Chambers v. Colorado Department of Corrections, 97-1023 (March 7, 2000)

The case presents whether the Colorado Department of Correction's action in classifying Chambers as a sex offender and requiring his participation in the sex offender treatment program (SOTP) violates the ex post facto clause and implicates a liberty interest under the due process clause of the Fourteenth Amendment.  Chambers began serving a 39 year sentence for aggravated robbery and attempted theft in 1985. He was classified as a sexual offender in 1987. He had S-2 status, as a sex offender who has committed a sex offense but was not convicted. The DOC did not commence its prescribed sex offender treatment at the time. In the meanwhile, Chambers completed his GED, vocational training, a basic mental health program, and was no management problem. He received good time and earned time credits. In 1992, a case manager reviewed his file and noted a charge of first-degree sexual assault. The state decided to pursue treatment under the program based on the victim's affidavit. Chambers denied the sexually assaultive behavior signifying "ineligibility" to participate in the program. Because he did not participate, the case manager recommended reducing the monthly 10 days of earned time credit to seven days credit. This three day reduction triggered a series of law suits by Chambers. The circuit has affirmed dismissal, finding earned time credits were a matter of discretion. Later the district court held the challenge to the classification did not violate Chambers' constitutional rights. At oral argument, the DOC said that the sex offender treatment program did not even apply, and Chambers' classification was based on an internal DOC policy which was not limited to inmates convicted of sex offenses. The case was remanded for clarification.

HELD: 

(1) Review of a grant of summary judgment is de novo. Summary judgment is appropriate if, after reviewing all the evidence submitted in the light most favorable to the non-movant, no genuine issue of material facts survives.

(2) The constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. The law must be retrospective. Application of the sex offender treatment program to Chambers has not increased his punishment, for he possesses no vested right in a particular parole date or parole hearing eligibility date. The SOTP does not criminalize conduct that was legal before its passage. In rehabilitative matters, prison officials may consider any history in the inmate's record that it may determine requires treatment. There is no ex post facto violation.

(3) The due process clause guarantees due process only when a person is deprived of life, liberty, or property. Although the DOC has not created a liberty interest in a prisoner's not being classified as sex offender, it has, through its administrative policy, applied the SOTP to Chambers in such a way as to permit him to continue to receive the benefit of the maximum amount of earned time credit. The removal of that benefit implicates Chambers' liberty interest in not being labeled a sex offender, a label replete with stigmatization. The consequences of the label are not a privilege, as the DOC insists, but something of value entitled to procedural due process. Therefore the circuit reversed the district court's grant of summary judgment and ordered entry of judgment for Chambers, enjoining the DOC from withholding earned time credit on the basis of his refusal to admit being a sex offender. However, prison officials are entitled to qualified immunity and Chambers' claim for damages cannot be sustained.

Habeas Corpus (28 U.S.C. § 2254) - Death Sentence, AEDPA Standard of Review;  Confession - Reinitiate Communication, Waiver of Right to Counsel and Silence, Harmless Error;  Prosecutorial Misconduct - Comment on Right to Silence, Diminish Jury's Sense of Responsibility, Fair Trial;  Ineffective Assistance of Counsel - Procedural Bar, Strickland Test, Errors in Sentencing, Investigate Mitigation

Pickens v. Gibson, 99-5021 (March 7, 2000);  (Vicki Ruth Adams Werneke, FPD, Oklahoma City, Oklahoma)

This is a habeas action under 28 U.S.C. § 2254 from an Oklahoma first degree felony murder conviction and death sentence.

HELD: 

(1) The AEDPA sets forth the appropriate standard of review. The court presumes state court findings are correct. If the claim was not heard on the merits by the state courts and the federal district court makes its own determination, the court reviews the district court's conclusions of law de novo and findings of fact for clear error. A petitioner is only entitled to habeas relief if he can show that the claim adjudicated by the state courts resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

(2) Petitioner invoked his right to counsel. He could not be subjected to further interrogation unless he initiated it himself. The state court found Pickens reinitiated communication by asking what charges were being brought. This is a fact finding that the court presumes to be correct.

(3) Where there is no violation of the Edwards rule, the question becomes whether waiver of right to counsel and right to silence has occurred. Police officers read Pickens his Miranda rights. His waiver was voluntary, knowing and intelligent as determined by the state courts. This was not contrary to or an unreasonable application of clearly established Supreme Court precedent.

(4) At sentencing the state admitted a video taped confession to a third armed robbery of a convenience store in which Pickens killed the clerk. That occurred four days prior to the robberies at issue in this case. At the time of sentencing, the prosecution for this other robbery and murder was pending. Pickens was subsequently convicted of those crimes, but the convictions were reversed. The admission of this confession was constitutional error. But the OCCA found the error harmless beyond a reasonable doubt. The circuit had grave doubt as to the effect of this unconstitutionally obtained confession, and held that the OCCA's harmless error determination was not reasonable, and granted Pickens habeas relief from his death sentence.

(5) The circuit must uphold the state court's summary decision regarding prosecutorial misconduct unless its independent review of the record and pertinent federal law persuades the circuit that its result contravenes or unreasonably applies clearly established law or is based on an unreasonable determination of the facts in light of the evidence presented. Pickens claims the prosecutor's remarks infringed on his right not to testify. Pickens need not show that the comment rendered the entire trial fundamentally unfair. Error in permitting the prosecutor to comment on the petitioner's right to silence is subject to harmless error analysis. The OCCA found the comments to be error but harmless. The circuit could not say that the OCCA was unreasonable in determining harmless error. The prosecutor's statements accurately reflected the law that a defendant need not testify.

(6) Pickens also urges that the prosecutor's comments improperly diminished the jury's sense of responsibility in the sentencing decision. The OCCA held that, in the context of the entire closing argument, the prosecutor was responding to the argument of defense counsel. The state court's application of Caldwell was not unreasonable.

(7) As to general comments not implicating any specific constitutional right, Pickens must establish that the remarks rendered his trial fundamentally unfair. The circuit rejected this claim.

(8) Procedural bar will preclude federal habeas review if Pickens were represented by different attorneys at trial and on direct appeal, and his claims could have been decided on the trial record alone. The circuit did not address whether the attorneys, as members of the same public defender office, must be considered one attorney. Instead, the circuit addressed the merits of the ineffective assistance of trial counsel claim and rejected it. Pickens must show deficient performance and prejudice. Counsel's failure to make an opening or closing argument was reasonable strategy in the guilt phase and, in any event, there was no prejudice. The evidence was overwhelming, such that there was no reasonable probability the jury would have reached a different result had counsel challenged the identification procedure.

(9) Where alleged errors occur in the sentencing phase, the prejudice inquiry is whether there is a reasonable probability that, absent the errors, the sentencor would have concluded that the death penalty was not warranted. Counsel has a duty to conduct reasonable investigation of mitigating evidence. In a capital case, the attorney's duty to investigate all reasonable lines of defense is strictly observed. Pickens failed to assert what additional mitigating evidence counsel should have investigated and presented.

(10) The circuit affirmed the district court's denial of habeas relief from the first degree murder conviction but reversed as to the death sentence and remanded to the district court to grant the writ, conditioned upon the state court's conducting a new sentencing trial or commuting petitioner's sentence to life imprisonment or life imprisonment without parole.

Illegal Aliens - Sufficient Evidence, No Need to Introduce Deportation Order

United States v. Landeros-Mendez, 99-8018 (March 18, 2000)

Landeros appeals from his conviction of illegal reentry by an alien previously deported and one count of unlawful firearm possession.

HELD: 

(1) In reviewing the sufficiency of the evidence the court reviews the record de novo. The evidence is viewed in the light most favorable to the government, and the court must determine whether there was direct and circumstantial evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Landeros was convicted of violating § 1326(a) and (b)(2). The government proved he was physically expelled from the United States. He challenges whether he had been deported or removed because the government did not introduce an order to that effect. The government need not introduce such order.

Motion to Suppress - Review Standard, Consent, Scope of Search;  Withdraw Guilty Plea - Factors to Consider, Discretion Standard;  Amount of Drugs - Pure or Mixture, Methamphetamine

United States v. Gigley, 99-3025 and 99-3048 (March 24, 2000);  (Marilyn M. Trubey, FPD, Topeka, Kansas)

Gigley entered a conditional plea of guilty to possession of methamphetamine with intent to distribute. She was sentenced to 10 years imprisonment. She appeals the denial of her motion to suppress, and the government cross-appeals on the sentencing.

HELD: 

(1) In reviewing the denial of a motion to suppress, the court reviews the evidence in the light most favorable to the government. The court reviews historical fact findings for clear error, and the ultimate determination of the constitutionality of the law enforcement official's actions is a question of law reviewed de novo. The circuit did not reach the question of reasonable suspicion to search the van, because the circuit held the district court did not clearly err in finding that Gigley voluntarily consented to the search of her van. Because a consensual encounter is voluntary, such encounter does not constitute a seizure. Valid consent is that which is freely and intelligently given, and the court looks at the totality of the circumstances. The scope of a search is limited by the breadth of the consent given. The court applies an objective reasonableness standard. The detention ended when the officer returned Gigley's license and registration and handed her a warning citation. The consensual encounter began when Gigley gave the officer permission to ask her more questions. The fact she was sitting in the front passenger seat of the patrol car, without more, does not make her consent involuntary. Nor does her hesitation make the consent involuntary. The search did not exceed the scope of the consent.

(2) Gigley challenges the district court's denial of her motion to withdraw guilty plea, on the grounds that her plea was not knowing and voluntary and that she received ineffective assistance of counsel. In rare instances, an ineffective assistance of counsel claim may need no further development prior to review on direct appeal. The record is sufficiently developed to allow review of this claim. After Gigley failed to appear for sentencing, she was represented by different counsel. New counsel filed the motion to withdraw the guilty plea.

(3) The court reviews the denial of a motion to withdraw guilty plea for abuse of discretion and considers whether the defendant asserted her innocence, prejudice to the government, delay in filing the motion, inconvenience to the court, defendant's assistance of counsel, whether the plea was knowing and voluntary, and waste of judicial resources. The record supports the finding that the defendant entered her guilty plea voluntarily and that she was provided effective assistance. She did not assert her innocence. The two year delay between plea and filing the motion was the result of a failure to appear. The government would be prejudiced by delay. Gigley has not shown an interest that overcomes the inconvenience to the courts and the waste of judicial resources.

(4) In its cross appeal, the government urges the district court erred in relying on the quantity of the methamphetamine mixture to find the base offense level for sentencing. The court reviews the district court's fact findings for clear error, and interpretation and application of the guidelines de novo. The government has the burden of proving the quantity of drugs by a preponderance. The guidelines provide the offense level is determined by the entire weight of the mixture of the substance, or by the weight of the PCP (actual) or methamphetamine (actual), whichever is greater. The district court should have used the quantity of actual methamphetamine to find the base offense level because it produces a higher sentence.

Failure to Appear - Consecutive Sentence, Grouping, Obstruct Justice;  Guideline Interpretation - Review Standard, Clarifying Amendment;  Grouping - Procedure

United States v. Gigley, 99-3049 and 99-3062 (March 24, 2000);  (Marilyn M. Trubey, FPD, Topeka, Kansas)

HELD: 

(1) The court reviews the district court's statutory interpretation de novo, and reviews application of the sentencing guidelines de novo. Under 18 U.S.C. § 3146(b)(2), the district court is to impose the sentence for failure to appear consecutively to the sentence for the underlying offense. When a defendant is convicted of both the failure to appear and the underlying offense, the failure to appear offense is treated as an obstruction of the underlying offense under §3C1.1. The circuit relied on its Lacey, 969 F.2d 926, decision for the proposition that the underlying offense and failure to appear should be grouped. The circuit noted that the grouping issue is the subject of a circuit split. Other circuits find that the guidelines are in conflict with §3146(b)(2), and have refused to group the failure to appear with the underlying offense. The circuit explained that § 3146(b)(2) does not require imposition of a sentence of imprisonment, and thus the exception to the grouping rules in §3D1.1(b) for statutes requiring consecutive sentences does not apply. Section 3D1.1(b) directs the district court not to group any count for which the statute specifies a term of imprisonment to be imposed, and requires that such term of imprisonment be imposed to run consecutively.

(2) The court may apply clarifying amendments retroactively to help the court understand older versions of the guidelines. The amendment to §3D1.1 is clarifying because it does not overrule existing precedent, it revises a commentary note rather than a guideline, and the authors characterized it as clarifying.

(3) Once the offenses are grouped, the district court is to determine the offense level of the group, set the total punishment, and impose consecutive sentences within the total punishment. This has the effect of insuring an incremental, consecutive punishment. Therefore the district court should have grouped the drug offense and failure to appear, and imposed the total punishment with consecutive sentences.

(4) The court did not need to reach Gigley's cross-appeal that the district court erred in adding two points for obstruction of justice based on presenting false documents. The court noted that this would not make a difference, because the offense level either way would be less than the offense level for the drug offense, so the drug offense will determine the combined offense level.

United States v. Wood, 99-7008 (March 29, 2000)

Wood is a physician who was indicted for first degree murder of a patient under his care at the VA Hospital. He was acquitted of first and second degree murder but convicted of involuntary manslaughter.

HELD: 

(1) In reviewing the sufficiency of the evidence, the court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. When reviewing the denial of a motion for judgment of acquittal made at the close of the government's case, the court looks only to evidence entered into the record at the time of that motion.

(2) First degree murder, second degree murder, and involuntary manslaughter all involve unlawful killing of a human being under 18 U.S.C. §§ 1111(a) and 1112(a). The difference is the requisite mens rea. First degree murder requires both malice aforethought, and the specific intent to commit an unlawful killing. A killing is committed with the requisite specific intent if it is willful, deliberate, malicious, and premeditated. Second degree murder is a general intent crime that requires only malice aforethought. Malice aforethought may be established by evidence of conduct that is reckless and wanton, and a gross deviation from the reasonable standard of care. Involuntary manslaughter is the unlawful killing of a human being without malice in the commission, without due caution and circumspection, of a lawful act which might produce death. The defendant's acts must amount to gross negligence as defined as wanton or reckless disregard for human life. The distinction between involuntary manslaughter and second degree murder is that the former does not require malice aforethought. However, the definitions of malice aforethought and "without due care and circumspection" developed in the case law use overlapping terminology and both refer to reckless and wanton behavior. The substantive distinction is the severity of the reckless and wanton behavior. Second degree murder involves reckless and wanton disregard for human life that is extreme in nature, while involuntary manslaughter involves reckless and wanton disregard that is not extreme in nature.

(3) Wood moved for judgment of acquittal, claiming that the evidence failed to prove the requisite intent to kill, premeditation and malice aforethought. The district court denied the motion but conceded it was troubled by the implications of that result. When ruling on a motion for judgment of acquittal, a district court should consider, not only whether the evidence will be sufficient to sustain a conviction of the offense charged, but also whether it would be sufficient to sustain a conviction on a lesser included offense. If the evidence is sufficient to sustain a conviction on the lesser but not the greater offense, the judge may submit only on the lesser charge. The evidence introduced in the government's case in chief was insufficient to prove that Wood killed the patient with premeditation or malice aforethought. Therefore, the district court erred when it denied Wood's motion for judgment of acquittal as to those offenses. The government's characterization of the evidence to support an inference of premeditation and malice aforethought is misleading and unpersuasive.

(4) Well intentioned but inappropriate medical care, standing alone, does not raise an inference that a killing was deliberate, willful, and premeditated. Rather, specific intent is properly inferred where the apparent purpose of the lethal act is to cause the victim's death. Likewise, Dr. Wood's treatment of the patient does not support an inference of malice aforethought sufficient to sustain a conviction of second degree murder. Instead the evidence was sufficient to support a conviction for involuntary manslaughter.

(5) Whether a defendant's due process rights were denied by delay in bringing an indictment is a question of fact reviewed for clear error. When seeking dismissal of an indictment based on pre-indictment delay, a defendant must establish the government intentionally delayed for tactical reasons and the delay caused him actual prejudice. Dr. Wood fails to demonstrate either.

(6) At trial, the district court refused to give Dr. Woods' proffered instruction, to the effect that it is not unlawful for a physician to adopt one of several proper methods of treatment. Although a criminal defendant is entitled to an instruction on his theory of the case, a trial judge is given substantial latitude in tailoring the instructions.

(7) A district court's decision to admit expert testimony is reviewed under the abuse of discretion standard. The expert's testimony intruded on the province of the jury, and was the sort of testimony Rule 704(b) is designed to prevent. Rule 704(b) prevents experts from expressly stating the final conclusion or inference as to the defendant's actual mental state.

(8) Under the particular circumstances of this case, the erroneous denial of Dr. Wood's first motion for judgment of acquittal, and the erroneous admission of expert testimony, constitute cumulative error requiring reversal.

United States v. Asch, 99-8005 (March 29, 2000)

HELD: 

(1) The district court has a duty to insure that a guilty plea is voluntary. This question is reviewed de novo.

(2) This case raises a question of first impression: whether a sentencing court, when determining the applicable sentencing range for an individual convicted of conspiracy to distribute drugs, can include in the quantity calculation drugs possessed for personal consumption. They cannot be considered when determining the statutory sentencing range, but can be considered for determining the guideline range.