Roberts, Crawford Decisions
Retroactivity - Crawford is a New Constitutional Rule, But Is Not Within Watershed Exception, Lilly Also Is Not Retroactive
Brown v. Uphoff, 03-8019 (September 8, 2004)
Brown appeals the denial of his habeas corpus petition. He had been convicted in Wyoming state court of conspiracy to commit murder.
HELD: (1) In reviewing the denial of a habeas petition, the circuit reviews the district court’s legal conclusions de novo and its fact findings for clear error. Because the state court reviewed the merits of the claims, habeas relief is not warranted unless the state court adjudication was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court.
(2) Under Ohio v. Roberts, an out-of-court statement can be introduced against a defendant without violating the Confrontation Clause only if the statement bears guarantees of trustworthiness such that “there is no material departure from the reason for the general rule requiring confrontation.”
(3) Recently, in Crawford, the Supreme Court overruled Roberts to the extent it would allow the admission of testimonial hearsay into evidence against the defendant without prior opportunity for cross-examination. The analytical approach in Crawford is a departure from Roberts and its progeny. But at the time of the decision by the Wyoming Supreme Court, its determination, that Roberts provided the appropriate framework, was accurate.
(4) The circuit agreed with Brown’s argument that the state court decision was contrary to Lilly, because the court considered the voluntariness of the statement as contributing to trustworthiness, and relied on corroborating evidence as another indication of reliability. These factors are not appropriate indicators under the Roberts test. Therefore, the circuit concluded that the state court acted contrary to clearly established federal law.
(5) In the context of summary decisions, this court owes deference to the state court’s results. But this court has not applied the deference rule of Aycox where the state court’s explicit reasoning contravenes Supreme Court precedence.
(6) Before examining whether any violation of the Confrontation Clause occurred, the circuit had to decide whether Crawford should be given retroactive effect. It applied Teague v. Lane. The first question is whether Crawford created a new rule of constitutional law. Prior to Crawford, Roberts provided the framework for determining whether admission of hearsay violates the Confrontation Clause. Roberts and its progeny did not dictate the result in Crawford, and thus, Crawford announces a new rule of constitutional law. Whether the rule of Crawford should be retroactively applied depends on whether it meets one of the two exceptions in Teague. The first exception does not apply because Crawford does not place private conduct beyond the power of law-making authority to proscribe. The court then examined whether Crawford set forth a “watershed rule” of criminal procedure. This exception is narrowly defined. The rule must not only improve the accuracy with which defendants are convicted or acquitted, but also must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Crawford is not like Gideon, which did alter our understanding of basic due process. Confrontation Clause violations are subject to harmless error. The circuit concluded that Crawford is not a watershed decision, and does not retroactively apply to Brown’s habeas petition.
(7) The court determined that the admission of the statement did not violate the Confrontation Clause under earlier precedent. The self-inculpatory nature of the statement, the level of detail, and absence of any offer of leniency indicates that the statement was sufficiently reliable. The circuit relied on its earlier decision in Earnest v. Dorsey.
(8) The circuit concluded that, at the time Brown’s conviction became final, the applicable case law did not dictate the conclusion reached in Lilly, and therefore Lilly announced a new rule, and Lilly also does not meet the exceptions of Teague so as to be applied retroactively. Therefore, Lilly does not affect the circuit’s reliance on its Earnest decision.
Instructions - Review Standard, Infer Knowledge From Sole Possession of Car
Motion to Suppress - Review Standard, Border Patrol Stop, Consent
Obstruction of Justice - Clearly Erroneous Standard, Perjury, Necessary Findings
Blakely Claim - Reviewed for Plain Error, Cannot Satisfy Fourth Prong of Test
United States v. Badilla, 03-2183 (September 8, 2004)
Badilla was indicted for knowingly and intentionally possessing more than 100 kilograms of marijuana with the intent to distribute. He was found guilty after jury trial.
HELD: (1) The court reviews a district court’s decision to give a jury instruction for abuse of discretion, and considers the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law. The challenged jury instruction was permissive because it made clear that the jury may infer knowledge of the marijuana from sole possession of the vehicle, but further stated that the jury was not required to make that inference. The district court did not abuse its discretion in giving that instruction. That instruction did not dilute the standard of proof or shift the burden of proof.
(2) In reviewing a denial of a motion to suppress, the court looks at the evidence in the light most favorable to the government, and the ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo. Badilla’s Fourth Amendment rights were not violated by the stop at the border patrol checkpoint. Border patrol agents may briefly detain vehicles in the absence of any individualized suspicion at reasonably located permanent checkpoints. A checkpoint located within 100 miles from the border is at a reasonable distance therefrom. Once stopped, Badilla voluntarily consented to the canine sniff.
(3) The court reviews the district court’s interpretation of the guidelines de novo and its findings of fact for clear error. A factual finding is not clearly erroneous unless it has no basis in the record. The district court did not err in applying the two- level increase for obstruction of justice under §3C1.1. A district court’s finding must encompass all the factual predicates of perjury. The district court made the requisite findings.
(4) Badilla filed a motion for post-submission consideration challenging the constitutionality of this two-level increase, relying on the recent Blakely decision. Because this issue was not raised before the district court, the circuit reviewed only for plain error. Badilla could not satisfy the fourth prong of the plain error analysis, because the evidence that Badilla lied on the stand was overwhelming.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA
Ineffective Assistance of Counsel - Fail to Inform Court of Improper Juror Contact, Denial of Right to Testify
Procedural Bar - Court Can Bypass Deciding Procedural questions If Case Can Be Dismissed on Merits, Independent and Adequate State Grounds, Counsel on Appeal Is Not Separate From Trial Counsel Where Both From Same Office, Trial Record Cannot Resolve Issue, Remand Procedure
Evidentiary Hearing - AEDPA Standard, Diligence in Developing Facts
Ineffective Appellate Counsel
Cannon v. Mullin, 03-5008 (September 13, 2004)
(Stephen J. Greubel, Tulsa, Oklahoma)
Cannon was convicted in Oklahoma of first degree murder and sentenced to death.
HELD: (1) The AEDPA standard of review applies.
(2) To prevail on trial counsel ineffectiveness, a defendant must satisfy the two-prong test of Strickland v. Washington, demonstrating deficient performance and prejudice. None of Cannon’s ineffectiveness claims were raised on direct appeal. Oklahoma, unlike most jurisdictions, requires a criminal defendant to raise such claims on direct appeal or forfeit them. When questions of procedural bar are problematic and the substantive claim can be disposed of readily, a federal court may exercise its discretion to bypass the procedural issues and reject a habeas claim on the merits. All but two of Cannon’s claims are clearly without merit.
(3) As to the claim of improper juror contact, Cannon was likely rendered ineffective assistance of counsel, because the probability that proof of such juror contact would have entitled him to relief from the trial court. If trial counsel was in fact informed about improper juror communications and did nothing, such inaction would appear to satisfy Strickland’s first prong. As to the prejudice prong, such contact is presumed prejudicial. See Remmer. Although the circuit has declined to apply Remmer in a §2254 proceeding, the issue here is not whether the circuit would find contact prejudicial, but whether the state court would have found prejudice had trial counsel raised the issue. There is no definitive Oklahoma decision adopting or rejecting Remmer. The circuit held that the proper course was to assume that Oklahoma would have found Supreme Court authority persuasive, and would have presumed prejudice from an inflammatory allegation of rape and other alleged improper communications. Whether Cannon has a meritorious claim will depend on whether he is entitled to an evidentiary hearing.
(4) Courts treat claims of denial of the right to testify as an ineffective assistance claim. A criminal defendant has a constitutional right to testify on his own behalf. The decisions rests squarely with the defendant. Such dereliction of duty by counsel would satisfy Strickland’s first prong. The issue of prejudice is of sufficient doubt that it should not be resolved in the first instance by the appellate court.
(5) For a state rule of procedural default to bar habeas review, the state rule must be adequate, and must be applied evenhandedly in the vast majority of cases. In addition, a rule is not adequate to bar a claim of ineffective assistance of trial counsel, unless the state procedures (1) allow the petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel’s performance, and (2) provide a procedural mechanism on direct appeal whereby a petitioner can adequately develop the factual basis of his ineffectiveness claims. Cannon was represented at trial by two attorneys from the Tulsa Public Defender Office. He was represented on direct appeal by another attorney from the same office. The requirement that trial and appellate counsel differ derives from two considerations. First, a defendant, as a layman, will ordinarily not be able to recognize counsel’s errors; and second, a lawyer who renders ineffective assistance at trial will likely be hesitant to raise his own trial inadequacies on appeal. That second consideration still may have force when distinct lawyers handle the trial and appeal, but the two are professionally aligned. Whether trial and appellate attorneys from the same office should be deemed separate will turn on specific circumstances. A statewide public defender’s office with independent local offices, and perhaps even a distinct appellate office, would not raise the same concerns as when trial and appellate counsel work in adjacent rooms. Of particular importance here is the allegation that appellate counsel had a policy of not claiming ineffective assistance by public defenders at trial. The circuit noted that, on direct appeal, appellate counsel raised 24 issues, including six claims of plain error. Often, a claim of ineffective assistance accompanies a claim of plain error. The circuit concluded that Cannon’s trial and appellate counsel were not separate within the meaning of the word used in English v. Cody.
(6) Besides requiring separate counsel for trial and appeal, English also states that Oklahoma’s procedural bar is adequate only if the claim could have been resolved based on the trial record alone, or there existed at the time of direct appeal an adequate procedure to remand specific claims to the district court for supplementation of the record. An out-of-courtroom communication to a juror would ordinarily not be reflected in the trial record. Nor would any discussion between Cannon and his attorney about testifying. Thus, the OCCA could not have resolved the issues based on the trial record alone.
(7) Accordingly, Cannon’s claims could not be procedurally barred unless Oklahoma had in place at the time of his appeal a procedure allowing supplementation of the record. To rely on procedural bar, the state must establish on remand that the Oklahoma law at the time would have allowed him to supplement the trial record with evidence to support his claim. A finding of no procedural bar would mean only that Cannon’s claims are properly before the court, and he must still prove the claims are meritorious.
(8) The AEDPA restricted the authority of federal courts to grant evidentiary hearings in habeas cases. The circuit agreed with the district court that Cannon had not satisfied the AEDPA requirements. The question is whether those requirements apply. The circuit had to determine whether Cannon was diligent in trying to develop the factual record in state court. The Supreme Court in Williams held that diligence depends on whether the prisoner made a reasonable attempt, in light of the information at the time, to investigate and pursue claims in state court. A federal district court should not be required to conduct an evidentiary hearing on a claim when the applicant for relief has not presented evidence, such as affidavits, that would be readily available if the claim were true. Cannon has not included affidavits as to his claim of improper juror contact. But the circuit remanded to the district court the question of whether Cannon was diligent in trying to develop the facts underlying this claim. Cannon’s affidavit provides a firsthand account as to the decision not to testify. The only persons who know the truth of his allegations are Cannon and trial counsel. Cannon requested an evidentiary hearing. The circuit could not see what more he could have done, and thus he satisfies the diligence requirement. Under pre-AEDPA law, he is entitled to an evidentiary hearing. Under pre-AEDPA law, he would have to show that the failure to develop the facts was not attributable to him and that his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.
(9) The AEDPA changed the standard and states that a court shall not hold an evidentiary hearing unless the applicant shows that the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or a factual predicate that could not have been previously discovered through the exercise of due diligence, and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
(10) Appellate counsel is not ineffective for failing to pursue meritless claims. The circuit need only address the failure to pursue the two ineffective-trial-counsel claims that may have merit. Since these are being remanded for further proceedings that may moot the ineffective-appellate-counsel claims, the circuit also remanded the appellate counsel claim.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA
Statute of Limitations - De Novo Review, Pendency of State Post-Conviction Motion, Any Time Allotted by State Tolls Limitation Period
Serrano v. Williams, 02-2268 (September 14, 2004)
Serrano appeals from the denial of his habeas petition filed pursuant to 28 U.S.C. § 2254. The district court determined that Serrano failed to file his petition within the one-year limitations under the AEDPA. The circuit reversed.
HELD: (1) The AEDPA created a one-year limitations period for filing federal habeas corpus petitions, effective April 24, 1996. Because Serrano’s conviction became final before the AEDPA’s effective date, he had until April 24, 1997 to file his § 2254 petition. This one-year period is tolled for the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. Serrano filed his habeas petition on April 21, 1997 in the New Mexico state court. After a hearing on the petition, the state court denied his request for habeas relief. On December 17, 2001, Serrano timely petitioned the New Mexico Supreme Court for a writ of certiorari. The court denied his request on January 9, 2002. Serrano filed his federal habeas petition on January 16, 2002. A United States Magistrate Judge recommended that the state post-conviction review be deemed to have tolled the AEDPA limitation period until January 9, 2002. The Magistrate Judge concluded that Serrano was required to file his federal petition on January 12, the tolling end date plus the three filing days remaining under the original AEDPA period. In his recommendation, the Magistrate Judge found that Serrano’s petition was not timely filed and that no grounds existed for equitable tolling. The district court adopted this recommendation and dismissed Serrano’s petition as untimely.
(2) The court reviews the district court’s dismissal de novo.
(3) The AEDPA provides no definition of “pending” but this circuit has determined that the pendency of a post-conviction application must be interpreted under federal law. This circuit has construed the pendency of a state post-conviction application as encompassing all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies.
(4) Serrano urged that the finality of the Supreme Court’s decision must be extended by three days pursuant to a New Mexico rule. The circuit rejected that argument.
(5) Serrano argued that the Supreme Court’s decision was not final until the mandate issued. This argument was also rejected.
(6) Last, Serrano argued that New Mexico procedural rules allow him 15 days from the Supreme Court’s denial of certiorari to file a motion for rehearing, and that his AEDPA limitations period should remain tolled for those 15 days. The circuit agreed. Any time allotted by the state for appeals will toll the limitations period regardless of whether a petitioner actually appeals a denial of a post-conviction application. See Gibson. Other circuits have similarly held that the time allowed for appeals tolls AEDPA limitations period even if no such filing is made. The denial of the petition for certiorari, under New Mexico law, is deemed to be within the rule providing for motions for rehearing. To hold otherwise would create a choice between directly filing a habeas petition within the AEDPA time limit, or attempting to extend this limit by filing a state motion for rehearing that may result in either forfeiture or dismissal of the federal petition. In such situation, petitioners will understandably turn directly to federal relief, and the state rehearing remedy will go unexhausted. Based on circuit precedent, New Mexico law, and the rule for rehearing, the circuit concluded that the AEDPA limitations period should have been tolled for the 15 days during which Serrano could have filed a motion for rehearing with the New Mexico Supreme Court. Therefore, the petition was timely filed and the case was remanded to the district court for consideration of the issues on the merits.
Motion to Suppress - Review Standard
Warrantless Entry - Consent by Third Party With Authority (Apparent or Actual)
Search - Scope of Consent
Consent - Voluntary Though Guns Had Been Drawn and Occupants Patted Down
United States v. Kimoana, 03-4023 (September 15, 2004)
Kimoana was convicted of felon in possession of a firearm.
HELD: (1) When reviewing a district court’s denial of a motion to suppress, the circuit considers the totality of the circumstances, and views the evidence in the light most favorable to the government. The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewed de novo.
(2) Overnight guests and joint occupants of motel rooms possess reasonable expectations of privacy. The Fourth Amendment prohibits the government from making a warrantless entry into a residence. One of the exceptions to the requirements of a warrant and probable cause is when a search is conducted pursuant to consent. A third-party’s consent to search is valid if that person has either actual authority or apparent authority to consent to the search. Although the circuit reviews for clear error the factual findings underlying the district court’s determination, the circuit reviews de novo the determination of reasonableness of an officer’s belief in the consenter’s authority. Apparent authority rests on mutual use of the property by persons generally having joint access or control for most purposes. When an officer is presented with ambiguous facts related to authority, the officer has a duty to investigate further. Nick said the room was not his. This would be ambiguous, considered in a vacuum, but the totality of the circumstances demonstrates that the officers had sufficient information reasonably to believe Nick’s authority to consent. Although Nick was not the registered property owner or renter, the officer knew that Nick had a key to the room and stayed there with his cousins.
(3) The scope of the search is generally defined by its expressed object. Consent to search for specific items includes consent to search those areas or containers that might reasonably contain those items. The officer asked Nick if he could obtain the keys to the vehicle so that the officer could turn those back to the owner, and Nick said they were in the room somewhere lost. The officer asked if the police could go into the room to retrieve the keys, and Nick said he didn’t care. The district court did not err in finding that Nick had given the officers consent to enter the motel room for the purpose of searching for the vehicle key. The gun was found where a car key would reasonably fit – under a mattress.
(4) Once inside the room, officers did a protective pat down of occupants for weapons, and asked Vake for consent to search the room for weapons. Vake consented. The government must prove the consent was freely and voluntarily given. The officers entered the motel room with guns drawn, raising their voices, and ordering them to put their hands where the officers could see them. After performing a patdown, the officers put their weapons back in the holsters, and immediately asked Vake for consent to search the room. There is support both for the defendant’s view and that of the district court. The district court relied on the fact that the atmosphere in the room became calm and the officers had holstered their weapons. The district court’s finding was “rational.” The circuit gives deference to credibility determinations.
Sufficient Evidence - Review Standard
Conspiracy - Elements
Instructions -Review Standard, Elements of Distribution of Controlled Prescription Drugs, Conjunctive (Outside Usual Course of Medical Practice AND Without Legitimate Medical Purpose ) Not Required
United States v. Nelson, 02-6183 (September 20, 2004)
Nelson was convicted of conspiracy to distribute controlled prescription drugs outside the usual course of professional practice, and money laundering.
HELD: (1) The circuit reviews the record for sufficiency of the evidence de novo. To prove a conspiracy, the government must show two or more persons agreed to violate the law, the defendant knew at least the essential objectives, knowingly and voluntarily became a part of it, and the alleged co-conspirators were interdependent. An agreement constituting a conspiracy may be inferred from the acts of the parties and other circumstantial evidence.
(2) The circuit reviews the district court’s refusal to give a particular jury instruction for abuse of discretion. The reviewing court examines the instructions as a whole to determine if they sufficiently cover the issues. The question of whether the jury was properly instructed is a question of law reviewed de novo. Nelson argues that the jury instruction was in error as the conjunctive, rather than the disjunctive, should have been used. That is, the jury instruction should have required the government to prove an agreement with another to distribute prescription drugs outside the usual course of medical practice and without legitimate medical purpose. The circuit stated it was difficult to imagine circumstances in which a practitioner could have prescribed controlled substances, within the usual course of medical practice, but without a legitimate medical purpose. Also it is difficult to imagine circumstances in which a practitioner could have prescribed controlled substances with a legitimate medical purpose, and yet be outside the usual course of medical practice. But the circuit recognized the limits of its imagination and hesitated to say that there could never be a difference. Instead, the circuit held there was no error in the instruction relying on the wording of the governing regulation. The conjunctive statement contained in the requested instruction was not required. The circuit considers itself bound by Supreme Court dicta almost as firmly as by outright holdings, referring to the 1975 Moore opinion.
Habeas Corpus (28 U.S.C. § 2254) -AEDPA
Discovery - Deliberate Failure to Provide, Sanction of Limit Right to Present Witnesses
Counsel - Defendant is Bound by Actions of Counsel Unless Counsel Was Ineffective
Young v. Workman, 02-6325 (September 20, 2004)
This is § 2254 habeas action. Young was convicted of multiple acts of sexual abuse on a child, all after three prior convictions. At trial, the court would not let him introduce certain witnesses and documents. The court’s ruling was a sanction for his lawyer’s failure to turn over discovery to the state. Young argued that this sanction violated his Sixth Amendment right to present a defense. The district court denied relief, and the circuit affirmed.
HELD: (1) This habeas action was filed after the effective date of the AEDPA, and therefore is governed by its provisions and standard of review.
(2) The Sixth Amendment includes the right to present witnesses in one’s own defense. In presenting such evidence, a defendant must comply with established rules of evidence and procedure. In order to declare Young’s trial unfair, the circuit had to find that the absence of fairness fatally infected the trial. It is the materiality of the excluded evidence to the presentation of the defense that determines this question. Evidence is material if its suppression might have effected the trial’s outcome. On this record, there is no indication that the evidence precluded by the trial court would have created reasonable doubt had it been introduced. When a party has failed to comply with a discovery request, and that failure is willful and motivated by a desire to obtain a tactical advantage, exclusion of the evidence is entirely consistent with the purposes of the Sixth Amendment. A specific finding of willfulness is not necessary. The exclusion of testimony as a sanction did not violate Young’s constitutional rights. Young is bound by the actions of his lawyer, putting to one side the exceptional cases in which counsel has been ineffective.
Illegal Aliens - Transportation, Substantial Risk of Death or Serious Bodily Injury (§ 2L1.1(b)(5)
Guideline Interpretation
Blakely Claim - Raised in a Rule 28(j) Letter, Plain Error Review, Stipulations, Fourth Prong Not Satisfied
United States v. Maldonado-Ramires, 03-1458 (September 29, 2004)
Maldonado pleaded guilty to transporting illegal aliens within the United States. The district court increased his base offense level by 2 levels under §2L1.1(b)(5), finding that the offense conduct had recklessly created a substantial risk of death or serious bodily injury to another person. The district court relied on the fact that the rear seats and seat belts had been removed from the van, and on Maldonado’s mandate, that the passengers remain on the floor of the van at all times. When he lost control of the minivan and it rolled over, one passenger was killed and several others were injured.
HELD: (1) The court reviews the district court’s interpretation of the guidelines de novo and its fact findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.
(2) Maldonado submitted a Rule 28(j) letter citing the Blakely decision. Blakely is not relevant to this issue and since Maldonado did not ask to file a brief raising a proper Blakely claim, the court would not consider it further. But even if the court were to construe the Rule 28(j) letter as raising a Blakely claim, the claim would fail. Maldonado did not assert this claim before the district court, and the court reviews only for plain error (citing Badilla (Tenth Circuit, September 8, 2004)). Even assuming there was a Blakely error that was plain, Maldonado cannot satisfy the fourth prong where the factual predicates were uncontested. The uncontested relevant factual background, and his stipulation that the district court was free to reach its own findings of fact, convinced the circuit that any Blakely error did not affect the fairness, integrity, or public reputation of the judicial proceedings.
(3) Application Note 6 to §2L1.1 makes clear that the reckless conduct, to which the adjustment from subsection (b)(5) applies, includes a wide variety of conduct.