Habeas Corpus (28 U.S.C. § 2254) - Death Penalty, AEDPA Applies;  Lesser Included Offense Instructions

Hogan v. Gibson, 98-6299 (December 8, 1999); (Patrick J. Ehlers, Jr., FPD, Oklahoma City, Oklahoma)

This is a habeas action arising out of a death sentence.

HELD: 

(1) The AEDPA applies.

(2) When the evidence establishes that the defendant is guilty of a serious violent offense, but leaves some doubt with respect to an element that would justify conviction of a capital offense, the failure to give a third option of convicting on a lesser included offense enhances the risk of an unwarranted conviction. There is no constitutional violation when a court instructs a jury on one lesser included offense supported by the evidence even if others might be warranted, or when a jury is given no option where the applicable state law has no lesser included offense. Oklahoma has treated first degree heat of passion manslaughter as a lesser included offense of first degree murder. The OCCA assumed that a self-defense instruction constitutes a lesser included offense instruction. Self-defense is not a lesser included offense, but instead is a defense to murder, and if proved, a defendant is guilty of no crime. The OCCA was wrong as well in denying the claim that a manslaughter instruction was necessary, finding there was sufficient evidence to support a finding of premeditation. This analysis is wrong because Beck requires a court to consider whether there is sufficient evidence to warrant instructing the jury on a lesser included offense, not whether there is sufficient evidence to warrant conviction on the greater offense.

(3) Under the AEDPA, the applicable standard of review depends on whether the sufficiency of the evidence for a lesser included offense instruction is a factual or legal question. Tenth Circuit precedent has not been consistent on this issue. The circuit did not resolve this, because it found no state finding entitled to any kind of deference. The court reviewed the district court's conclusions de novo, and fact findings for clear error. A defendant is entitled to a lesser included offense instruction if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. Under Oklahoma law, even if a person kills in the heat of passion, the killing may not be classified as first degree manslaughter if the person intended death to result from the act. Thus, Hogan is only entitled to the manslaughter instruction if the evidence was such that the jury could rationally conclude that his rage rendered him incapable of forming a design to effect death. The circuit agreed with the federal district court that the OCCA failed to consider what, if any, evidence supported Hogan's theory of manslaughter. Hogan's confession could lead a reasonable jury to find adequate provocation, heat of passion resulting from fear and terror, causation and immediacy, so as to warrant the first degree manslaughter instruction. The confession could also lead the jury to conclude that heat of passion rendered him incapable of forming a design to effect death. The district court nonetheless found the evidence insufficient to support an instruction on a lesser included offense. The circuit disagreed. The circuit concluded that Hogan's constitutional rights were violated by the trial court's refusal to instruct on first degree manslaughter. The circuit reversed and remanded to the district court to grant the writ conditioned upon retrial of Hogan in the state of Oklahoma (opinion by Lucero: Seymour and Briscoe on the panel).

Indictment - Purpose and Requirements, Amendment, Variance, Changing Name of Victim;  Sufficient Evidence - Standard, Carjacking, Attempt;  Carjacking - Element, Taking, Related Firearms Conviction;Attempt - Elements

United States v. Moore, 98-5238 (December 13, 1999);  (Michael A. Abel, FPD, Tulsa, Oklahoma)

Moore was convicted of bank robbery, four § 924(c) counts, three car jacking counts and was sentenced to 950 months.

The indictment charged that Moore robbed Commercial Federal Bank. Mrs. Byers testified that Moore approached her as she was exiting her vehicle in the parking lot. He displayed a handgun and instructed her to open the door on the north side of the bank building. Once inside she turned off the alarm. Moore tied her up with telephone wires and told her to give him the keys to her car. The indictment alleged that Moore took the car and left the scene. Instead of naming Byers as the victim, the indictment named Brent Byers, the registered owner of the vehicle. The only testimony at trial was that of Ann Byers. Upon motion of the government, at the close of the evidence, the district court substituted Ann Byers' name in the indictment for that of Brent Byers.

The indictment also charged in count seven an attempt to carjack from Deputy Frasier. The evidence showed that Moore abandoned Byers' vehicle when he was stuck in traffic, he then took a vehicle from another individual and attempted to escape. Then he fled on foot, coming into contact with Deputy Frasier who was in his vehicle. Moore approached the passenger side with his gun drawn. Deputy Frasier shot the defendant in the shoulder before Moore had the chance to take the vehicle.

HELD: 

(1) Whether the district court erred in changing the name of the victim in count three after the close of the evidence is reviewed de novo. The purpose and requirements of a grand jury indictment are that the indictment contain elements of the offense, sufficiently appraise the defendant of what he must be prepared to meet, and must be such as to allow him to plead former acquittal or conviction as a bar. Charges may not be broadened through amendment unless done by the grand jury. There is a distinction between an amendment and a variance to an indictment. A variance occurs when the proof at trial differs materially from the facts in the indictment. An amendment involves a change in the terms of the indictment. An amendment constitutes reversible error, whereas a variance will only be regarded as error if it is a fatal variance. Generally an erroneous reference to the victim is not fatal to the indictment. At trial the defendant argued he did not take the car from the person or presence of Ann Byers. Where a defendant is not misled by the variance, his right to adequate notice and substantial rights are not prejudiced in any way. Moore's substantial rights were not violated because the double jeopardy clause would protect him from another prosecution. The circuit stopped short of creating a per se rule that it is never reversible error to change the name of a victim in an indictment.

(2) Sufficiency of the evidence claims are reviewed de novo to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. For carjacking, the defendant argued the evidence did not support the element of taking the vehicle from the person or presence of the victim. The victim's car was in the parking lot and not in the victim's immediate presence when he took the keys. In United States v. Lake, the Third Circuit held that property is in the presence of a person if it is so within his reach, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it. A reasonable jury could have found that the victim in Moore's case could have prevented the taking of her car had she not been fearful.

(3) For an attempt conviction, the government must prove intent to engage in criminal conduct and performance of acts which constitute a substantial step toward commission of the substantive offense. The evidence was sufficient to show attempted carjacking of Deputy Frasier's vehicle.

(4) The § 924(c) charges are dependent upon the two carjacking convictions. Since those are affirmed, the firearm convictions are affirmed as well.

Amount of Loss;Guideline Sentencing - Burden of Proof, Review Standard;  Scope of Remand - De Novo, Mandate Rule;  Related Conduct - Prior Conviction

United States v. Keifer, 98-3335 (December 15, 1999);  (Timothy J. Henry, FPD, Wichita, Kansas)

Keifer was convicted of multiple counts of bank fraud and using a false social security number. He was sentenced to 41 months, with credit for time served on other convictions, five years supervised release, and restitution of $29,771.00. He appeals the sentence and the government concedes error, but the parties disagree about the scope of remand. The circuit affirmed in part and remanded for resentencing.

(1) Review of a determination of loss under §2F1.1 is for clear error, but the factors a district court may consider in determining loss are reviewed de novo. The government has to prove sentencing enhancements and increases by a preponderance of the evidence. The government failed to introduce any evidence regarding the Pennsylvania charges, despite Keifer's objection, and the district court overruled the objection. The government agrees remand for resentencing is necessary.

(2) Resentencing on remand is typically de novo, but an appellate court may limit the district court's discretion pursuant to the mandate rule. The de novo resentencing permits receipt of any relevant evidence the court could have heard at the first sentencing. But in United States v. Torres, the circuit held that since the government failed to meet its burden of proof, resentencing does not invite an open season for the government to make the record it failed to make in the first instance. To the extent Torres conflicts with earlier precedent, the circuit follows earlier settled precedent. The circuit held that the matter of the Pennsylvania charges should be considered de novo.

Habeas Corpus (28 U.S.C. § 2255) - AEDPA, Successive Petition, Abuse of Writ, Earlier Petitions Voluntarily Withdrawn

Haro-Arteaga v. United States, 99-4201 (December 15, 1999)

(Order and Judgment)

Haro-Arteaga challenges his 1995 conviction and sentence. He filed two previous § 2255 motions. The first one he withdrew. The second motion was filed March 26, 1997. He moved to dismiss that one to avoid delay in his transfer to Mexico. Then he filed a § 2255 motion on August 2, 1999 and one on August 27, 1999. These were consolidated. This court follows pre-AEDPA cases on abuse of the writ. The following cases have been held not to be subject to the gatekeeping restriction: where previous petitions have been dismissed without prejudice for failure to exhaust state remedies, where the first post-conviction remedy was used to reinstate the right to direct appeal, when the § 2255 motion was dismissed without prejudice because it was filed while a direct criminal appeal was pending. The Seventh Circuit is the only circuit to deal with the situation where previous petitions have been voluntarily withdrawn. Because none of the earlier motions conceded any claim or were decided on the merits, or after the district court engaged in substantive review, the present motion is not subject to the gatekeeping provisions of the AEDPA. Therefore the district court ordered dismissing the § 2255 action is vacated and the case is remanded.

Day v. Maynard, 99-7059 (December 20, 1999)

Section 1915(g), 28 U.S.C., the Prison Litigation Reform Act, provides for denial of a motion to proceed in forma pauparis where the plaintiff has had three strikes. That means that three prior cases have been dismissed as frivolous or malicious. A dismissal without prejudice counts as a strike so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim. Section 1915(g) announced a new procedural rule, and therefore the court may count prisoner suits dismissed prior to the statute's enactment as strikes. An exception to the three strikes provisions is where the prisoner is under imminent danger of serious physical injury. Day's allegation is not sufficient under this exception. Therefore Day's motion to proceed in forma pauperis is denied.

Motion to Suppress - Review Standard;  Police/Citizen Encounter - Consensual, Detention, Arrest;  Search - Consensual Encounter, Reasonable Suspicion

United States v. Hill, 99-2122 (December 21, 1999);  (Alonzo J. Padilla, FPD, Albuquerque, New Mexico)

Hill entered a conditional plea of guilty to possession with intent to distribute PCP. His appeal focuses on the denial of his motion to suppress evidence found during a search of his luggage while on a bus in Gallup, New Mexico.

HELD: 

(1) When reviewing a district court's denial of a motion to suppress, the court accepts fact findings unless clearly erroneous and views the evidence in the light most favorable to the government.

(2) There are three categories of police/citizen encounters: consensual encounters, investigative detentions that must be supported by reasonable suspicion, and arrests that require probable cause. The crucial test for determining whether an encounter is consensual is whether the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. The court considers a number of factors including the threatening presence of several officers, brandishing of a weapon, some physical touching, aggressive language, prolonged retention of personal effects, interaction in a non-public place. The encounter was consensual and consent to search the bag was voluntary. At the time Deputy Justice asked Hill to exit the bus with him, turning the consensual encounter into an investigative detention, the deputy had reasonable suspicion based on the smell of PCP.

Motion to Suppress - Review Standard;  Warrant - Overbroad, Good-Faith Reliance;  Instructions - Review Standard, Definition of Willful;  Sufficient Evidence - Review Standard, False Tax Returns;  False Tax Returns - Willful Element, Instructions, Sufficiency;  Abuse of Position of Trust (§3B1.3);Guideline Interpretation - Review Standard;  Downward Departure - Denial Based on Race, Appealability

United States v. Guidry, 98-3287 (December 21, 1999)

HELD: 

(1) When reviewing a denial of a motion to suppress, the court considers the evidence in the light most favorable to the government and accepts factfindings unless clearly erroneous. The court reviews de novo whether a warrant is overbroad. The district court found that the affidavit was as specific as circumstances allowed. The circuit did not address this question, holding that the agent acted in good faith reliance on the warrant.

(2) The court reviews de novo a timely challenge to a jury instruction to determine whether, considering the instructions as a whole, the jury was misled. The statutory definition of willful as applied in the tax code is the voluntary, intentional violation of a known legal duty. Cheek v. United States.

(3) In reviewing the sufficiency of the evidence, the court reviews the record de novo and asks whether, taking the evidence, both direct and circumstantial, together with reasonable inferences, in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. While willfulness cannot be inferred solely from an understatement of income, willfulness can be inferred from false entries, false invoices, destruction of books, concealment of assets. The jury was free to examine the way the embezzlement scheme was designed to conceal assets, and infer Guidry's intent was to avoid paying a known tax liability.

(4) The court reviews the district court's legal interpretation of the sentencing guidelines de novo, and the district court's factfindings for clear error. Imposition of the enhancement for an abuse of position of trust was clearly erroneous. Section 2T1.1 provides for a two-level enhancement when sophisticated means were used to impede discovery of the existence or extent of the offense. The district court imposed this enhancement, finding the case was not routine. But the district court also imposed the two levels under §3B1.3 for abuse of position of trust. The circuit agreed that application of this enhancement was inappropriate, because Guidry did not occupy a position of trust vis a vis the government.

(5) Ordinarily the court lacks jurisdiction to review the discretionary denial of a downward departure. But the court retains ability to review the refusal when the denial is based on an illegal factor or an incorrect application of the guidelines. A sentencing decision based on race qualifies as both. In denying the downward departure motion, the district court referred to the black community. This reference was most unfortunate and inappropriate. But the comment did not indicate that the court denied the downward departure based on race. Instead the court was responding to the fact that the same community Guidry had served so ably had also been deeply damaged by her actions.

Carjacking - Serious Bodily Injury, Jones Decision, Element of Offense or Sentence Enhancer, Statutory Maximum or Guideline Range;  Instruction - Lesser Included Offense, Accessory After Fact, Eyewitness;  Cross-Examination - Discretion, Credibility

United States v. McGuire, 98-3350 (December 21, 1999);  (Marilyn M. Trubey, FPD, Topeka, Kansas)

McGuire was convicted of carjacking and sentenced to 135 months. His sentence was enhanced because the victim suffered serious bodily injury. Under §2B3.1(b)(3)(B), McGuire urges the district court erred in not submitting the question of injuries to the jury, relying on Jones v. United States.

HELD: 

(1) In contrast to Jones, the presentence report noted the maximum term of imprisonment under § 2119 was 15 years. In calculating that term within the 0 to 15 year window, the PSR increased McGuire's offense level because the victim had suffered serious bodily injury. But there was never any discussion of increasing the statutory maximum penalty pursuant to § 2119(2) on that ground. The Jones decision does not stand for the proposition that the question of bodily injury in the application of the guidelines must be submitted to the jury. The question of serious bodily injury was considered as a sentencing factor, rather than as an element of aggravated carjacking under § 2119(2).

(2) To find that the district court erred in declining to give a lesser included offense instruction, the court must find there was a proper request, the lesser included offense includes some but not all of the elements of the offense charged, the elements differentiating the two offenses are in dispute, and a jury could rationally convict the defendant of the lesser offense and acquit him of the greater. The circuit concluded that an accessory after the fact is not a lesser included offense of carjacking, because it requires proof of an element not necessary to prove carjacking. McGuire's proposed instruction was not a theory of defense instruction, but was presented as a lesser included offense instruction.

(3) This court has adopted a flexible approach in determining whether the district has abused its discretion in refusing to give a special eyewitness instruction. The court considers whether identification was the sole or primary issue, whether the evidence consisted mainly of eyewitness identification, whether that testimony was uncertain, qualified, or suggested a serious question, and whether the witness had adequate opportunity to observe.

(4) The court reviews de novo whether cross examination restrictions violated the Sixth Amendment right to confrontation. The district court has broad discretion in this area. The circuit reviewed the witness' testimony and concluded that the jury had sufficient information to properly appraise his credibility, motives and possible bias. The district court did not abuse its discretion in cutting off additional questions about the witness' criminal history, his juvenile adjudications and alleged probationary status, and then precluding questions about the witness' allegedly abusive relationship with his ex-girlfriend.

Search Warrant - De Novo Review of Probable Cause, Nexus Between Illegal Activity and Place to Be Searched, Good Faith Exception

United States v. Nolan and Cunningham, 98-3193 (December 22, 1999)

In this case a warrant was issued to search the residence of Nolan, and seize documents and assets related to drug trafficking, but did not authorize the seizure of drugs or drug paraphernalia. While executing the warrant, the agents observed cocaine and obtained a second warrant for the seizure of drugs and drug paraphernalia. Pursuant to those warrants, agents seized the contraband and other evidence of drug trafficking. They then arrested Nolan and his roommate, Cunningham. The district court suppressed the evidence based on lack of sufficient nexus between the residence and items to be seized. The district court also held the good faith exception did not apply. The circuit reversed in the government's appeal.

HELD: 

(1) The court reviews de novo the district court's probable cause determination. Other circuits have held that observations of illegal activity outside the home can provide probable cause for a search warrant of the house. The Tenth Circuit has never held that the mere observation of repetitive illegal drug activity outside a suspect's residence is sufficient to establish probable cause. The panel in this case did not decide whether the affidavit was sufficient to sustain the magistrate's finding that incriminating evidence would likely be found inside Nolan's residence. Instead the circuit relied on the good faith exception to the exclusionary rule under United States v. Leon. The applicability of the good faith exception is a question of law reviewed de novo. The affidavit was not a bare bones affidavit. Law enforcement's reliance on the magistrate's determination of probable cause was not objectively unreasonable.

Carjacking - Elements, Taking From Person or Presence of Another, Force, Violence and Intimidation, Intent to Cause Serious Bodily Harm, Interstate Commerce, Double Jeopardy;  Conspiracy - Crime of Violence Under § 924(c);Statutory Interpretation - De Novo, Conspiracy as Crime of Violence;  Identification - Impermissibly Suggestive, In-Court, Pre-Trial;  Admission of Evidence - Discretion, Other Bases Than District Court Ruling, Gang Affiliation;  Serious Bodily Injury - Carjacking, Guideline Enhancement

United States v. Brown, 98-3343, United States v. Dixon, 98-3347;  (December 22, 1999) (James P. Moran, FPD, Denver, Colorado for Brown and Timothy J. Henry, FPD, Wichita, Kansas for Dixon)

This case involves conspiracy, carjacking and § 924(c) counts. Dixon, Brown and friends traveled to Lawrence, Kansas to drop Reed off at a nightclub. Brown had two guns with him, supplying one to McClelland. They discussed robbing someone. They observed the victim approach his 1977 Black Ford Explorer in the parking lot. As the victim and his passengers drove out of the nightclub, they followed to the residence. The victim pulled his vehicle into an adjacent driveway because the residence driveway was full. The victim said goodbye to his passengers and left the motor running and headlights on. When the victim returned, the trio's vehicle was parked directly behind him. Dixon, the driver, summoned him. Brown, a passenger, opened the glove box of the trio's vehicle, and supplied the victim with a pen and paper to write down a phone number. The victim said he was responsive to Dixon's inquiries so he could be on his way. Before the victim could get into his vehicle, Brown got out of the car, pointed a gun at him and demanded his money and wallet. The victim complied and then Brown wanted his jewelry. Dixon began hitting him on the face. Brown told Dixon to chill out and take it easy. Brown ordered the victim to run down the street. The victim refused, saying he thought he would be shot in the back. The victim was hit several more times. Then one of the victim's passengers who had been dropped off at the residence heard the commotion and yelled, "What's going on?" This distracted Brown and Dixon and allowed the victim time to run inside the residence. McClelland drove the victim's vehicle away. The police quickly apprehended them.

HELD: 

(1) Section 2119, 18 U.S.C., carjacking provides that whoever, with intent to cause death or serious bodily harm, takes a motor vehicle which has been transported in interstate commerce from a person or presence of another, by force and violence or by intimidation, shall be guilty of carjacking. The court reviews a challenge to the sufficiency of the evidence de novo. A car is stolen from the presence of an individual if the victim is sufficiently near the vehicle for it to be within reach, inspection or control and, absent threat or intimidation, be able to maintain control. Absent the threats and intimidation of Brown and Dixon, the victim would have returned to his vehicle and driven away. The presence requirement does not require that the property be within easy touch so long as the car was close enough for the victim to have prevented its taking, had fear of violence not caused him to hesitate.

(2) Ample evidence exists that Brown and Dixon used force, violence and intimidation to take the victim's vehicle. The attempt to separate the violence used in the robbery from the taking of the vehicle is disingenuous.

(3) The scienter element of the statute, intent to cause serious bodily harm, was satisfied where Dixon told McClelland to drive their car away after Dixon struck the victim.

(4) Brown urges that conspiracy under § 371 is not a crime of violence as defined by § 924(c)(3), and therefore he could not be convicted under § 924(c)(1). Review of the statutory interpretation question is de novo. The substantive offense of carjacking is a crime of violence. Several courts have held that conspiracy to commit a crime of violence is a crime of violence under § 924(c). The circuit distinguished its prior decision in United States v. King. In this case an overt act in furtherance of the object of conspiracy was an element of the conspiracy, thereby inviting consideration of the underlying substantive offense.

(5) Whether identification procedures violate due process is a legal question reviewed de novo. Admission of an in-court identification violates due process only when it was tainted by unnecessarily suggestive pretrial identification procedures creating a very substantial likelihood of misidentification. The court considers opportunity to view the criminal, degree of attention, accuracy, level of certainty and length of time between the crime and confrontation. Defendants failed to show the pretrial identification procedures were unnecessarily suggestive.

(7) The court rejected the claim that the carjacking statute violates the commerce clause.

(8) The court also rejected the claim that separate convictions for carjacking and use of a firearm violate double jeopardy.

(9) The claim regarding government promises was rejected in the en banc decision in Singleton.

(10) The offense level was increased under §2B3.1(b)(3)(A) because the victim sustained bodily injury. The district court's determination of the significance of a bodily injury is reviewed for clear error. The victim sustained bleeding and a severe headache from half a dozen blows as well as swelling, bruises, cuts and lumps. These injuries are clearly painful and obvious and the district court did not err.

Commercial Work Activity on Forest Service Land (36 CFR § 261.10(c)) - Sufficient Evidence

United States v. Brown, 99-8021 (December 29, 1999)

Brown was convicted of violating 36 C.F.R. § 261.10(c). The circuit held there was sufficient evidence to support convictions for knowingly conducting a commercial work activity on Forest Service land without a special use authorization permit. In addition, receiving remuneration and assessing a separate delivery charge are not required elements of the crime.

HELD: 

(1) The court views the evidence in the light most favorable to the government. To the extent Brown challenges legal interpretation of the regulation, the court's review is de novo. Brown agreed to rent a snowmobile to Barlow for $200 and delivered the snowmobile on Forest Service property. In the Richard case, the court held that hauling canoes to a forest service boat ramp and picking up customers from the National Forest violated the regulation. Brown's conduct constituted selling or offering merchandise for sale and conducting a work activity or service in the Forest, and thus a special use authorization permit is required under the regulation.

(2) The final exchange of funds never took place because Brown saw Barlow speaking to Officer Orde prior to Barlow's final payment. But receipt of payment is not a required element under the regulation. The key is whether the sale or offer of sale of merchandise or the work activity or service is a commercial activity. Brown was providing a service as well as goods by delivering snow mobiles and equipment onto Forest Service land, and he was motivated by the prospect of commercial gain in doing so.

(3) The court also rejected the argument that, because there was no drop off charge, the conviction on count two must be reversed.

Habeas Corpus (28 U.S.C. § 2254);  Disproportionate Sentences - Factors to Consider, Chronological Age of Defendant, Seriousness of Crime, Possibility of Parole

Hawkins v. Hargett, 98-5162 (December 29, 1999);  (Stephen J. Greubel, Tulsa, Oklahoma)

Hawkins appeals the denial of his writ of habeas corpus. Hawkins was certified to stand trial as an adult. He does not claim that the 100 year sentence would be disproportionate had it been imposed on an adult. Instead he urges that the consecutive sentences were disproportionate in light of the fact he committed the crimes when he was 13 years old.

HELD: 

(1) The Eighth Amendment's guarantee against cruel and unusual punishment has been most commonly read to bar unnecessarily painful or barbarous methods of punishment. The Supreme Court has also interpreted the Eighth Amendment to prohibit a sentence that is disproportionate to the offense. Weems v. United States. In Solem v. Helm, the Supreme Court articulated a three-part test for analyzing proportionality claims under the Eighth Amendment. It instructs the courts to use objective criteria to evaluate the gravity of the offense and harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and sentences imposed for commission of the same crime in other jurisdictions. The Court overturned a sentence of life in prison without possibility of parole for a non-violent recidivist. The Supreme Court's subsequent decision in Harmelin v. Michigan left the meaning of Solem less than clear, as to whether Harmelin overruled or altered Solem and what the correct proportionality analysis should be. The circuit held that Justice Kennedy's opinion in Harmelin narrows Solem and sets forth the applicable Eighth Amendment proportionality test. The court examined Hawkins' sentence in relation to his crimes for gross disproportionality. Chronological age of a defendant is a factor that could be considered in determining whether a punishment is grossly disproportionate. The punishment here was not mandated by the legislature, but was set by a judge within a range of sentences the legislature specified. Hawkins' crimes were serious, involving a deadly weapon, home invasion, threats of violence and repeated sexual attacks. His age at the time of the crimes is more than counterbalanced by the harm he caused the victim. His prison sentence will be shortened by availability of parole and good-time credits. His sentences are within the permissible statutory range for the offenses he committed. There is no societal consensus that a long sentence imposed for serious crimes committed at age 13 offends evolving standards of decency.

Habeas Corpus (28 U.S.C. § 2254) - Death Sentence, AEDPA;  Instructions - Lesser Included Offense;  Prior Convictions - Procedure to Challenge, Sentence Enhancer, Doctrine of Laches;  Right to Confront - Hearsay, Excited Utterance;  Mitigation - Polygraph Results;  Prosecutorial Misconduct - Deprivation of Specific Constitutional Right Versus General Claim of Unfair Trial;  Remedy - Conditional Grant of Writ, Reweigh Aggravating Factors, Harmless Error, As Law and Justice Require

Paxton v. Ward, 98-6236, 6238 (December 29, 1999)

Paxton was convicted of first degree murder and sentenced to death. The district court upheld Paxton's conviction in the § 2254 action, but determined his sentencing proceeding was constitutionally flawed and granted the conditional writ. Both parties appealed. The circuit affirmed.

HELD: 

(1) Paxton's habeas petition was filed after the enactment of the AEDPA and therefore the AEDPA is applied. The standard for review in the AEDPA is currently under review by the U.S. Supreme Court in Williams v. Taylor.

(2) Paxton urges the trial court erred in denying his request for a lesser included offense of second degree murder instruction relying on Beck v. Alabama. Beck held that a sentence of death may not constitutionally be imposed when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense and the evidence would have supported it. In Schad, the Court said a defendant is not constitutionally entitled to instructions on all lesser included offenses. Beck is satisfied so long as the jury had the option of at least one lesser included offense. The trial court instructed the jury on first degree manslaughter. This was sufficient to satisfy constitutional concerns.

(3) Paxton claimed his appellate counsel was ineffective in failing to challenge the validity of his 1965 conviction on direct appeal. This was used at the penalty phase. The circuit held it was procedurally barred from considering this claim. In any event, the court would not be allowed to grant habeas relief under the doctrine of laches. The Supreme Court has left open the question of whether a state is constitutionally required to provide a defendant an opportunity to collaterally challenge a prior conviction once it is used for sentencing enhancement purposes. Therefore the circuit could not say that the state court decision applying laches to Paxton's challenge to his 1965 conviction is contrary to clearly establish federal law.

(4) Paxton claims the admission of hearsay violated his right to confrontation. The Supreme Court has rejected the argument that a state court determination admitting hearsay under state law is dispositive in habeas. Therefore, in considering a confrontation clause claim the circuit reviews a state court decision by assessing whether it is reasonably supported by the record and whether its legal analysis is sound. This concerns whether the hearsay was admissible as an excited utterance. The circuit could not conclude that the determination by the state court that the statement was an excited utterance was supported by the record. The admission of the statement violated Paxton's right to confront witnesses.

(5) Paxton also argues he was denied his right to present mitigating evidence when the trial court refused to admit a court order stating Paxton had been cleared by a polygraph examination. In closing argument the prosecutor made two critical misrepresentations. Supreme Court authority makes clear that a state court may not apply a state rule of evidence in a per se or mechanistic manner so as to infringe upon a defendant's constitutional right to a fundamentally fair trial and to present mitigating evidence in a capital proceeding. The Ninth Circuit has held that exclusion of polygraph evidence under state evidence rules violates the right to present mitigation. The circuit held that Paxton was denied his right to present mitigating evidence.

(6) The federal district court considered the prosecutor's remarks, in combination with the erroneous exclusion of polygraph results and erroneous admission of hearsay. The district court found that the prosecutor's argument constituted misconduct. This circuit has drawn an important distinction between an ordinary claim of prosecutorial misconduct, which warrants habeas relief only when the entire proceeding is rendered fundamentally unfair, and a claim that the misconduct effectively deprived the defendant of a specific constitutional right, which may be the basis for habeas relief without proof that the entire proceeding was unfair. Paxton was denied his right to confront witnesses, his right to present mitigating evidence, and his due process rights to explain or deny evidence against him. Prosecutorial misconduct was an integral and prejudicial part of that denial.