TENTH CIRCUIT DECISIONS

DECEMBER 1998

Habeas Corpus (28 U.S.C. § 2254) - Incompetency to be Executed, Successive Petitions, Permission to File

Nguyen v. Gibson, 98-5237 (Amended Order, December 4, 1998)

HELD: (1) In November, petitioner filed with the district court an application for habeas relief claiming he was incompetent to be executed and requested a stay of execution scheduled for December 10. The district court transferred the matter to the circuit to determine whether the petitioner was authorized to file a successive habeas petition. The question is whether the petitioner's Ford claim should be treated as a second or successive habeas application. In the Supreme Court decision in Martinez-Villareal, in his first federal habeas application considered on the merits, the petitioner challenged his competency to be executed. The district court dismissed this Ford claim as premature. The Supreme Court held that the petitioner's subsequent reassertion of his Ford claim would not be treated as a second or successive habeas application because in fact there was only one application for habeas relief, and the district court should have ruled on each claim at the time it became ripe. The Supreme Court did not address the issue presented here, whether a federal habeas court should treat a Ford claim, asserted for the first time after a previous denial of federal habeas relief, as a second or successive habeas application. In Nguyen's first habeas application he made no reference to the Ford claim, despite the fact that all the operative facts were known at the time. Therefore his subsequently filed Ford claim should be treated as a second or successive habeas application. The AEDPA requires a petitioner to obtain permission to file a successive habeas petition to assert claims challenging the manner of execution and length of confinement on death row, where federal courts have previously denied habeas relief. Section 2244(b), 28 U.S.C., permits the court to authorize an applicant to file a successive habeas application only if 1) that claim is based upon a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, or 2) based upon a factual predicate that could not have been discovered previously, and 3) which, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the applicant guilty of the underlying offense. The Supreme Court decided Ford in 1986. Petitioner's Ford claim does not challenge the validity of the underlying capital conviction and does not rest upon evidence that could not have been discovered previously. Nguyen can not meet the requirements of the statute. Petitioner may still obtain federal review by the United States Supreme Court, either through review of a state court's determination of competency or through an original habeas proceeding filed with the Court. (Briscoe dissented)

Statutes - Interpretation, Indictment or Information

United States v. Fillman, 98-3036 (December 11, 1998)

Fillman was convicted of possessing explosive materials while under indictment in violation of 18 U.S.C. § 842. He contended the statute does not cover his conduct, because he was not under indictment but rather was charged by information. The circuit concluded Congress intended to prohibit both those charged by indictment and those charged by information from possessing explosives. The court reviewed the district court's interpretation of a statute de novo. The court decision turned on a secondary definition of "indict", meaning to charge with an offense or crime. The term "indictment" used in a statute is often interpreted to include an information. The court looked at related statutes to determine Congressional intent.

Double Jeopardy - Retrial, Mistrial Due to Goading by Prosecution, Review Standard

United States v. Valadez-Camarena, 97-2366 (December 11, 1998)

(Peter E. Edwards, FPD, Las Cruces, New Mexico)

Camarena was charged with conspiracy and substantive drug offenses. In the middle of trial, the government questioned an expert beyond the scope allowed by the judge. Mistrial was granted. Camarena urged a new trial was barred by the double jeopardy clause because the prosecutor had goaded defense counsel into requesting a mistrial. The district court held that was not the case. Camarena was retried and convicted.

HELD: (1) One of the protections afforded by the double jeopardy clause of the Fifth Amendment is protection from repeated prosecutions for the same offense. It usually bars retrial where the prosecution moves for mistrial over objection of the defense, and in certain circumstances prevents retrial where the first trial ended at the defendant's request. Such circumstances include when the prosecutor goads the defendant into requesting mistrial.

(2) There is confusion as to the standard of review, whether de novo or abuse of discretion. But the Supreme Court has made clear that determining whether a prosecutor intended to goad the defense calls for a finding of fact reviewed for clear error. Other issues brought under the double jeopardy clause may be reviewed de novo. A Tenth Circuit prior application of the abuse of discretion standard is not contrary to the Supreme Court decision in Kennedy, where a district court necessarily abuses its discretion if it bases a ruling on a clearly erroneous assessment of the evidence.

Habeas Corpus (28 U.S.C. § 2241) - Execution of Sentence, Residential Substance Abuse Treatment Program, 18 U.S.C. § 3621(e);

Statute - Interpretation, Agency Regulation

Martinez v. Flowers, 98-6241 (December 14, 1998)

The district court denied Martinez' § 2241 petition for habeas corpus relief. The BOP refused to grant him a one year statutory sentence reduction upon completion of a residential substance abuse treatment program. As an incentive for completing substance abuse treatment, § 3621(e) of the Violent Crime Control and Law Enforcement Act of 1994 provides that the period a prisoner convicted of a non-violent offense remains in custody after successfully completing a substance abuse treatment program may be reduced by the BOP by one year from the term the prisoner must otherwise serve. At the time of petitioner's interview to determine eligibility to participate in the program, petitioner was told he was ineligible. Petitioner had an INS detainer lodged against him and would be unable to complete a community based program.

HELD: (1) In May 1996, 28 C.F.R. § 550.58 and program statement 5330.10 were amended to exclude from the sentence reduction program individuals who could not complete a community based treatment program. The court did not need to decide whether the BOP could apply this amendment retroactively because, regardless of which version of §550.58 the BOP applied, petitioner was excludable based on a prior conviction for vehicular manslaughter with gross negligence, a homicide under California law.

(2) In reviewing an agency's interpretation of a statute through a formal regulation, the court defers to the agency's interpretation if it is based on a permissible construction of the statute. The statute allows early release if the prisoner was convicted of a non-violent offense. The BOP promulgated a regulation excluding inmates who have prior convictions for homicide, forcible rape, robbery or aggravated assaults. The court must uphold the agency regulation unless it is arbitrary, capricious or manifestly contrary to the statute. The BOP may permissibly exclude inmates from the early release program if they have prior convictions of violent offenses. The statute uses the permissive word "may." This ruling does not conflict with the recent Tenth Circuit decision striking down a different eligibility requirement under § 3621(e)(2)(B) in Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998). A formal regulation is entitled to deference under Chevron whereas an informal program statement is not entitled to the Chevon deference.

(3) The court reviews the government's classification of inmates with prior violent crime convictions under a rational basis standard, as no suspect class or fundamental right is implemented.

Clemency - Review Standard, No Constitutional Right, Procedural Due Process; Preliminary Injunction - TRO, Discretion Standard

Duvall v. Keating, 98-6474 (December 14, 1998)

Duvall, a death row prisoner in Oklahoma, appeals the denial of his request for TRO and preliminary injunction in a § 1983 action. He has exhausted his appeals for state post-conviction and habeas corpus relief. He was scheduled for execution 12:01 a.m. December 17, 1998. He sought clemency with the Oklahoma Pardon and Parole Board. The Board deadlocked on clemency. The Oklahoma Constitution requires a majority vote to recommend clemency. Therefore no recommendation of clemency was forwarded to the governor. Governor Keating has reportedly said on numerous occasions that he will not grant clemency for murderers. Duvall filed this § 1983 action contending that the governor's statements foreclose the possibility of clemency, thereby denying him due process.

HELD: (1) When reviewing a district court's final judgment following bench trial, the district court's findings of fact shall not be set aside unless clearly erroneous and due regard should be given to the opportunity of the trial court to judge the credibility of witnesses.

(2) Although a prisoner has no constitutional right to clemency, a state may provide such right. Under Oklahoma law, the ultimate decision whether to grant clemency is in the hands of the governor, but he can only commute a death sentence upon a favorable recommendation by the Pardon and Parole Board.

(3) The court assumed it had jurisdiction to review the allegations in light of the Supreme Court decision in Ohio Adult Parole Authority v. Woodard. The Woodard court was divided with regard to whether a person has procedural due process rights with respect to a death penalty clemency hearing. Clemency proceedings involve acts of mercy that are not constitutionally required. Minimal application of the due process clause only insures a death row prisoner that he will receive clemency procedures explicitly set forth by state law and that the procedure followed will not be wholly arbitrary. The court could review the procedures, but not the substantive merits of the clemency decision. Having determined Duvall's right to due process had not been violated, there is no basis for his Eighth Amendment violation.

(4) The court reviews denial of a preliminary injunction for abuse of discretion. Denial of a TRO is not generally appealable unless the appellant will suffer irreparable harm. Impending execution brings the case within that exception. Duvall was not entitled to a preliminary injunction or TRO.

Upward Departure - Discretion Standard, Unusualness of Case, Notice of Intent to Depart

United States v. Whiteskunk, 97-1407 (December 16, 1998)

(Michael G. Katz, FPD, Denver, Colorado)

Whiteskunk plead guilty to involuntary manslaughter and was sentenced to 24 months imprisonment. The district court departed upward three levels. The circuit reversed and remanded for resentencing, finding the district court gave an insufficient explanation for the degree of departure.

Whiteskunk's offense level was 14, and she received a two-level downward adjustment for acceptance of responsibility, for an adjusted level 12. With criminal history category I, her guideline range was 10 to 16 months. In departing upward, the district court found that Whiteskunk's conduct exceeded reckless behavior, based upon her blood alcohol content at more than twice the legal limit, her prior conviction for drunk driving, and multiple opportunities to correct her behavior before the accident.

HELD: (1) A sentencing court is permitted to depart from the guidelines if it finds there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration. The district court may not consider forbidden factors. If the factor is encouraged, the court is authorized to depart if the guideline does not already take it into account. If the factor is a discouraged factor or already taken into account, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. The court reviews the decision to depart under an abuse of discretion standard. The court gives no deference to the district court on the question of whether the factual circumstances are permissible factors for departure. The court gives substantial deference on the second question of whether the departure factors remove the defendant from the heartland because that question involves factual conclusions.

(2) If the district court relied on the fact that a death occurred, that would be improper, because the unlawful killing of a human being is an element of involuntary manslaughter under 18 U.S.C. § 1112(a). But even if the court did so, if its sentencing decision rests on other permissible factors, the circuit determines whether the district court would have imposed the same sentence even in the absence of the improper factor.

(3) Recklessness exceeding the guideline standard is a permissible factor for the district court to consider for departure. The fact that the Commission did not say that a departure would be permitted for extreme recklessness, and although other parts of the guidelines contain express provisions for departure, the Commission has said that it did not intend to limit the kind of factors, whether or not mentioned anywhere else, that could constitute grounds for departure.

(4) The court looks to see if the factual circumstances from the vantage point of the district court makes this an atypical case. The district court has a special ability to judge the unusualness of a particular case. There is no abuse of discretion in the holding that this case was outside the heartland.

(5) Review of the sentencing court's degree of departure is deferential. Neither the record nor presentence report includes any explanation for how the district court selected a three level degree of departure. The court gave almost no rationale for its degree of departure.

(6) In light of the remand, it was not necessary to rule on the claim that the district court failed to give notice of intent to depart. On remand, the district court should not construe this decision to preclude the defendant from producing any other evidence that might mitigate the original sentence imposed.

Habeas Corpus (28 U.S.C. § 2254) - Certificate of Appealability, Review

Standard;

Voluntariness - Incriminating Statements, Waiver of Counsel;

Aggravating Circumstances - Continuing Threat, Prior Conviction Aggravator, Heinous and Cruel, Vagueness, Double Jeopardy;

Instructions - Aggravating and Mitigating Circumstances;

Ineffective Assistance of Counsel - Guilt and Penalty Phases, Deficient Performance and Prejudice

Cooks v. Ward, 97-6105 (December 15, 1998)

The rehearing is denied but the original opinion was amended to clarify the holding that Cooks waived his right to counsel under both the Fifth and Sixth Amendment. The original opinion was October 28, 1998.

(Vicki Ruth Adams Werneke, FPD, Oklahoma City, Oklahoma)

Cooks and a co-defendant, Masters, were tried in Oklahoma state court on murder with malice aforethought, felony murder in the commission of first degree rape, and felony murder in the commission of first degree burglary. The jury convicted both men for the murder of Cooks' disabled 87 year old neighbor, Riddling. Riddling suffocated to death after a piece of gauze-like material had been tightly wrapped around her head. Evidence indicated she had been raped and her home ransacked and burglarized. In the penalty phase, the jury found three aggravating factors against Cooks: he was previously convicted of a felony involving the use or threat of violence, Riddling's murder was especially heinous and cruel, and Cooks represented a continuing threat to society. He was sentenced to death. Masters was sentenced to life imprisonment.

Cooks took a direct appeal, represented by the same attorney who represented him at trial. The Oklahoma Court of Criminal Appeals affirmed. Represented by new counsel, Cooks filed a motion for post-conviction relief which was denied and that denial was affirmed on appeal.

HELD: (1) Cooks filed a habeas corpus action in federal court in July 1987. The district court held the petition in abeyance so that Cooks could exhaust state remedies on the issue of error in the instructions on heinous and cruel aggravating circumstance. Cooks did so, and the Oklahoma trial court denied his second application for post-conviction relief. That denial was affirmed. The federal case was reopened February 1994 and Cooks amended that petition in May 1994. The court conducted an evidentiary hearing on ineffective assistance of counsel in August 1995. Then in February 1997, the district court denied Cooks' petition. In light of the AEDPA, the district court granted a certificate of appealability on certain issues. Subsequent to the district court's ruling, the Supreme Court in Lindh v. Murphy held that a certificate of appealability only applies in cases filed after April 24, 1996. The certificate of appealability is not a jurisdictional requirement. Instead the district court or this court must issue a certificate of probable cause. Because Cooks made a substantial showing of the denial of a federal right, the court granted a certificate of probable cause and proceeded to consider Cooks' issues applying pre-AEDPA law.

(2) The court reviews the district court's legal conclusions de novo and fact findings for clear error.

(3) Cooks was arrested and advised of his Miranda rights. He refused to answer questions and requested a lawyer. Later a jailer informed the detective that Cooks wanted to speak with him. The detective again advised Cooks of his Miranda rights. Cooks then made self-incriminating statements. The court reviews the district court's findings as to voluntariness for clear error, but the ultimate issue of voluntariness is subject to de novo review. Cooks' Fifth Amendment right to counsel attached the moment he requested an attorney. If he voluntarily initiated further communication, he would waive his previously invoked right to counsel. This same rule applies in the Sixth Amendment context. Cooks' waiver of counsel and his post-arrest statements were voluntary, knowing and intelligent.

(4) Constitutional validity of aggravating circumstances is a question of law subject to de novo review. Cooks claimed the "continuing threat to society" aggravator is unconstitutionally applied in Oklahoma, because it functions as a catch-all circumstance that fails to narrow the class of individuals eligible for the death penalty. This court has previously upheld the aggravator in the face of a vagueness challenge.

(5) Certain aggravating circumstances may impermissibly overlap and unconstitutional skew the weighing process. But this does not mean that anytime evidence supports more than one aggravating circumstance there is an impermissible overlap. The test is whether one aggravator necessarily subsumes another. The "prior conviction" aggravator focuses on past conduct, while the "continuing threat" aggravator focuses on likelihood of future violent conduct.

(6) Cooks argued that the heinous and cruel aggravator is not sufficiently narrow and the instructions also did not sufficiently narrow the aggravator. The circuit had rejected this argument in Duvall. Oklahoma courts have interpreted this aggravator to require torture and serious physical abuse as evidenced by proof of conscious physical suffering. The state's medical examiner testified that the victim was alive for more than an hour before her death occurred.

(7) Under Oklahoma law a jury may avoid the death penalty even if it finds aggravating circumstances outweigh mitigating circumstances. But state courts are not constitutionally bound to affirmatively structure in a particular way the manner in which juries consider mitigating evidence. The instructions, read as a whole, did not preclude the jurors from giving effect to any mitigating circumstances.

(8) The court reviews jury instructions on mitigation to insure there is no reasonable likelihood the jury applied the instructions in a way that prevented consideration of relevant evidence.

(9) An ineffective assistance of counsel claim presents a mixed question of fact and law reviewed de novo. Petitioner must show deficient performance and prejudice. The court went right to the prejudice prong. The question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. Counsel presented some evidence of intoxication and the evidence against Cooks was overwhelming.

(10) The obligation for effective assistance extends to a capital sentencing proceeding. The court agreed that Cooks' attorney was ineffective at the sentencing phase. He waived opening statement, called no witnesses, and presented no evidence in Cooks' behalf. He only briefly cross-examined two witnesses and did not cross examine the co-defendant. He gave only a generic closing argument. His investigative efforts were minimal. He didn't present evidence regarding mental state, abusive childhood, good behavior during previous incarcerations, and didn't put Cooks on the witness stand to express remorse. This is not a case where the defendant refused to testify or influenced the reasonableness of counsel's actions. Nor could counsel argue that available mitigating evidence conflicted with the trial defense. This is not a case where counsel reasonably investigated the background of the defendant but found no one willing to testify. Here counsel admitted his investigation was limited, and that he should have presented mitigating evidence, and offered no strategy to explain his performance. Cooks was denied effective assistance of counsel during the sentencing stage. Turning to the prejudice prong, the court said that the ineffectiveness did not amount to a denial of counsel under Cronic to make a prejudice showing unnecessary. In evaluating prejudice, the court keeps in mind the strength of the government's case and aggravating circumstances. The court found there was no reasonable probability that the jury would have reached a different result.

Illegal Alien (8 U.S.C. § 1326 - Arrest, Notice, Warrant of Deportation, Instructions, Collateral Challenge to Order of Deportation;

Jury - Waive Right to Jury Determination on Stipulated Elements;

Indictment - Dismissal, Underlying Immigration Proceedings;

Search Warrant - Probable Cause;

Admission of Evidence - Discretion Standard, Prior Inconsistent Testimony;

Fine - Review Standard

United States v. Wittgenstein, 97-2379 (December 16, 1998)

(John V. Butcher, FPD, Albuquerque, New Mexico)

Wittgenstein appeals from her conviction of having been found in the United States without permission after prior arrest and deportation in violation of 8 U.S.C. § 1326.

HELD: (1) The government must prove defendant was an alien who had been arrested, deported, and thereafter found in the United States without the Attorney General's consent for readmission.

(2) The court reviews jury instructions de novo to determine whether as a whole they correctly state the governing law. The circuit decision in Hernandez, addresses the arrest element of § 1326. The "arrest" element's primary concern is procedural fairness, and the hallmark inquiry is whether the defendant had knowledge or notice of a final deportation order. Service provides the most ready proof of notice. The jury instruction should have stated that knowledge or notice of a final deportation order, whether by service of a warrant for deportation or otherwise, provides a sufficient restraint on liberty to constitute an arrest. The court will reverse for instructural error only where it is prejudicial in view of the entire record. A review of the record indicates the court could find harmless error without running afoul of the Fifth and Sixth Amendments concerns that those accused of serious crimes have an actual jury verdict of guilt beyond a reasonable doubt as to every element of the charge. The right to jury trial as to every element of an offense may be waived when the defendant admits an essential element or has stipulated to facts. Wittgenstein admitted she knew the immigration judge had issued a final order of deportation against her and that the INS had issued a warrant for deportation. Having admitted actual notice of the deportation order, to satisfy the arrest element, she waived her right to jury trial with respect to that element.

(3) Whether the district court erred in failing to dismiss the indictment due to alleged violations of due process in the underlying immigration proceedings is a mixed question of law and fact subject to de novo review. To collaterally challenge an order of deportation in a prosecution under § 1326, a defendant must prove the alien exhausted any administrative remedies that may have been available to seek relief against the order, the deportation proceedings out of which the order was issued improperly deprived the alien of the opportunity for judicial review, and entry of the order was fundamentally unfair. The alien must show that he was prejudiced. She was not denied her right to judicial review. Nor can she show that the deportation hearing was fundamentally unfair.

(4) The court also rejected the claim of failure to grant a motion to suppress evidence seized during the search of her residence. To determine whether an affidavit contains sufficient information to support a finding of probable cause for a search warrant, the court considers the totality of the circumstances.

(5) The court reviews admission of evidence for abuse of discretion, and erroneous admission will only be reversible error if it is not harmless. Under Rule 801(d)(1)(a), a prior inconsistent testimony under oath is admissible as substantive evidence, but, even if this were error, there was no prejudice.

(6) The court reviews imposition of a fine within the range set by the guidelines for abuse of discretion. The court accepts fact findings related to ability to pay unless clearly erroneous.

Motion for Acquittal - Discretion Standard;

Possession of Drugs - Constructive, Joint Occupancy

United States v. Valadez-Gallegos, 98-2017 (December 17, 1998)

Gallegos appealed his conviction of possessing a listed chemical knowing or having reasonable cause to believe the listed chemical would be used to manufacture methamphetamine. At the trial, the court denied motion for judgment of acquittal in light of his several inconsistent and incredible stories, the overwhelming smell of perfumed dryer sheets within the truck and other conduct. The court had denied a mistrial when the government introduced testimony under Rule 404(b) concerning a prior stop and arrest.

HELD: (1) The appellate standard of review on motion for acquittal is the same as the trial court's in ruling on the motion. The court reviews the evidence in the light most favorable to the government. The question is whether Gallegos constructively possessed ephedrine. A person has constructive possession when he or she knowingly holds ownership, dominion or control over the object and premises where it was found. The court held the evidence failed to link Gallegos to the narcotics in any way other than presence and proximity which are inadequate to support a conviction. Conflicting or inconsistent statements do not always provide evidence of constructive possession of drugs. Gallegos was a passenger. While there was the smell in the camper there was no odor in the cab. Annotations on the map were not linked to the drug activity. The co-defendant's statement to Gallegos that he didn't know there was heroin creates only an attenuated inference. There were no signs of nervous behavior by Gallegos although the co-defendant showed those signs. Nothing established that Gallegos knew or should have known that black tape may seal a hidden ceiling compartment. The fact that Gallegos spent $400 in two days and did not know the driver except by nickname does not establish the required nexus. The fact that Gallegos was a passenger in another vehicle containing ephedrine created only an inference. This relates to the 404(b) evidence that had been admitted. In instances where there is joint occupancy, constructive possession requires a link or nexus between Gallegos and the contraband.

Motion to Suppress - Review Standard;

Traffic Stop - Reasonable Suspicion

United States v. De La Cruz-Tapia, 97-2376 (December 22, 1998)

(Robert J. McDowell, FPD, Las Cruces, New Mexico)

The district court granted a motion to suppress, holding the facts did not support a reasonable suspicion for the stop. In the government's appeal, the circuit affirmed.

HELD: (1) On appeal of a motion to suppress, the court accepts fact findings unless clearly erroneous. The ultimate determination of reasonableness is reviewed de novo. In examining the totality of the circumstances, common sense and ordinary experience are to be employed. The facts must be viewed in the light most favorable to the prevailing party, in this case, Cruz-Tapia. Unless the district court was clearly erroneous in judging the credibility of Agent Nickles, the circuit would not duplicate the district court's work. In the de novo review of reasonable suspicion, the circuit gave due deference to the agent. Agent Nickles had decided to stop Cruz-Tapia because of the car he was driving, his failure to look at the agent when he drove by, his abrupt exit from the interstate, his behavior at the gas station, and the fact the vehicle had crossed the international border at Columbus three times in the past three days. But the district court found nothing unusual about the car. The agent admitted he was not sure that Cruz-Tapia even knew he was a border patrol agent. The abrupt exit from the interstate turns completely on whether Cruz-Tapia recognized the agent. Again, Cruz-Tapia's activity at the gas station is innocent if he did not know he was being followed. Multiple crossings are not out of the ordinary for people who live in the border towns.

(2) In determining reasonable suspicion, the court considers the totality of the circumstances and gives due deference to a law enforcement officer's ability to recognize suspicious behavior. The agent saw a large old vehicle that might be used for drug smuggling. It was morning, a usual time for traffic. The vehicle was not heavily loaded, had no passengers and did not swerve. The agent drove an unmarked jeep which the driver did not recognize as a border patrol vehicle. The exit was so sharp that the agent missed it. The driver parked in front of the nearest gas station off the exit and remained there while the agent circled around to catch up with the driver. The driver looked in the hood and trunk and reentered the highway going in the same direction. The car was legally registered to someone in the border town and the car had legally crossed the border three times that day at Colombus. The mantra, "totality of the circumstances," can not metamorphose into reasonable suspicion. The court affirmed the grant of the motion to suppress.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Evidentiary Hearing;

Access to Psychiatrist (Ake) - Review Standard, Retroactivity, Threshold Showing;

Expert Funds - Psychiatrist, Forensic Expert;

Jury - Challenge, Pretext, Racial Motivation;

Prosecutorial Misconduct - Procedural Default, Suppression of Favorable Evidence;

Procedural Default - Independent and Adequate State Ground;

Felony Murder - Intent to Kill;

Instructions - Lesser Included;

State Law Questions;

Pre-Indictment Delay;

Ineffective Assistance of Counsel - AEDPA, Lack of Jurisdiction;

Aggravating Circumstances - Double Weighing, Continuing Threat, Option of Life Sentence

Johnson v. Gibson, 96-6336 (December 28, 1998)

(Vicki Ruth Adams Werneke and Randy A. Bauman, FPD, Oklahoma City, Oklahoma)

Johnson filed an amended habeas corpus petition pursuant to 28 U.S.C. § 2254 in February 1994. The district court denied the petition August 12, 1996. Johnson had been sentenced to death.

HELD: (1) The pre-AEDPA's standards apply because Johnson's petition was filed prior to enactment of the AEDPA.

(2) The court reviews denial of an Ake claim in this way: fact findings under the clearly erroneous standard and legal conclusions de novo. The Supreme Court decided Ake after Johnson's trial but while the case was still pending on direct appeal, so application of Ake (a 1985 case) presents no retroactivity problem.

(3) Due process requires that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must assure the defendant access to a competent psychiatrist. The question is whether upon review of the record, Johnson made a threshold showing under Ake. Johnson did not do so.

(4) In the penalty phase an expert must be appointed if the state presents evidence, psychiatric or otherwise, of future dangerousness or continuing threat to society, and the defendant establishes the likelihood his mental condition is a significant mitigating factor. Again Johnson failed to make the threshold showing.

(5) The trial court also denied funds for a forensic expert. This denial did not result in a fundamentally unfair trial. Denial of funds for non-psychiatric experts may present a due process violation depending on the effect on petitioner's private interest in the accuracy of the trial if the requested service is not provided, the burden on the government if the service is provided, and probable value of the service in light of the risk of error. The private interest in accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling, and any state interest is tempered by the interest in a fair and accurate adjudication. Upon review of the record, Johnson failed to show denial of his request for expert assistance substantially prejudiced his case at the guilt phase of the trial. He also failed to show how denial of travel funds to procure mitigating evidence prejudiced him.

(6) The prosecutor used preemptory challenges to strike all three black jurors, resulting in an all white jury. Johnson made a prima facia case of a Batson violation. The state court found that the prosecution had met its burden of proof in showing there was no purposeful discrimination. State court's factual determinations are correct unless not fairly supported by the record. Johnson offers troubling evidence of the pretextual character of the prosecutor's ostensibly neutral reasons. A black juror and a white juror shared similar characteristics, yet the prosecutor struck only the black juror. But this pretext argument was not raised at the evidentiary hearing.

(7) Petitioner raised the due process claim alleging prosecutorial misconduct. The district court found he was procedurally defaulted on most of the challenges. This court does not address issues defaulted in state court on an independent and adequate state ground, unless petitioner makes a showing of cause and prejudice or fundamental miscarriage of justice. Language of the Oklahoma court supports the inference that it barred all claims, save one, under a contemporaneous objection rule. Johnson's argument that the Oklahoma court in fact reviewed the claims on the merits is not supported by the court's language. Given that the Oklahoma court applied procedural bar, the next question is whether that is an adequate state ground. If Oklahoma does not consistently apply a contemporaneous objection rule to claims of prosecutorial misconduct, this can not be an adequate state ground. Johnson points out that he did not fail to raise the numerous alleged instances of prosecutorial misconduct, but rather the Oklahoma court simply did not address them. Johnson also raised this omission in a petition for rehearing. He also offers evidence that Oklahoma courts review such claims for fundamental error. Therefore the circuit held there was not an adequate and independent procedural bar. The question is whether improper remarks regarding forensic and psychiatric assistance so infected the trial with unfairness as to constitute a denial of due process. The remarks did not do this, even considering the entire catalog of allegedly prejudicial prosecutorial comments.

(8) The Supreme Court in Tyson v. Arizona rejected the claim that Emmund v. Florida requires felony murder statutes to incorporate a specific intent to kill requirement.

(9) The trial court found procedurally barred Johnson's claim that his death sentence violated Beck v. Alabama, because the trial court failed to instruct the jury on lesser included offenses. But Johnson argues appellate counsel's failure to raise this dispositive issue constituted ineffective assistance of counsel sufficient to show cause and prejudice to overcome procedural default. But the jury had the chance to reject the death penalty during the penalty phase.

(10) The next question is whether the trial court lacked jurisdiction to try the defendant because he was charged with felony murder by an information that did not set forth all of the elements of the underlying felony of rape, and therefore was fatally and jurisdictionally defective under Oklahoma law. The district court found this claim procedurally barred because it was raised for the first time on post-conviction release. But Johnson argues the Oklahoma courts recognize jurisdictional flaws sua sponte, and procedural bar is not applied consistently to this type of claim. His claim is jurisdictional and should not be barred; alternatively, appellate counsel was ineffective in not raising this. Assuming the claim is not barred, it fails to constitute a claim upon which habeas relief can be granted. The adequacy of an information under Oklahoma law is simply a question of state law not cognizable in habeas corpus.

(11) The aggravating circumstances of future dangerousness and prior felony conviction are not duplicative.

(12) The court rejected the challenge to use of unadjudicated offenses to support the continuing threat aggravating circumstance.

(13) Pre-indictment delay rises to the level of a constitutional violation only when it results in substantial prejudice to the defense, or upon a showing that reasons for the prosecutor's delay were improper. The seven day detention prior to being taken before a magistrate does not rise to this level.

(14) The next question is whether the district court erred in denying Johnson's request for an evidentiary hearing on issues raised by denial of funds for expert assistance. Review is for abuse of discretion. If the facts are not disputed and the issues can be resolved based on the record, no evidentiary hearing is required. The record was sufficient to resolve all the issues.

(15) Under the AEDPA, ineffectiveness of counsel during federal or a state post-conviction proceeding shall not be a ground for relief under § 2254. But this case is pre-AEDPA. Johnson moved to dismiss appointed counsel and to appoint substitute counsel. Habeas petitioners have no independent Sixth Amendment right to counsel. But they are afforded this by statute under 21 U.S.C. § 848(q). This statute implies the same substitution of counsel standards as the Sixth Amendment, so that, to warrant substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict. The district court is under a duty to make a formal inquiry into reasons for dissatisfaction with present counsel. Although the district court failed to make the inquiry, the claim is moot because petitioner Johnson is now represented by the substitute counsel he claimed.

(16) The trial court does not violate the Eighth and Fourteenth Amendments by failing to inform the jury that it has the option of returning a life sentence even upon a finding of an aggravating circumstance.

(17) To establish a Brady violation petitioner must show evidence was suppressed by the prosecution favorable to the petitioner and material. Materiality requires a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Petitioner failed to establish the materiality of the information requested, even though a request for specific information, as opposed to the general request for all Brady evidence, can lower the threshold of a materiality showing.

Downward Departure - Remorse, Factor to Consider, Discretion Standard, Jurisdiction

United States v. Fagan, 97-3306 (December 29, 1998)

(Timothy J. Henry, FPD, District of Kansas)

Fagan appeals the denial of his motion for downward departure based on sincere remorse. The district court ruled it lacked discretion to consider remorse as a factor warranting downward departure. The circuit reversed.

HELD: (1) An appellate court lacks jurisdiction to review a sentencing court's refusal to depart when the court was aware it had authority to depart but the court declined to do so. An appellate court does have jurisdiction to review the refusal to grant a downward departure when the refusal is based on a court's conclusion that it lacks discretion to make the departure. The unambiguous language used by the district court in declining Fagan's motion expressed the court's belief it was without discretion.

(2) The court reviews the district's ruling that it lacks the discretion to depart de novo. In Koon, the Supreme Court adopted a unitary abuse of discretion standard with respect to review of departure decisions. Whether a factor is a permissible basis for departure is a question of law reviewed de novo. Unless specifically prohibited, any factor may be a potential basis for departure. Because remorse is not a forbidden factor it may be a permissible departure factor. Fagan's base offense level was decreased by three levels for acceptance of responsibility. Remorse is an element of acceptance of responsibility. If a factor is already taken into account by the guidelines, a permissible factor must be present to an exceptional degree.

Indictment - Jurisdictional Facts;

Appellate Procedure - Arguments Raised at Oral Argument;

Guilty Plea - Admits All Material Allegations;

Sentencing - Rule 32, Findings;

Amount of Loss

United States v. Brown, 97-4165, 97-4183 (December 29, 1998)

Brown appeals the denial of his motion to dismiss for lack of subject matters jurisdiction, and the government cross-appeals on the loss calculation.

HELD: (1) The court reviews the challenge to the district court's jurisdiction de novo. The indictment recited the necessary jurisdictional facts, and nothing more was required. An indictment is to be tested on the basis of the allegations made on its face. Brown could not rely on affidavits and extrinsic evidence to the indictment. The challenge raised to the superseding indictment raised only at oral argument comes too late.

(2) Brown's unconditional plea admitted all material allegations already contained in the superseding indictment and is an admission of all material facts. Even though Brown was careful not to admit any conduct occurred within the United States, his plea did so.

(3) Rule 32 requires the court to make a finding on disputed facts or a determination that no finding is necessary because the controverted matter will not be taken into consideration. Ordinarily, when a district court fails to comply, a remand is necessary. But a remand is unnecessary here because the record demonstrates the government chose not to ask the trial court to explain its reasons. The government's failure to raise a Rule 32 objection limits reviews to plain error.

(4) Our cases state that relying on a defendant's gain is per se only unreasonable when the actual or intended loss is nonexistent. The guidelines provide that loss calculation shall be determined, in the case of jointly undertaken criminal activity, on the basis of all reasonably foreseeable acts and omissions of others in furtherance of the activity. There is ample evidence to support the district court's conclusion that many of the acts in Germany could not have been reasonably foreseeable to Brown.

Threat to Murder Law Enforcement Officer (18 U.S.C. §§ 115, 1114) - Review Standard, Local Officer Detailed to Federal Investigation, True Threat, Guideline Enhancement (§ 2A6);

Statutes - Interpretation;

Sufficient Evidence;

Guideline Enhancement - Review Standard

United States v. Martin, 98-6089 (December 31, 1998)

(William P. Earley, FPD, Oklahoma City, Oklahoma)

Martin appeals his conviction of threatening to murder a law enforcement officer whose killing would be a crime under 18 U.S.C. § 1114, with intent to impede, interfere or retaliate against the officer, while he was engaged in or on account of his official duties, in violation of 18 U.S.C. § 115(a)(1)(B). At sentencing, the offense level was 21, given a base offense level of 12, under § 2A6.1, with a six level increase for conduct evidencing intent to carry out threats, and a three level victim related increase for threatening a law enforcement officer who is assisting the FBI.

HELD: (1) The question is whether a local police detective deputized to participate in a federal narcotics investigation is a federal officer within the meaning of § 115. This turns on the meaning of officer or employee of the United States or a person assisting such officer under 18 U.S.C. § 1114. The court reviewed the district court's interpretation of the statutes de novo. The type of individual encompassed by § 1114 is a legal question, but the jury decides the ultimate issue of fact, whether Detective O'Rourke was engaged in the performance of federal duties. 21 U.S.C. § 878 states that state and local law enforcement officers performing functions under this section shall not be deemed federal employees. 5 U.S.C. § 3374 enumerates statutory provisions under which state or local government employees detailed to a federal agency shall be considered federal employees. Congress intended § 111 to protect federal functions as well as federal officers. Both § 111 and § 115 rely on § 1114's definition of protected persons. The detective was deputized to participate in a federal investigation. He was a federal officer within the meaning of §§ 115 and 1114.

(2) When considering the sufficiency of the evidence, the court reviews the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(3) The circuit has not yet considered the requirements of a true threat under § 115. Other circuits have analogized this issue to the elements of 18 U.S.C. § 871, the statutory provision protecting the President of the United States. The willfulness element of § 871 does not require present intent to inflict bodily harm. The threats need not be made directly to the proposed victim.

(4) The court reviews fact findings supporting a sentencing decision for clear error and will not disturb them unless they have no basis in the record. Martin objected to the six level increase under §2A6. But the sentencing court has discretion to make credibility determinations. And a sentencing court may look beyond the charges alleged in the indictment.