Illegal Aliens - Deportation, Cancellation of Removal, Continuous Physical Presence;  Statutory Interpretation

Rivera-Jiminez v. INS, 97-9513 (June 2, 2000)

HELD: 

(1) Jiminez and his family sought review of a final order of the Board of Immigration Appeals denying their applications for suspension of deportation. The court reviews BIA's fact findings for substantial evidence in the record, and reviews BIA's legal determinations de novo.

(2) Prior to the IIRIRA, § 1254(a)(1), of the Immigration and Naturalization Act (INA), provided that the attorney general, in her discretion, may suspend deportation of an otherwise deportable alien who has been physically present in the United States continuously for not less than seven years, is a person of good moral character, and is a person whose deportation would result in extreme hardship to the alien or his lawfully admitted or citizen family. The IIRIRA repealed this section of the INA and replaced it with a new section setting forth requirements for cancellation of removal of non-permanent residents. The new law changed the wording from "suspension of deportation" to "cancellation of removal". Under the IIRIRA, the continuous presence is deemed to end when the alien is served a notice to appear. Therefore, petitioners' period of continuous physical presence ended on May 19, 1993, the date they were served with charging documents.

(3) The BIA found that petitioners had not been in the United States for a continuous seven year period prior to service of the orders to show cause. This was based on the finding that in 1986, Rivera-Jiminez was apprehended by the INS and on July 19, 1986, and accepted voluntary departure for himself and his family in lieu of deportation. After a failed attempt to reenter immediately, petitioners hired a smuggler and reentered two weeks after their voluntary departure. Therefore, they were two months short of the seven years of continuous physical presence. They argued the two week absence was brief, casual and innocent, and therefore should not be considered a break in the continuous physical presence. The circuit agreed with the INS that that two week return was not brief, casual or innocent. But this is irrelevant under the IIRIRA's special rules that talk about in excess of 90 days or, in the aggregate, 180 days.

(4) The judiciary is the final authority on issues of statutory construction and rejects administrative constructions that are contrary to clear congressional content.

Witnesses - Expert Testimony, Reliability Determination, Harmless Error, Rule 414 & 403;  Instructions - Lesser Included Offense

United States v. Velarde, 99-2297 (June 2, 2000); (Peter Schoenburg, Albuquerque, New Mexico)

Velarde appeals his conviction of aggravated sexual abuse of a child in violation of 18 U.S.C. § 2241(c), an offense committed within Indian country under 18 U.S.C. § 1153. The circuit concluded that the district court erred in admitting certain expert testimony, the error was not harmless, and reversed for new trial.

HELD: 

(1) The trial court's admission of expert testimony is reviewed for abuse of discretion. Where the factual basis of an expert's testimony is sufficiently called into question, the trial judge must determine whether the testimony has a reliable basis. The record reveals no reliability determination, concerning testimony by Dr. Ornelis, the expert in question. The trial court abused its discretion in admitting the testimony. The court also found the district court abused its discretion in admitting Dr. McGiver's testimony, again failing to make any kind of reliability determination. The court found the error was not harmless.

(2) Under Rule 414, evidence of commission of another offense of child molestation is admissible. Rule 414 is constitutional. Rule 403 permits the court to exclude such evidence based on the balancing test of the probative value and prejudice. There was no Rule 403 balancing test.

(3) Determining whether a defendant was entitled to a lesser included offense instruction is reviewed de novo. Because § 2244, abusive sexual contact, contains a specific intent element that §§ 2242 and 2243 do not have, the former offense is not a lesser included offense of the crime of sexual abuse.

Motion to Suppress - Review Standard, Video Surveillance, Rules of Evidence, Paid Informant;  Sufficient Evidence - Review Standard;  Drug Quantity and Type;  Role in Offense;  Bribery - Leniency in Exchange of Testimony, Cash Payment by Government;  Specific Intent - Diminished Capacity, Aid and Abet, Possession With Intent to Distribute, Conspiracy;  Instructions - Diminished Capacity/Voluntary Intoxication, Lesser Included Offense Simple Possession - Not Lesser Included of Conspiracy or of Distribution

Collette and Dwight Jackson appeal their convictions arising out of a crack cocaine distribution ring.

Mrs. Jackson's Appeal

HELD: 

(1) The court reviews fact findings on a motion to suppress for clear error, and the ultimate reasonableness of the search is reviewed de novo. Title I does not regulate silent video surveillance, but such surveillance must comply with the Fourth Amendment. Use of video equipment and cameras to record activities visible to the naked eye does not ordinarily violate the Fourth Amendment. These video cameras were installed on telephone poles and what the cameras could observe was not within any reasonable expectation of privacy.

(2) The rules of evidence do not apply in a suppression hearing. Title I does not prohibit use of audio surveillance when one of the participants consents to the recording. These were recordings made in the undercover FBI car.

(3) Even if taxes were not paid on money given to the informant, suppression of her testimony would be inappropriate.

(4) Sufficiency of the evidence is reviewed de novo. The same analysis applies for review of denial of a motion for judgment of acquittal.

(5) Calculation of drug quantity is reviewed de novo. The government has the burden of proving quantities. The court may rely on an estimate. A defendant may be sentenced based on the total amount of drugs reasonably foreseeable to her which fell within the scope of her agreement.

(6) The court reviews the leadership or organizer adjustment for clear error. The record is replete with examples of Mrs. Jackson executing control and directing activities of co-conspirators.

(7) The court reviews a special verdict form under the abuse of discretion standard. The distinction between cocaine base and other forms of cocaine is for the court to determine in sentencing a defendant, and the jury need not determine the nature of the controlled substance. A three-judge panel cannot overrule circuit precedent.

(8) This court made clear in Singleton II that § 201(c)(2) does not apply to government attorneys when they offer leniency in exchange for testimony. The circuit did not address whether the bribery statute applies when the government pays the witness for testimony. The defendant bears the burden of showing a prima facie violation of § 201(c)(2). The record does not reveal that the witness was paid for her testimony. She was paid for her investigative services and reimbursed for expenses. Payment for services of a confidential informant is a long established practice and cannot constitute a violation of the bribery statute, even if the parties contemplated paying for testimony.

Mr. Jackson's Appeal

(9) Jackson was only entitled to a diminished capacity/voluntary intoxication instruction, if the law supported his theory and the facts and evidence were sufficient. The test for a diminished capacity defense is whether the defendant had the mental capacity to form the specific intent to commit the crime. A defendant is not guilty of a specific intent offense if voluntary intoxication prevented the defendant from forming the specific mens rea required for that crime. Specific intent refers to the unique state of mind beyond any mental state required with respect to the actus reus of the crime. Possession with intent to distribute a controlled substance requires the government to establish the defendant knowingly possessed the drug with the specific intent to distribute it. Aiding and abetting is a specific intent crime, because it requires the defendant to act wilfully by participating in the venture, and requires the defendant to have the specific intent to make the venture succeed through his or her acts. Voluntary intoxication is also a potential defense for aiding and abetting. All conspiracy crimes are specific intent crimes. While the record shows that Jackson habitually used crack cocaine, the evidence did not support a finding that he was unable to form the specific intent. Possession with intent to distribute is a specific intent crime as well.

(10) In order for a defendant to be entitled to a lesser included offense instruction there must be a proper request, the lesser included offense must include some but not all of the elements of the offense charged, the elements differentating the two offenses must be in dispute, and a jury could rationally convict the defendant of the lesser and acquit him of the greater offense. Jackson requested a lesser included instruction on simple possession. Simple possession is not a lesser included offense of conspiracy. Simple possession is a lesser included offense of possession of a controlled substance with intent to distribute, but is not a lesser included offense of distribution.

(11) The evidence was sufficient to support Jackson's convictions.

(12) Because Jackson was convicted of conspiracy, the court could consider the amounts of drugs which he reasonably foresaw ane fell within the scope of his agreement with the conspirators.

Plea Agreement - Breach, Contracts

United States v. Peterson, 99-2042 (June 6, 2000); (Judith A. Rosenstein, FPD, Albuquerque, New Mexico)

Peterson plead guilty to aggravated assault of a child. He claims the government breached the plea agreement during sentencing by opposing Peterson's motion for downward departure.

HELD: 

(1) A claim the government has breached a plea agreement is a question of law reviewed de novo. Where Peterson did not object to the government's statement at the time of sentencing, the court reviews the claim for plain error. The court examines the nature of the government's promise, and evaluates it in light of the defendant's reasonable understanding of the promise at the time the plea was entered. Principles of general contract law guide the analysis. The court looks to the express terms of the agreement, and construes any ambiguity against the government, as the drafter of the agreement. In the agreement, the government reserved the right to oppose a motion for downward departure, and opposed Peterson's claim that his behavior was aberrant. This was not an isolated incident. Therefore the United States did not breach the agreement. Nor did the prosecutor's references to facts in the PSR constitute a breach. The comments relating to acceptance of responsibility were ambiguous. Other comments the prosecutor made were more troubling. The prosecutor presented legal arguments concerning evidence before the court at the sentencing hearing. Where the government obtains a guilty plea predicated in any significant degree on a promise or agreement of the attorney, such promise must be fulfilled. However, the minimal comments did not amount to plain error. The district court only considered the facts presented at the hearing.

Death Penalty;  Habeas Corpus (28 U.S.C. § 2254) - Ineffective Assistance of Counsel, Stipulated Facts

Stouffer v. Reynolds, 99-6327 (June 7, 2000);  (Robert R. Nigh, Jr., Tulsa, Oklahoma)

HELD: 

Previously, the circuit vacated the district court's order denying habeas relief and remanded for further hearing. On remand, the district court found that Stouffer had been denied effective assistance of counsel at both the trial and penalty phases. The state appealed, arguing that Stouffer failed to show prejudice as required by Strickland v. Washington. The state entered into detailed stipulations of fact, but nonetheless claimed the court erred in considering the facts agreed upon in the stipulations. The state argued that these facts constitute new evidence that had not been raised in state court, and thus that the district court violated the exhaustion rule.

(1) The court held it was sophistic for the state to claim the district court should have disregarded facts to which the state had stipulated. Stipulated facts lead to the conclusion of prejudice under Strickland.

(2) The question is not whether counsel's ineffectiveness must be demonstrated by showing the trial would have resulted in an acquittal, but whether the omitted evidence creates a reasonable doubt that did not otherwise exist.

Downward Departure - Aberrant Behavior, Review Standard, Post Offense Rehabilitation, Intoxication, Cooperation

United States v. Benally, 99-2145 (June 9, 2000);  (Roger A. Finzel, FPD, Albuquerque, New Mexico)

Benally was convicted of aggravated sexual abuse of a child in Indian country. The district court departed downward based on aberrant behavior. The circuit reversed the government's appeal.

HELD: 

(1) The circuit rejected the government's argument that aberrant behavior should not be considered in cases involving serious, violent felonies for which probation is unavailable. Instead, since Koon, the aberrance of a criminal act is an encouraged factor for departure.

(2) A downward departure is reviewed for abuse of discretion. The circuit uses the four part test. In determining what constitutes aberrant behavior the sentencing court should evaluate the totality of the circumstances. This does not mean the court may base its aberrant behavior finding on otherwise impermissible factors. Impermissible factors include forbidden factors, discouraged factors not present to an exceptional degree, and encouraged factors already taken into account that are not present to some exceptional degree. A departure based on aberrant conduct may be based on the fact that a defendant had not engaged in any prior criminal activity. But there must be some unique circumstances besides the fact that the defendant has never before committed that crime. If a departure based on lack of criminal history is forbidden, it is likewise impermissible to base an aberrant behavior departure on lack of prior criminal conduct.

(3) Post-offense rehabilitation is considered in the context of acceptance of responsibility, and may not serve as a basis for departure unless it is present to an exceptional degree.

(4) The court may not depart downward based on intoxication. But viewed in the context that Benally had gained insight into the role his alcohol abuse played in his offense and had resolved not to repeat the conduct, the findings of intoxication and post arrest sobriety are not patently impermissible. But that does not mean the findings were relevant for aberrant behavior.

(5) Because the guidelines account for cooperation and assistance, the factor is not categorically prohibited. It is best characterized as an encouraged factor.

(6) The circumstances pertaining to post-arrest rehabilitation, intoxication, post-arrest sobriety, and cooperation/assistance are legally permissible factors under the guidelines. The next question is whether the circumstances are present to such an exceptional degree as to take the case out of the heartland. The court reviews the district court's findings for abuse of discretion. The circuit concluded that Benally did not undergo an exceptional degree of rehabilitative efforts prior to sentencing, and that the test did not establish that his conduct was aberrant. In addition, Benally's intoxication, and acknowledgment that alcohol played a role in the offense, did not support a departure based on aberrant behavior. And in the absence of an explanation or evidentiary support, the district court's reliance on Benally's cooperation and assistance as grounds for a downward departure was an abuse of discretion. Combining legally impermissible and factually inappropriate grounds for departure cannot make the case one of the extremely rare cases contemplated under §5K2.0, based on a combination of circumstances, to remove a case from the heartland.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Statute of Limitations, Factual Predicate Discovered With Due Diligence

Easterwood v. Champion, 99-7103 (June 12, 2000)

This habeas action raises the question of whether the district court erred in dismissing Easterwood's substantive competency claim as time barred under 28

U.S.C. § 2244(b).

Easterwood was charged in Oklahoma with first degree murder. In his defense, he claimed he was insane at the time of commission of the act and insane at the time of trial. He presented several witnesses in support of this. The state presented a single expert, Dr. Garcia, who testified that Easterwood was not insane at the time of the offense and was competent to stand trial. Easterwood was convicted. This occurred in 1979.

On April 10, 1997, the circuit issued Williamson v. Ward, in which it discussed the fact that Dr. Garcia in 1979 was suffering from severe untreated bi-polar disorder which was possibly severe enough to impair and distort his diagnostic judgment. Easterwood discovered this case on August 12, 1998 in the prison law library, and filed an application for leave to file a successive habeas petition.

HELD: 

Under §2244(d)(1)(D), a habeas petition may be brought within one year of the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. The factual predicate here is the mental instability of Dr. Garcia. The district court held that Easterwood could have discovered this information on the date the Williamson opinion was issued, April 10, 1997. The circuit however held that the date an opinion becomes accessible in the prison law library would be the date it is discoverable by due diligence, and not the date the opinion was issued. The law library supervisor did not receive a copy of the opinion until July 15, 1997 and therefore the one year time period began to run on that date. Easterwood filed a post conviction application in Oklahoma which tolled that time limitation. And the period was further tolled by the time that Easterwood's request to file a successive habeas petition was pending. Easterwood's filing was timely.

Right to Self-Representation - Unequivocal, Waive Counsel, Purpose of Delay;  Indictment - Sufficiency, Words of Statute;  Sufficient Evidence;  Bank Fraud - Elements, Bank Put at Potential Risk;  Flight;  Government Misconduct - Perjured Testimony;  Upward Departure - Criminal History;  Compel Return of Property (Rule 41(e)) - Proper Venue, Jurisdiction, Forfeiture

United States v. Akers, 99-1089 (June 12, 2000)

HELD: 

(1) The denial of a defendant's right of self-representation is not subject to harmless error analysis. The court reviews de novo whether a constitutional violation occurred, and reviews for clear error the fact findings underlying the decision to deny the request for self-representation. A defendant has a constitutional and statutory right to waive his right to counsel and represent himself. The right is not absolute, and when faced with a situation of potential abuse, the district court may properly impose restraints on the right to reject counsel to prevent the right from being manipulated. The defendant must clearly and unequivocally assert his intention to represent himself. He must knowingly and intelligently relinquish the benefit of representation, and the defendant must make his assertion in a timely fashion. The district court properly denies a request for self-representation where it finds the request was made to delay the trial. Akers' motion was timely, made before trial. The district court found the motion was made for delay. If a trial court determines that a defendant has made an unequivocal, intelligent, and timely request for self-representation that is not merely a ploy to delay, it arguably would be an abuse of discretion and denial of due process to deny a request for continuance.

(2) The court reviews de novo the sufficiency of an indictment. The court will find the evidence sufficient if, 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 crime beyond a reasonable doubt. The court rejected Akers' challenges to the sufficiency of the indictment, charging uttering and possessing a counterfeit security, and to the sufficiency of the evidence.

(3) The elements of bank fraud are that the defendant knowingly executed or attempted to execute a scheme to defraud or to obtain property by means of false or fraudulent pretenses, representations or promises, that the defendant did so with intent to defraud, and the financial institution was then insured by the FDIC. It is generally sufficient that an indictment set forth the offense in the words of the statute itself.

(4) Under 18 U.S.C. § 1344(1), the government need not prove the bank suffered monetary loss, only that the bank was put at potential risk by the scheme to defraud. This potential risk element is not necessary under § 1344(2).

(5) Akers fled from the halfway house two weeks after the district court denied his motion to continue and two weeks before his trial was to begin. Flight is not sufficient in itself to establish guilt, but may be considered in the light of all other facts.

(6) The court rejected Akers' claim that the government knowingly introduced false testimony before the grand jury.

(7) The district court granted the government's motion for upward departure based on Akers' exceptional criminal history. The guidelines encourage an upward departure if reliable information indicates the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct. The district court did not abuse its discretion in finding Akers' criminal history exceptional to warrant an upward departure. The record supports the factual basis underlying the departure and the degree of departure was reasonable.

(8) The court reviews for abuse of discretion a district court finding that it lacked jurisdiction over a motion to compel return of property under Rule 41(e). Rule 41 provides that a person aggrieved by deprivation of property may move the district court, for the district in which the property was seized, for the return of property. Akers had been arrested in Kansas and there was a civil forfeiture action in the District of Kansas. The property was involved in an act of bank fraud not an issue in the prosecution in the District of Colorado, which is the subject of this appeal. Where the underlying criminal proceedings have concluded, the proper venue for a Rule 41 motion is in the district in which the property was seized. The District of Colorado never had any control over the property Akers sought to recover. No civil forfeiture was filed in the District of Colorado for purposes of jurisdiction under 28 U.S.C. § 1355 or 18 U.S.C. § 981. The forfeiture action in Kansas was unrelated to the criminal prosecution in Colorado.

Judgment of Acquittal - Review Standard, Kickback, Conspiracy, Good Faith Reliance Defense;  Indictment - Variance, Acquittal of Attorneys, Narrowing the Conspiracy; Instructions - Anti-Kickback Act, One Purpose to Induce Referral; Appellate Procedure - Issue Waived by Failure to Cite to Record

United States v. McClatchey, 99-3274 (June 13, 2000)

McClatchey was convicted of conspiracy and violating the Anti- Kickback Act. The district court for the District of Kansas granted a motion for judgment of acquittal on both charges, concluding there was insufficient evidence of specific intent to violate the act. Alternatively, the court ruled that McClatchey would be entitled to a new trial based on prejudicial variances between the indictment and the evidence. The circuit reversed both rulings.

(1) The circuit gives no deference to a district court's decision to grant a post-verdict motion of judgment of acquittal. That is reviewed de novo. To convict of conspiracy and the substantive charge of violating the act, the government needed to prove beyond a reasonable doubt that McClatchey knowingly and willfully joined a conspiracy with specific intent to violate the act. Although the 1993 contract appears to encompass a legal arrangement, the evidence supports a reasonable inference that McClatchey would never have supported negotiating and entering into that contract, absent his intent to induce the LaHues to continue referring their patients to Baptist. The evidence permitted the jury to reject McClatchey's good faith reliance on counsel defense, and instead find he harbored specific intent to violate the act.

(2) Whether a variance between an indictment and the case at trial is sufficiently prejudicial to warrant a new trial is a question of law reviewed de novo. A variance arises when the evidence aduced at trial establishes facts different from those alleged in the indictment. A shift in the government's theory from the one set out in the indictment to that at trial may also constitute a prejudicial variance. McClatchey argues that the acquittal of his lawyers created a shift in the theory of McClatchey's involvement in the conspiracy. However, McClatchey's good faith reliance defense required the jury to consider whether he had made full disclosure to the attorneys and whether he followed their advice.

(3) The attorneys' acquittal occurred at the close of the government's case before McClatchey presented his defense and took the stand. Even if the acquittal created a variance, it did not substantially prejudice McClatchey.

(4) The indictment alleged that all seven indicted conspirators engaged in a conspiracy to allow the LaHues to enter into illegal arrangements with Baptist and six other hospitals. The district court ruled that the evidence failed to prove that McClatchey, Anderson or Keel were part of a conspiracy involving the six other hospitals, and limited all evidence related to the other hospitals to the charges against the LaHues. The circuit found that any variance by narrowing the conspiracy charge did not substantially prejudice McClatchey.

(5) The court reviews the district court's decision to give a particular jury instruction for abuse of discretion, and considers the instructions as a whole de novo. McClatchey claims a defendant should not be convicted under the act when his offer or payment of remuneration was motivated merely in part to induce referral, but rather the motive to induce referrals must be the defendant's primary purpose. Whether the "at least in part" or "one purpose" standard constitutes a correct interpretation of the act is an issue of first impression in this circuit. McClatchey urges that the test set out in the instruction was too broad. Three circuits have decided the one purpose test is appropriate. The circuit held that a person who offers or pays remuneration violates the act, so long as one purpose of the offer or payment is to induce patient referrals. Therefore, McClatchey is not entitled to a new trial.

(6) The circuit refused to consider McClatchey's claim regarding co-conspirator hearsay evidence because McClatchey failed to identify the specific statements or provide citations to the record. The issue is waived on appeal.

Romero v. Furlong, 98-1430, 99-1035 (June 13, 2000);  (Howard A. Pincus, FPD, Denver, Colorado)

Romero was convicted of second degree burglary and theft over $300. Pursuant to the habitual offender statute, Romero was sentenced to life imprisonment. This is a habeas action challenging the constitutionality of his conviction and his classification as a habitual offender.

Claudia Jordan initially represented Romero. Prior to trial, the prosecution announced it intended to call Romero's former attorney as a witness during the habitual criminal phase. The former attorney was also a public defender along with Ms. Jordan. Jordan was concerned about a conflict of interest. The trial court appointed private counsel to represent Romero during the habitual criminal phase. Before trial, the state offered Romero a 16 year sentence in exchange for a guilty plea. Romero rejected the offer. Jordan told him he would likely be convicted and urged him to accept the offer.

On direct appeal, Romero claimed he was denied effective assistance of counsel due to an actual conflict of interest, and that three of the five prior guilty pleas supporting the habitual criminal adjudication were not knowing and voluntary. The court rejected those claims. Then Romero filed a motion for post conviction relief, urging that because he thought Jordan had a conflict of interest, it was impossible to trust her and there was a breakdown in their relationship. The state urged that this new ineffectiveness claim was procedurally barred, but the state court found no procedural bar, and held an evidentiary hearing at which it heard testimony from Romero and Ms. Jordan. The court ruled that Romero had not been denied effective assistance of counsel. The court of appeals refused to consider the merits of this claim on appeal, holding it was procedurally barred.

Romero filed a habeas action in 1995 arguing imputed disqualification of Jordan, actual conflict of interest, and complete breakdown. He also challenged his prior convictions. The magistrate found Romero was denied effective assistance due to the complete breakdown of his relationship with his lawyer, and determined that, although one prior conviction was unconstitutional, the other four sustained the classification as a habitual criminal. The district court rejected the magistrate's recommendation as to ineffective assistance of counsel.

HELD: 

(1) Where this petition was filed in May 1995, the AEDPA does not apply.

(2) The court did not consider the procedural bar issues, because it found the case could be affirmed on the merits more easily.

(3) The district court did not need to hold an evidentiary hearing to develop the factual basis for the ineffectiveness claim. The court gives a presumption of correctness to findings of a state court after a hearing. Because Romero did not show that any exception to the presumption applies, the circuit was bound by the state court's determination that no complete breakdown of communication occurred.

(4) In deciding whether a complete breakdown in communication renders representation ineffective, the court considers whether a timely motion requesting new counsel was made, whether the trial court adequately inquired, whether the conflict was so great that it resulted in total lack of communication preventing an adequate defense, and whether the defendant substantially and unjustifiably contributed to the breakdown to communication.

(5) At the time of Romero's sentencing, Colorado law mandated that an individual convicted of a felony after three prior felony convictions should receive a life sentence. The state introduced proof of conviction of five separate felonies. Romero unsuccessfully challenged the validity of three of these, and argues they were constitutionally defective. He could not establish that all three were unconstitutional. A guilty plea is not voluntary unless a defendant has received real notice of the true nature of the charge against him. As to the 1980 guilty plea to attempted escape, Romero argued the colloquy misinformed him as to a material element, distinguishing between intent to escape and acting with intent to avoid the due course of justice. The circuit rejected the claim that this plea was involuntary and unintelligent.

Death Penalty;  Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Certificate of Appealability, Review Standard;  Instructions - Definition of Reasonable Doubt, "Substantial Doubt", "Willing to Act";  Prosecutorial Misconduct - Closing Argument;  Procedural Bar;  Aggravating Factors - State Law;  Indictment - Sufficient

Tillman v. Cook, 98-4160 (June 15, 2000)

HELD: 

(1) Tillman filed this habeas corpus action from his conviction of first degree murder and death sentence in Utah. This case is governed by the AEDPA. The showing for a certificate of probable cause is the same as that required for a certificate of appealability. The circuit had to review Tillman's claims because § 2253 requires the COA to indicate which specific issue or issues satisfy the necessary showing. Because he filed the federal habeas before the effective date of the AEDPA, the Act does determine the right to appeal, but does not govern review of the district court's order. Under pre-AEDPA law, the court will presume the district court's fact findings for clear error and its conclusions of law de novo. Relief may be granted only upon violation of a constitutional right.

(2) Tillman challenges the constitutionality of the reasonable doubt instruction given to the jury in the guilt phase, arguing it lowered the state's burden of proof. The question is whether new rules regarding erroneous reasonable doubt instructions may be applied retroactively. The court held that the remedy for an unconstitutional reasonable doubt instruction must be applied retroactively based on Teague. A reasonable doubt instruction is central to an accurate determination of innocence or guilt. The Cage rule satisfies the second Teague exception.

(3) The Constitution neither prohibits nor requires trial courts to define reasonable doubt. The sufficiency of a reasonable doubt instruction is a legal question reviewed de novo. In Monk v. Zelez (10th Cir.), the court held that a reasonable doubt instruction combining substantial doubt language with willing to act language was constitutionally deficient. In that case, the circuit stressed it was the combination of language that required reversal. Like the instruction in Victor, and unlike the instructions in Cage and Monk, the instruction in Tillman's case distinguishes between a real substantial doubt, and one that is merely possible or imaginary. Thus the language was not error. The use of the substantial doubt language was cured.

(4) The Supreme Court has strongly disfavored the "willing to act" language, as distinguished from an instruction that talks in terms of the kind of doubt that would make a person hesitate to act. The "hesitate to act" standard gives a common sense benchmark for just how substantial such doubt must be. However, the "willing to act language" is not reversible error in itself. Since the substantial doubt language was cured, the willingness to act language in an otherwise unobjectionable instruction is not grounds for habeas relief.

(5) Tillman also claims prosecutorial misconduct in closing argument in rebuttal, stating that, if Tillman were not executed, he would be free to commit more acts of violence in 15 years. The district court held the state waived any argument that Tillman failed to exhaust state remedies. The rule of procedural default is grounded in comity and is not jurisdictional. The Utah court addressed the merits of this issue on direct appeal. The state court did not apply procedural bar and therefore the circuit addressed the merits. Not every improper remark will amount to a federal constitutional violation. Relief may be granted only where the remark so infected the trial with unfairness as to make the resulting conviction a denial of due process.

(6) The information charged Tillman with first degree murder by intentionally causing death while engaged in commission of a burglary or aggravated burglary, arson or aggravated arson. These aggravating factors must be proved beyond a reasonable doubt. The jury returned a general verdict of guilty rather than a specific statement of which aggravating factor was found beyond a reasonable doubt. Tillman challenges the proof as to the arson. State law determines this issue, and the circuit accepted the state court's interpretation of Utah law holding that misdemeanor arson satisfies the statute.

(8) Th jury instructions properly communicated the elements of first and second degree murder.

(9) The circuit denied a certificate of appealability based on Tillman's claim that three of five State Supreme Court justices had dissented.

Habeas Corpus (28 U.S.C. § 2254);Guilty Plea - Involuntary;  Procedural Bar - Failure to Appeal;  Exhaust State Remedies;  Ineffective Assistance of Counsel - Gross Misadvice as to Parole Eligibility, Raised in Post Conviction;  Evidentiary Hearing

Beavers v. Saffel, 99-6154 (June 16, 2000)

This is a habeas action. Beavers plead guilty to first degree murder. Beaver killed a man who had begun touching and making sexual remarks to his wife. Charges were filed against Beavers, and his wife as an accessory. Beavers plead guilty. He did so because the state used charges against his wife to coerce him to plead guilty, and his wife urged him to plead guilty so charges against her would be dropped. About a month after the plea, the time to file an appeal had elapsed and the charges against his wife were dropped. Beavers also has claimed that his attorney said he would be paroled in 10 to 12 years, whereas the average time to make parole on a murder life sentence is 22 ½ years. Beavers did not file a direct appeal because the charges had not yet been dismissed against his wife. A year after judgment he filed an application for hearing, and to withdraw plea or to appeal out of time raising a number of errors. He also filed a mandamus. These were denied. A subsequent motion for post-conviction relief was also denied. The federal district court held that Beavers was procedurally barred from bringing his claims.

HELD: 

(1) The right to challenge a sentence in post-conviction is not constitutionally based. Any advice the OCCA gave concerning such right is beyond the scope of habeas review.

(2) Normally a petitioner is required to exhaust his state remedies, or show cause and prejudice or fundamental miscarriage of justice. The latter standard requires a defendant to make a colorable showing of factual innocence. Having failed to show sufficient reason for failing to seek direct appeal, Beavers' claim of involuntary plea is procedurally barred.

(3) A claim of ineffective assistance of counsel is reviewed de novo. Raising an IAC claim for the first time in a second application for post-conviction relief is insufficient to preserve a claim for federal review. A defendant is not procedurally barred by failing to raise such claim on direct appeal. Beavers' IAC claim was raised in his first application and is not procedurally barred. The Oklahoma courts did not rule on the merits, but denied the claim in the context of Beavers' claim as to his failure to appeal. A federal court will consider an IAC claim where a petitioner has been afforded no opportunity to develop the claim. The circuit would reach the merits. Gross misadvice concerning parole eligibility can amount to ineffective assistance of counsel. Beavers must show deficient performance and prejudice. If the facts alleged by Beavers are true, he would be entitled to relief. Beavers is entitled to a hearing.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Time Bar, Continued Prior Litigation

Romo v. Oklahoma Department of Corrections;  (Gloyd L. McCoy, Oklahoma City, Oklahoma)

The district court dismissed Romo's habeas petition as time barred. The circuit granted a certificate of appealability on the timeliness issue. Romo's direct appeal was affirmed on September 22, 1993. He did not seek certiorari review. The time period for filing a habeas petition expired well before the effective date of the AEDPA. Petitioner had one year from April 24, 1996 in which to file. The one year limitation period is tolled by any state post-conviction application properly filed during the year. Even considering that tolling, his petition was due by August 23, 1997, but he did not file his petition until June 8, 1998. Romo claims his petition is a continuation of prior litigation filed by a large number of petitioners before the AEDPA was enacted, referencing Harris v. Champion. The court rejected this claim of continuation. The pendency of the Harris litigation did not prevent Romo from exhausting state remedies. Because the timeliness claim is dependent upon the Harris tolling claim, the petition is untimely.