Summary Judgment - De Novo Review;

Fifth Amendment - Sexual Abuse Treatment Program, Incrimination, Compulsion

Lile v. McKune and Simmons, 98-3292 & 98-3294 (September 5, 2000)

These are cross appeals arising out of a § 1983 civil rights action. The plaintiff is a prisoner convicted of aggravated kidnapping, rape and aggravated sodomy. Though not part of his original sentence, the Kansas Department of Corrections recommended that plaintiff participate in a sexual abuse treatment program (SATP). To be admitted, plaintiff is required to disclose his sexual history, including the crime and any uncharged sexual offenses. He refused to make any such admissions. He had plead not guilty to the charges, and testified that he had had consensual intercourse.

After pursuing administrative remedies plaintiff filed this action against the state. He argued that the SATP violated his Fifth Amendment right against self-incrimination and his Fourth Amendment right to privacy and bodily integrity. The district court granted summary judgment to plaintiff on the Fifth Amendment claim, and summary judgment to the defendants on the Fourth Amendment claim.

HELD: (1) The court reviews de novo the grant of a summary judgment.

(2) The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The incrimination element of the Fifth Amendment is satisfied here. As to the element of compulsion, that turns on whether the refusal to admit responsibility for charged and uncharged sexual offenses constitutes substantial penalties that are impermissibly coercive. The adverse consequences that plaintiff would face for refusing to participate in the SATP are the transfer to maximum security prison and resulting loss of privilege. Determining whether such action is compulsory for Fifth Amendment purposes depends on consideration of many factors. In Fandin, the Supreme Court held a constitutionally protected liberty interest will generally be limited to freedom from restraint which imposes a typical and significant hardship on the inmate in relation to the ordinary incidents of prison life. But nowhere does the Supreme Court hint that an individual attempting to show a violation of his Fifth Amendment privilege must have a protected liberty interest for compulsion to occur. The circuit agreed with the district court's assessment that the standard is set too high by grafting a protected liberty interest to a finding of compulsion. The Supreme Court has articulated several types of penalties that constitute impermissible compulsion, none of which is explicitly characterized as a deprivation of protected liberty interest. The deprivation and changes in environment are penalties sufficient to implicate the Fifth Amendment because they have substantial or potent effects on the inmate. Even if participation in the SATP is not officially required of every sex offender, the policy of imposing certain administrative consequences upon an inmate in the event he refuses to participate lends an element of compulsion. Defendants' policy would respond to the plaintiff's refusal to admit responsibility and disclose his sexual history by transferring him to a higher level of security and substantially restricting the privileges he had earned. The characterization of a state action as either withdrawing a privilege or imposing a penalty is indicative of whether the action constitutes compulsion. But this distinction should not be the absolute test for compulsion. The consequences attendant to an inmate's refusal to participate in the SATP are the same as those "punishments" automatically imposed for termination from work assignment for cause, offenses for which felony charges are filed by a state prosecutor, or disciplinary convictions. Thus, a transfer and resulting loss of privileges are properly characterized as imposing penalties. Another factor is whether the sanctions are automatic. The district court found that the prison administrative sanctions that attend a refusal to participate in SATP are automatically imposed. Therefore, there is a reasonable basis for concluding that the defendants attempted to attach an impermissible penalty to the exercise of the privilege against self-incrimination. But that does not complete the analysis.

(3) The court had to then balance the prison's penological interest against the prisoner's constitutional right. The court considers whether there is a valid rational connection between the prison regulation and the legitimate governmental interest, whether there are alternative means of exercising the constitutional right that remain open to prisoners notwithstanding the policy or regulation, what impact accommodation of the right would have on guards, other inmates, and the general allocation of prison resources, and whether there are obvious, easy to implement alternatives that would accommodate the prisoner's right at little cost to valid penological interests. There is a rational connection between the policy of having prisoners admit responsibility and disclose sexual history and the legitimate governmental interest in rehabilitation. There is no evidence that plaintiff has any alternative means of exercising his Fifth Amendment right. There is no evidence that accommodation of this right would have any negative affect on guards, other prisoners or prison resources. The most obvious and easy alternative to the challenged policy would be one contemplated by the Supreme Court since the inception of the Fifth Amendment right against self-incrimination, that being granting immunity or privileging the statements disclosed. The real balance turns on the seriousness with which the court has always treated the Fifth Amendment right against self-incrimination against the ease with which the state can accommodate or satisfy the right and still meet its legitimate program objective. The circuit affirmed the district court's grant of summary judgment to plaintiff on the Fifth Amendment claim.

(4) The Fourth Amendment claim is moot.

Illegal Alien (8 U.S.C. § 1326) - Plea Bargains, Downward Departure

United States v. Armento-Castro, 99-4155 (September 12, 2000)

Castro plead guilty to illegally reentering the United States after a prior deportation under 8 U.S.C. § 1326. He argued that the district court should depart downward because of sentencing disparity that exists among federal courts. Federal prosecutors in several districts allow defendants to plead to lesser improper entry charges under § 1325(a), while the united states attorney in Utah vigorously prosecutes these cases. The circuit held that the existence of sentencing disparities as to illegal reentry cases, arising from varying charging and prebargining policies of individual U.S. attorneys, does not provide an appropriate basis for a downward departure. Two other circuits have answered the question the same way. The decision of an out of district federal prosecutor does not constitute a mitigating circumstance under 18 U.S.C. § 3553(b). Even if the inter-district policy differences could qualify as mitigating circumstances, a departure is still prohibited under the guideline heartland analysis. In addition, the Sentencing Commission declined to implement any major changes in the plea bargaining and charging practices.

Plea Agreement - Breach, Failure to Object, Review Standard, Contract Law, Downward Departure

United States v. Peterson, 99-2042 (September 12, 2000)

(Judith A. Rosenstein, FPD, Albuquerque, New Mexico)

Peterson plead guilty to one count of aggravated sexual assault in violation of 18 U.S.C. §§ 1153, 2241(c) and 2245(2)(A). On appeal, Peterson argued that the government breached its plea agreement by opposing his motion for downward departure. The court applied a plain error standard and affirmed. The court granted the petition for rehearing, and applied a de novo standard of review and affirmed.

HELD: (1) The circuits are split on whether a defendant waives his right to appeal a claim that the government breached the plea agreement where he failed to object to the breach before the district court. Those courts who find the defendant waived the right review under plain error and other courts reviewed de novo.

(2) In determining whether the government breached a plea agreement, the court examines the nature of the promise and evaluates the promise 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 court's analysis.

(3) The government qualified its promise in the plea agreement not to impose a downward departure motion, by requiring that any such motion be made in good faith. Peterson's claim as to aberrant behavior was not made in good faith given his commission of many sexual assaults. The same good faith exception to the promise applies as to Peterson's arguments about age and health. Nor did the government breach its promise by referring to facts contained in the PSR. The government does breach by providing a legal characterization of the facts. The prosecutor only drew the court's attention to facts in the PSR indicating Peterson could receive treatment in federal prison and could have received a much longer sentence had he gone to trial.

(4) The prosecutor's remark in closing constitutes opposition to the motion for downward departure but is still not a breach. Taken as a whole, the prosecutor's comments reflect his opposition to the downward departure because the motion was not made in good faith.

(5) The petitioner appealed the district court's dismissal of a federal habeas petition as untimely under the one year limitations period of the AEDPA. The court had to decide whether the interval between successive state habeas proceedings is excluded from the limitations period when the second state petition is designated, but never formally approved, as an amendment to the first. The court reviewed the legal question de novo. The court held the interval between state habeas efforts is not excluded from the limitations. An affirmed dismissal of the proceeding.

(6) Under § 2244(b)(2), the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation. The language of the statute makes clear that the limitation period is tolled only which state post-conviction or other collateral review is pending.

(7) Petitioner urges that his self-styled "amended" habeas petition relates back to the initial petition resulting in a single continuous proceeding pending until the amended petition was finally resolved. He relies on a New Mexico rule that permits amendment to relate back to the date of an original pleading. However, the first state habeas proceeding had been reduced to a final unappealed judgment long before the amended petition was filed. New Mexico has a distinct provision under which a second suit may be deemed a continuation of a previously dismissed one, but this does not apply when the second suit is not commenced within six months of the initial disposition.

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

Statute of Limitations - Tolling, Time Between State Habeas Efforts, Relation Back

Rowe v. LeMaster, 99-2273 (September 13, 2000)

NEED COMPLETED DECISION - THIS WAS THE ONE YOU WROTE IN AS A NEW CASE

Habeas Corpus (28 U.S.C. § 2254) - Presumption of Correctness;

AEDPA - Standard for Relief;

Harmless Error - Necessity to Review Record;

Fourth Amendment - Full and Fair Hearing;

Stone v. Powell

Herrera v. Lemaster, 98-2060 (September 14, 2000)

(Peter Schoenburg, Albuquerque, New Mexico)

Petitioner was convicted in New Mexico of first degree murder and aggravated assault with a firearm. He appeals the district court's denial of habeas relief. He claimed that the trial court admitted evidence in violation of the Fourth Amendment. Petitioner argues the district court erred in applying a presumption of correctness to the state court's harmless error analysis and in denying federal habeas relief without first reviewing the state court record. The circuit agreed and remanded.

HELD: (1) Petitioner argued that the New Mexico Supreme Court's failure to apply the constitutional harmless error standard in Chapman resulted in a decision contrary to or an unreasonable application of that Supreme Court decision.

(2) In Stone v. Powell, the Supreme Court held that a state prisoner may not raise a Fourth Amendment claim on federal habeas review if he has been afforded a full and fair opportunity to litigate the claim. Because the New Mexico Supreme Court failed to apply the Chapman standard in assessing harmlessness, the circuit concluded petitioner did not receive full and fair consideration of his claim so that Stone is inapplicable.

(3) In response to petitioner's argument that Stone v. Powell no longer applies after the AEDPA, the circuit held that it was not persuaded that by enacting the AEDPA, Congress intended to expand a habeas petitioner's right to overturn a state court decision.

(4) The in district court afforded the state court's harmless error determination a presumption of correctness. But the presumption of correctness should not be applied to mixed issues of law and fact as the Supreme Court made clear in Williams v. Taylor, applying § 2254(d)(1) to an ineffective assistance of counsel claim, rather than § 2254(e)(2).

(5) When a state court fails to apply the proper constitutional standard of harmless error, the standard the federal court in habeas applies for assessing whether a constitutional error was harmless is whether the error had a substantial and injurious effect or influence in determining the jury's verdict under Brecht v. Abiahanfan. When applying the standard, the federal magistrate and district court judge accepted the New Mexico Supreme Court's analysis without reviewing the state court record. There is no indication the AEDPA has altered the requirement that a federal habeas court review the state court record before making a harmless error determination.

Drugs (§ 841) - Reasonable Cause to Believe Mental State, Sufficient to Impose Criminal Liability;

Void For Vagueness;

Instructions - Lesser Included Offenses, § 842(a)(a) is ot a lesser included offense of § 841

United States v. Rached Leo-Hojjaouri, 99-6241 (September 18, 2000)

Leo-Hojjaouri and others were charged with conspiracy to possess and distribute pseudoephedrine, and engaging in money laundering.

HELD: (1) In United States v. Saffo, the court rejected Leo-Hojjaouri's challenge to the § 841(d)(2)'s constitutionality with regard to a conviction and the requisite mens rea.

(2) When reviewing a statute for vagueness, the court indulges a presumption that it is constitutional. The void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Leo-Hojjaouri is one to whose conduct the statute clearly applies and therefore he cannot succeed in the challenge for vagueness.

(3) The court reviews de novo whether a lesser included offense instruction should have been given. There has to be a proper request, the lesser offense must have some but not all of the elements of the offense charged, the elements differentiating the lesser from the greater must be in dispute, and a jury could rationally convict of the lesser and accorded the greater offense. The language of 21 U.S.C. § 842(a)(11) requires proof that the person, to whom the laboratory supply was distributed, actually used or attempted to use that supply to manufacture a controlled substance or a listed chemical. Section 841(d)(2) does not require proof that the purchaser actually used or attempted to use the listed chemical to manufacture a controlled substance.

Drugs (§ 841) - Reasonable Cause to Believe Mental State Sufficient to Impose Criminal Liability;

Void For Vagueness;

Downward Departure;

Acceptance of Responsibility;

Safety Valve Reduction - Section 2D1.11 and §2S1.1 Do Not Make a Defendant Eligible

United States v. Saffo, 99-6276 (September 18, 2000)

Saffo and others were indicted for a conspiracy to possess and distribute pseudoephedrine in violation of 21 U.S.C. § 841(d)(2), and engaging in money laundering transactions.

HELD: (1) The court reviews de novo questions regarding a statute's constitutionality. Constitutional challenges to lack of mens rea requirement and vagueness are closely related. Section 841(d)(2) provides that any person who knowingly or intentionally possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance violates the statute. The court held that the "reasonable cause to believe" mental state is constitutionally sufficient to impose criminal liability. The existence of a mens rea is the rule of, rather than the exception to, principles of Anglo-American criminal jurisprudence. The scienter standard of "knowing or having reasonable cause to believe" is present in numerous federal statutes which impose felony punishments. Such standard has been described as imposing a sufficient mens rea requirement on a number of occasions. The standard involves a subjective inquiry that looks to whether the particular defendant accused of the crime knew or had reasonable cause to believe the listed chemical would be used to manufacture a controlled substance. This requires scienter to be evaluated through the lens of the particular defendant, rather than from the prospective of a hypothetical reasonable man. In this context "reasonable cause to believe" is akin to actual knowledge.

(2) When reviewing a statute alleged to be vague, courts must indulge a presumption that it is constitutional, and the statute must be upheld unless the court is satisfied beyond all reasonable doubt that the legislature went beyond the confines of the Constitution. The void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement. The evidence at trial demonstrated that Saffo is one to whose conduct the statute clearly applies and therefore she cannot challenge the statute for vagueness. The evidence shows she knew the illegality of her activities and this is not a situation where she could not reasonably understand that her contemplated conduct is proscribed.

(3) Absent the trial court's clear misunderstanding of its discretion to depart there is no jurisdiction to review a refusal to depart. The judge understood he had discretion to depart, but determined departure was not warranted, and therefore the circuit lacked jurisdiction to review that claim.

(4) Determination of acceptance of responsibility is a question of fact reviewed under a clearly erroneous standard. The defendant must show recognition and affirmative acceptance of personal responsibility for his criminal conduct. Because Saffo put the government to its proof, the question is whether this is one of the those rare situations in which a defendant may nonetheless clearly demonstrate acceptance of responsibility. Although Saffo did not deny that she committed the acts, she never admitted culpability, and at sentencing affirmatively denied any guilt. His is distinguishable from Gauvin.

(5) Saffo also urges she was entitled to the safety valve reduction under §5C1.2 and 18 U.S.C. § 3553(f). The court reviews the district court's determination of eligibility for the safety valve reduction for clear error and reviews de novo interpretation of the guidelines. The government does not dispute that Saffo met the five criteria, but urges she is not eligible for the two level reduction in §2D1.1 because she was sentenced under §2D1.11 and §2S1.1. A sentence under those provisions does not make Saffo eligible for the safety valve reduction under §2D1.1. Saffo does not fall within the cross-reference that appears in §2D1.11. Nor can Saffo claim that §5C1.2 applies under a separate theory of that provision's general limitation on the applicability of statutory minimums. Saffo was sentenced at offense level 32 because the money laundering conviction provided the higher offense level. An offense under § 1956(h) is not among those listed in §5C1.2.

Drugs § 841) - Sufficient Evidence;

Instructions - Lesser Included;

Acceptance of Responsibility

United States v. Day, 00-6057 (September 18, 2000)

This is another case related to Saffo and Leo-Hojjaouri and deals with the same question of whether the statute permits conviction without the requisite mens rea and whether the statute is unconstitutionally vague.

HELD: (1) The court reviews de novo the sufficiency of the evidence. Evidence is sufficient to support a criminal conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt. To sustain a conviction under 21 U.S.C. § 841(d)(2), the government must prove the defendant knowingly and intentionally possessed or distributed a listed chemical, knowingly had a reasonable cause to believe that the listed chemical would be used to manufacture a controlled substance.

(2) Day also raised the claim about a lesser included instruction.

(3) For similar reasons, the court rejected Day's claim of acceptance of responsibility reduction.

Motion to Vacate Sentence (28 U.S.C. § 2255);

Record on Appeal - Material Not Before The Court;

AEDPA - Appeal Based on Substantial Showing of Denial of a Constitutional Right;

Evidentiary Hearing;

Right to Counsel - Privilege Attorney/Client

Prosecutorial Misconduct - Prior to Indictment;

Ineffective Assistance of Counsel

United States v. Kennedy, 98-1421 (September 20, 2000)

Kennedy appeals the denial of his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255, in which he claimed prosecutorial misconduct and ineffective assistance of counsel.

HELD: (1) The court will not consider material outside the record before district court. Rule 10, F.R.A.P. authorizes modification of the record only to the extent it was necessary to truly disclose what occurred in the district court. Kennedy asked the court to follow the Eleventh Circuit's decision of Ross v. Kemp recognizing the inherent equitable authority to supplement the record with matters not before the district court. While agreeing that under some circumstances the court has such inherent equitable power, the present case is not one that would come within a rare exception to Rule 10(e).

(2) Kennedy's right to appeal is governed by the AEDPA. He must make a substantial showing of the denial of a constitutional right in order to appeal. He must demonstrate reasonable juris for debate where a petition should have been resolved in a different manner. Kennedy cannot make the requisite showing.

(3) The court reviews de novo the district court's legal rulings and reviews fact findings for clear error. The district court is required to conduct an evidentiary hearing, unless the motion and files conclusively show the prisoner is entitled to no relief.

(4) Kennedy sought an evidentiary hearing on his claim that his right to counsel was compromised by the government's invasion into his attorney/client privilege by using his attorney as a source of information. Government intrusions into pre-indictment attorney/client relationships do not implicate the Sixth Amendment. Any post-indictment contact between the government and the attorney occurred after the attorney was no longer in Kennedy's employ. A Sixth Amendment violation based on intrusion of attorney/client privilege is limited to government action which interferes with legal representation after the initiation of criminal proceedings.

(5) A defendant's due process rights may be violated by prosecutorial misconduct occurring prior to indictment. This occurs when the misconduct is outrageous enough to shock the conscience of the courts. Governmental misconduct in the form of pre-indictment invasion of a defendant's attorney/client relationship may, under some circumstances, deprive the defendant of due process. The court adopted the Third Circuit's test in Voigt as a reasonable method of evaluating Fifth Amendment claims based on allegations of invasion of the attorney/client privilege. In Voigt the court identified these elements: the government's objective awareness of an ongoing, personal attorney/client relationship between its informant and the defendant, deliberate intrusion into the relationship, and actual and substantial prejudice. The district court in this case should have considered, not only the evidence admitted in the case, but also any information the government allegedly received from the attorney during investigation. Nonetheless, Kennedy has not made the requisite showing of prejudice. Kennedy has not shown how the government's use of the allegedly privileged information infected the trial to such an extent that it resulted in a fundamentally unfair trial.

(6) A claim of ineffective assistance of counsel is a mixed question of law and fact reviewed de novo. The defendant must show deficient performance and prejudice. Kennedy has failed to show how his defense was prejudiced by the government's possession of information obtained from his attorney.

Jury - Use Preemptory Challenge to Cure Judge's Failure to Excuse For Cause, Bias (Implied or Actual);

Instructions - Sua Sponte, And or Or, Jury Confusion, Specific Unanimity Instruction;

Admission of Evidence - Rule 412 (Rape Shield), Confrontation, Balancing

United States v. Powell, 99-1145 (September 21, 2000)

(Charles Szekely, FPD, Denver, Colorado)

Powell was convicted of kidnapping for sexual gratification, contact and exploitation and assault in violation of 18 U.S.C. § 1201. He was sentenced as a career offender to life imprisonment.

During voir dire the defendant moved to exclude two jurors for cause. The trial judge denied the motion. Defendant used his final preemptory challenge to excuse one juror and had no other remaining preemptory challenges to excuse the other juror.

On the second day of deliberations the jury asked the judge the following question regarding two instructions. One instruction read "seized, confined, inveigle, decoy, kidnap, abduct, and carry away, while another instruction said or carry away." The jury asked, "Do we have to have agreement on all the definitions of kidnapped." The judge declined to answer the question except to refer the jury to the instructions as a whole and encouraged the jury to write a more specific question. The judge received a supplemental question asking whether all the conditions had to be met or whether any one of the conditions standing alone would suffice. The judge identified a conflict between the words of the indictment and the statute. The statute uses the word or and the indictment uses and. The court told the jury that instruction 24 defined the government's burden as to the three essential elements. The next morning, the judge informed the parties he had decided to supplement previous instructions to tell the jury that, for purposes of the government's proof, "and" means the same as "or." Defense counsel objected and also urged that an additional instruction would be necessary to the effect that inveigling and decoying was only the first element, and the jury still had to find a holding of the person against her will that had to be proved beyond a reasonable doubt.

HELD: (1) In the Supreme Court's recent opinion in Martinez-Salazar, the Court held that if a defendant elects to cure a judge's error in failing to excuse the biased juror by exercising a preemptory challenge and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule based or constitutional right. The defendant has no claim with respect to the juror who did not sit because of his use of a preemptory challenge.

(2) As to the juror who remained, because defendant had no other preemptories to use, the question is whether she was biased. The trial court's findings regarding actual bias of a prospective juror are reviewed for clear error. Findings as to implied bias are reviewed de novo. Actual bias can be shown by the express admission of the juror, or be found by the court based upon the answers in voir dire. A finding of actual bias is based upon determinations of demeanor and credibility, peculiarly within a trial judge's province a finding of implied bias is a legal determination, depending on an objective evaluation of the juror's experiences and their relation to the case being tried. Unlike the inquiry for actual bias, in which the court examines the juror's answers for evidence that she was in fact partial, the issue for implied bias is whether an average person in the position of the juror would be prejudiced. A finding of implied bias is appropriate where the juror, although she believes she can be impartial, is so closely connected to the circumstances at issue in the trial that bias is presumed. In this case, while the issue of actual bias is troubling, the judge's rejection of the claim is not reversible. As to implied bias the showing in the record is insufficient to reverse the judge's ruling.

(3) The circuit found no fault in the substance of the trial judge's sua sponte instructions to the jury. The court reviews the record as a whole to determine whether the instructions state the governing law and provide the jury with an ample understanding of the issues and standards. The Supreme Court has instructed that, when a jury makes explicit its difficulties, a trial judge has to clear them away with concrete accuracy. The trial judge's supplemental instruction adequately satisfied this admonition. The instructions adequately covered the government's burden of proof, including lack of the victim's consent.

(4) Since the defendant did not request a specific unanimity instruction, review is for plain error. The trial judge did not commit reversible error by failing to instruct the jury that they must all concur on the means by which the defendant satisfied the first element. There is disagreement among the circuits on this point. The recent Supreme Court decision, in Richardson v. United States, held that a specific unanimity instruction was necessary in a CCE conviction. Richardson does not require reversal. Richardson drew on a distinction between the elements of an offense and the means by which the government may satisfy an element.

(5) Rule 412 establishes the federal rape shield whereby admission of evidence concerning the victim's past, sexual behavior is generally prohibited. There are exceptions. Before trial, the defendant notified the trial court of his intention to introduce evidence of the victim's past sexual behavior on the grounds that its exclusion would violate his constitutional rights, and proffered two witnesses. Initially the trial judge was inclined to admit the testimony, but decided he would not make a decision before he heard the government's case, and warned the prosecution that the evidence would be more likely to come in if the government had painted the victim as someone who is very chaste. Upon hearing the victim's testimony, the trial judge decided to exclude the proffered evidence. The trial judge rested his ruling both on Rule 412 and 403 balancing. The court reviews the exclusion of the proffered evidence for abuse of discretion. Evidence concerning prior sexual intercourse may be required to be admitted by confrontation clause rights where relevant and probative on a central issue of sexual offense charges. The court was correct under Rule 412. Exclusion of the testimony did not violate the defendant's rights under the Fifth and Sixth Amendments.

Habeas Corpus (28 U.S.C. § 2254);

Death Penalty;

AEDPA - Standard For Relief;

Ineffective Assistance of Counsel - Conflict of Interest, Deficient Performance and Prejudice, Investigation, Failure to Object, Closing Argument;

Right to be Present;

Jury - Voir Dire, Views on Capital Punishment;

Instructions - No Prejudice From Error, Harmless Error, Kidnapping;

Double Counting;

Aggravating Factors - Additional One, Notice, Sufficient Evidence;

Exhaust State Remedies - Procedural Default;

Double Jeopardy - States Kidnapping and Federal Hobbs Act;

Venue - Actual or Presumed Prejudice

Hale v. Gibson, 99-6083 (September 25, 2000)

(Gloyd McCoy, Oklahoma City, Oklahoma)

Hale was convicted of first degree murder and kidnapping for extortion in Oklahoma. The jury recommended the death penalty for the crime of murder and life imprisonment for the kidnapping crime. After exhausting state remedies, Hale came to federal court on a petition for writ of habeas corpus. The district denied the writ. Hale appealed and the circuit affirmed.

(1) The AEDPA applies including its standard for relief. The court presumes fact findings of the state court are correct. Hale must show the state court adjudication resulted in a decision contrary to clearly established federal law as determined by the Supreme Court, or involved an unreasonable application of clearly established federal law. See Williams v. Taylor (S.Ct.)

(2) The claim of ineffective assistance of counsel, is predicated on a claim of conflict of interest. Hale also argued his due process rights were violated because he was not present while his attorney discussed the application to withdraw with the trial judge. The state did not raise procedural bar as to the due process claim. The court applied pre-AEDPA standards to this portion of the claim. The question of whether a defendant has a constitutional right to be present at this stage of the trial is a legal question reviewed de novo. In the Oles (10th Cir.) decision, the circuit had held that absence from a preliminary hearing in which the court determined whether

court-appointed counsel would withdraw in favor of retained counsel, did not violate the defendant's due process rights. Hale's absence from the conference did not affect his ability to defend against the charges.

(2) The Sixth Amendment guarantees effective assistance of counsel and this encompasses representation free from conflicts. Counsel had informed the court that he disliked and distrusted Hale because he suspected that Hale may have burglarized his law offices a year earlier. However, the interests of counsel and defendant must diverge in the current litigation. While there is no conflict of interest, a complete breakdown in communication may give rise to a presumption of ineffectiveness, but there is no such evidence here.

(3) Claims of ineffective assistance of counsel are mixed questions of law and fact. The defendant must show deficient performance and prejudice. Hale's counsel did not give an opening statement and presented no mitigating evidence. The failure to present available mitigating evidence is not per se ineffective assistance of counsel. An attorney has a duty to conduct a reasonable investigation for possible mitigating evidence. Given the lack of investigation, the attorney's decision to not put forth any mitigation cannot be justified as strategic. As to the prejudice prong, the court keeps in mind the strength of the government's case and aggravating factors, as well as mitigation that might have been presented. The circuit concluded that the later identified testimony from family and friends would not have created a reasonable probability that the jury would have sentenced Hale to life.

(4) An attorney's actions during voir dire are matters of trial strategy. In a capital trial, due process requires voir dire examination of a juror's views on the death penalty. Such examination did take place.

(5) To determine whether a juror must be excluded for cause because of his or her view on capital punishment, the question is whether the juror's views would prevent or substantially impair the performance of his duties in accordance with his instructions and oath. The state trial judge's determination is presumed correct. A review of responses of four jurors indicates the trial court did not improperly excuse them.

(6) In order to show counsel was ineffective in failing to object to the presence of certain persons on the jury, counsel's representation must fall below an objective standard of reasonableness.

(7) As to ineffectiveness in failing to object to admission of other crimes evidence, Hale has not shown that the evidence would have been excluded. There is no conclusive evidence that counsel did not receive notice as required by Oklahoma law.

(8) As to closing remarks, Hale failed to overcome the presumption that the statements might be considered trial strategy. Similarly, as to the guilt phase closing statement, counsel made a reasonable strategic decision to concede some involvement by Hale.

(9) The instruction on kidnapping incorrectly stated that, under Oklahoma law, kidnapping was a death eligible offense. However, the error was not due to any willful misconduct by the attorney or the trial court. There was no prejudice because the jury did not assess the death penalty on the kidnapping for extortion. The question is whether the instruction so infected the entire trial that the resulting conviction violates due process. Prior to the AEDPA, federal courts applied the Brecht v. Abrahamson harmless error analysis, but now, the AEDPA provides the standard for habeas relief. Chapman v. California sets forth the clearly established standard that state courts apply for evaluating instances of constitutional error. The OCCA used the wrong constitutional standard. The state should have applied Chapman, and therefore the circuit apples the standard of review in Brecht.

(10) There is no evidence the jury imposed the death sentence on the murder conviction because of the erroneous kidnapping instruction. Hale argues that the jury double counted the heinous, atrocious and cruel aggravating factor, both for the kidnapping charge and the murder charge. But double counting occurs when one aggravating circumstance for a crime found by the jury necessarily subsumes another aggravator found by the jury for the same crime. Even if the failure to object to this instruction constituted deficient performance, Hale has failed to show prejudice.

(11) The state filed an amended bill of particulars on the first day of trial, adding the "avoiding arrest" aggravating circumstance to the three already alleged as to murder for remuneration, HAC aggravator and continuing threat. Due process requires a defendant to receive adequate notice that he could receive the death penalty. Hale already knew he was facing a death penalty based on three aggravators. The additional aggravator did not require any new witnesses. The trial court would not have been required to strike the additional aggravator even if counsel would have objected.

(12) Hale argues his state prosecutions were barred by Oklahoma law after his conviction of Hobbs Act extortion. Hale did not raise this as a federal double jeopardy claim on direct appeal but did so in post-conviction, only as to the kidnapping conviction. The issue as it concerns the murder charge has not been exhausted. Oklahoma bars collateral review of claims that could have been raised on direct appeal but were not. The federal courts cannot consider issues in habeas that have been defaulted. Oklahoma's procedural bar is independent and adequate. The state did not raise procedural bar as to the federal double jeopardy claim in connection with the kidnapping conviction. Because this was not reviewed by the state court, the court applies the pre-AEDPA standard. Oklahoma would not find that Hale's claim falls within the scope of the statute. Only if evidence necessary to prove the federal charges would not be sufficient to prove the state charges and vice versa would the Oklahoma statute be violated. Under each statute, the state or federal government must prove an element not necessary to any other charge. Therefore Oklahoma did not violate its law in prosecuting Hale for kidnapping following the Hobbs Act prosecution. Since there was no violation of Oklahoma law, there is no denial of a liberty interest predicated upon that law.

(13) Hale argues that the FBI suppressed evidence under Brady. Oklahoma's bar on raising claims on post-conviction that could have been raised on direct appeal is an independent and adequate state bar with regard to Brady claims. Hale has failed to show cause and prejudice or a fundamental miscarriage of justice.

(14) The court reviews the trial court's decision denying a transfer of venue for abuse of discretion. To show a due process violation based on the failure to change venue, the defendant must demonstrate either that the trial resulted in actual prejudice or that it gave rise to a presumption of prejudice because it involves such a probability that prejudice would result. The defendant bears the burden of establishing that prejudice should be presumed. The court reviews actual prejudice by examining the totality of the circumstances. Due process requires that the accused receive a fair trial by an impartial jury free from outside influences. This case is different from Irwin v. Dowd in which the Supreme Court found actual prejudice.

(15) On a constitutional claim that there was insufficient evidence to support an aggravator, the court determines whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt. To support a finding of the "avoid

arrest or prosecution" aggravator, the focus is on the defendant's intent. There was ample evidence in this case. The HAC aggravator is found when the murder was proceeded by torture or serious physical abuse. The evidence was consistent with conscious physical suffering.

Criminal History - Criminal Justice Center

United States v. Lyles, 99-3289, 3290, 3294 (September 29, 2000)

The defendant challenges the assignment of one criminal history point for a prior conviction and two additional points for committing the instant offense while on probation. The Georgia statute involved in this case is indistinguishable from the Oklahoma deferred sentence statute involved in the circuit's Vela case. The state procedure was a criminal justice sentence under §4A1.1(d) and, afortiori, is a criminal justice sentence under subsection (c). Even where convictions are set aside for reasons unrelated to innocence or errors of law, such convictions are to be counted.