November 18, 2017

Tenth Circuit: Jurisdiction Over Crimes Committed in Indian Country is Properly Under the Federal Government

The Tenth Circuit of Appeals issued its opinion in Murphy v. Royal on Tuesday, August 8, 2017.

Petitioner-Appellant Murphy challenged the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contended he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. The Tenth Circuit Court of Appeals agreed and remanded to the district court to issue a writ of habeas corpus vacating his conviction and sentence.

The Tenth Circuit addressed four issues in determining whether the state court had jurisdiction: (1) federal habeas corpus review; (2) Indian county jurisdiction generally; (3) Indian reservations; and (4) how a reservation can be disestablished or diminished.

The court found that Murphy’s crime occurred on the Indian Reservation, and therefore, the Oklahoma court lacked jurisdiction. The court reviewed the Antiterrorism and Effective Death Penalty Act (AEDPA). Section 2254(d) provides three ways to overcome AEDPA deference. The court focused on §2254(d)(1), which states that a state prisoner can qualify for habeas relief by showing a state court decision was “contrary to” federal law that was clearly established by the Supreme Court.

When a state court adjudicates a prisoner’s federal claim on the merits, review under § 2254(d)(1)’s contrary to clause proceeds in three steps: (1) whether there is clearly established federal law that applies to the claim; (2) whether the state court’s decision was contrary to that law; and (3) if the state court rendered a decision that was contrary to clearly established Supreme Court precedent by applying the wrong legal test, applying the correct law. The Circuit assumed that AEDPA supplied the standard of review, therefore the substantive law governing Indian country jurisdiction applies to these claims.

The Major Crimes Act is the jurisdictional statute at the heart of this case and applies to enumerated crimes committed by Indians in Indian country. The jurisdiction is exclusively federal, meaning the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.

Congress has provided that “Indian Country” includes all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. Therefore, all lands within the boundaries of a reservation have Indian country status.

Only Congress can disestablish or diminish a reservation. As Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights, Congress also has the power to eliminate or reduce a reservation against a tribe’s wishes and without consent. Having recognized this power, the Supreme Court has developed a framework to determine whether Congress has exercised its power with respect to a given reservation.

First, there is a presumption against disestablishment and diminishment, and courts do not lightly infer that Congress has exercised this power. The Supreme Court has required that the congressional determination to terminate be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.

Next is Congress’s pursuit of a policy called allotment and its relationship to reservation borders. Congress has historically adopted the view that the Indians tribes should abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land. This policy involved Congress dividing, or “allotting,” communal Indian lands into individualized parcels for private ownership by tribal members. Allotment on its own, however, does not disestablish or diminish a reservation, but may alter the boundaries of some reservations.

To distinguish congressional acts that changed a reservation’s borders from those that simply offered non-Indians the opportunity to purchase land within established reservation boundaries, the Supreme Court has developed a three-part framework:

  1. Courts must examine the text of the statute purportedly disestablishing or diminishing the reservation. No particular form of words, however, is necessary to diminish a reservation.
  2. Courts must consider events surrounding the passage of the statute. Courts have found that Congress altered the borders if evidence at step two unequivocally reveals a widely-held understanding that the affected reservation would shrink as a result of the proposed legislation.
  3. Courts must consider events that occurred after the passage of the statute. Evidence to be considered can include Congress’s own treatment of the affected areas, as well as the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands.

The Tenth Circuit applied the three-part framework described above and concluded that Congress did not disestablish the Reservation at issue in this case. The court found that the most important evidence, the statutory text, failed to reveal disestablishment at step one. Instead, the relevant statutes contain language affirmatively recognizing the Reservation’s borders. The evidence of contemporaneous understanding and later history, which was considered at steps two and three, is mixed and falls far short of unequivocally revealing a congressional intent to disestablish. Because the application of the framework shows Congress has not disestablished the Reservation, the crime in this case occurred within the Reservation’s boundaries. The State of Oklahoma accordingly lacked jurisdiction to prosecute Murphy.

After applying the three-part framework, the court concluded that Congress has not disestablished the Indian Reservation at issue in this case. The crime in this case occurred in Indian country, Murphy is an Indian, and the federal court has exclusive jurisdiction, not Oklahoma. Murphy’s state conviction and death sentence are thus invalid. The decision whether to prosecute Murphy in federal court rests with the United States and decisions about the borders of the Indian Reservation remain with Congress.

The Tenth Circuit Court of Appeals REVERSED the district court’s judgement and REMANDED with instructions to grant Murphy’s application for writ of habeas corpus.

Tenth Circuit: Supreme Court Must Explicitly Hold Case to be Retroactive for Retroactivity to Apply

The Tenth Circuit Court of Appeals issued its opinion in In re Jones on Friday, February 10, 2017.

The Tenth Circuit had to determine if a secondary habeas petition was permissible where the first petition failed. Julius Darius Jones petitioned the court, seeking authorization to file a second capital habeas petition under 28 U.S.C. § 2254 to assert a claim for relief under the Supreme Court ruling in the case of Hurst v. Florida. The court evaluated Jones’ petition under the gatekeeping requirements of 28 U.S.C. § 2244(b) and rejected his petition.

Jones was convicted in 2002 of felony murder and sentenced to death. After Jones’ subsequent appeals were rejected, he filed his first habeas petition in 2007 on the grounds of ineffective assistance of trial and appellate counsel, which was denied by the court in 2013, and which denial was affirmed in 2015. In the present matter, Jones wishes to assert that his sentence violates his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because the jury was not instructed that for the death sentence to be appropriate, the jury must find beyond a reasonable doubt that the aggravating circumstances of his crime outweighed any mitigating factors.

The court evaluated if Jones was entitled to a secondary habeas petition under § 2244(b)(2)(A), which states that the court may only authorize successive claims when the claim relies on a new constitutional rule of law that was made retroactive to cases on collateral review by the Supreme Court, which was not previously available to the claimant.

In rejecting Jones’ petition, the court determined that the case upon which Jones was relying, Hurst v. Florida, (where the court ruled the decision underlying the sentence of death must be found beyond a reasonable doubt) did not warrant retroactivity. The court stated that for a procedural rule of law to be retroactive, the Supreme Court must have explicitly held it to be. Because the Supreme Court has not held the Hurst ruling to be retroactive, the court determined Jones had not met the gatekeeping requirements under § 2244(b).

The Tenth Circuit denied the Motion for Authorization.

Colorado Court of Appeals: District Court Lacked Authority to Rule on People’s Motion

The Colorado Court of Appeals issued its opinion in People v. Wood on Thursday, September 22, 2016.

Felony Murder—Second Degree Murder—Habeas Corpus Petition—State District Court—Federal Court—Jurisdiction.

In 1986, while attempting to rob a pizza delivery store, Wood shot and killed an assistant store manager. Wood was convicted of felony murder, second degree murder, aggravated robbery, and menacing. For the past 10 years, Wood has sought to remove his felony murder conviction. The Tenth Circuit conditionally granted Wood’s habeas corpus petition, noting that his felony murder conviction would be vacated unless a state court acted within a reasonable time to vacate either his felony murder conviction or his second degree murder conviction. Thereafter, the state district court granted the People’s request to vacate the second degree murder conviction, rather than the felony murder conviction.

On appeal, Wood contended that the People did not have authority to request that the state district court vacate his second degree murder conviction, nor did the court have the jurisdiction or authority to do so. The People had the authority to file their request to notify the state district court of the federal district court’s conditional grant of habeas corpus relief and request that the state court vacate the conviction. Though the district court had subject matter jurisdiction, it did not have the authority to vacate Wood’s second degree murder conviction. The conditional grants of habeas corpus relief by the Tenth Circuit and the federal district court did not require the state district court to act. If it did nothing, Wood’s mittimus would be corrected by the federal district court removing his felony murder conviction and the double jeopardy violations would be remedied. Accordingly, the state district court’s order was vacated, and the case was remanded with instructions for the state district court to vacate Wood’s felony murder conviction and correct the mittimus accordingly, leaving in place the second degree murder, aggravated robbery, and menacing convictions.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Counsel’s Trial Strategy Sound and Performance Not Deficient so No Prejudice to Defendant

The Tenth Circuit Court of Appeals issued its opinion in Hanson v. Sherrod on Thursday, August 13, 2015.

John Hanson and Victor Miller went on a crime spree in Tulsa, Oklahoma in August and September 1999. Hanson and Miller carjacked Mary Bowles’ car with her inside. They drove to an isolated area near a dirt pit, where they intended to drop off Bowles, but encountered the owner of the pit, Thurman, who Miller shot and killed. The two then drove a short distance away and Miller told Hanson, “You know what you need to do.” Hanson then shot and killed Bowles; her badly decomposed body was found several weeks later. The two drove to a motel where they wiped down the inside of Bowles’ car and abandoned it. In the next several days, they robbed a video store and a credit union. After the credit union robbery, Miller’s wife (who had been the getaway driver) called Crime Stoppers and told police about the credit union robbery and Bowles’ abandoned car. She also told police where the pair were staying. Police found Bowles’ car and lifted fingerprints from both Miller and Hanson from the interior of the car. They surrounded the motel where Miller and Hanson were staying. Miller surrendered right away, but Hanson refused to leave the room. Eventually, police deployed tear gas and forced Hanson out of the room. They found two weapons with live ammunition in the room, which were the same type of weapons used in the shootings and robberies. Miller and Hanson were charged jointly with first-degree murder of Thurman and first-degree murder of Bowles. Alternatively, they were charged with felony murder for the two killings. At Miller’s request, their trials were severed.

Attorneys Jack Gordon and Eric Stall represented Hanson. Crucial evidence came from Rashad Barnes, a former coworker of Hanson’s who had been letting Hanson live in his car. Barnes testified that Hanson showed up at Barnes’ backyard acting nervous and jittery and told him several details of the killings and robberies. Hanson was convicted of first-degree murder of Bowles (Count 1) and felony murder of Thurman (Count 2). At sentencing, the jury found three aggravating circumstances: (1) Hanson’s prior felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he posed a continuing threat to society. He was sentenced to death for Count 1 and life imprisonment for Count 2. He appealed. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions but remanded for resentencing due to errors at the penalty phase. Days before the resentencing hearing began, Hanson learned that a fellow inmate of Miller’s, Ahmod Henry, would testify that Miller confessed to Bowles’ murder. Hanson filed an application for post-conviction relief based on that testimony, which he characterized as new exculpatory evidence. The state district court granted his motion for a new trial but the OCCA reversed, concluding the district court lacked jurisdiction.

Hanson’s resentencing hearing was held in January 2006, and he was again represented by Gordon. By the time the resentencing trial was held, Barnes had been killed in an unrelated incident. Barnes’ testimony from the first trial was read into the record over Hanson’s objections. In addition to testimony from Hanson’s family, a psychologist testified that she considered Hanson a low risk to society. At the end of the resentencing hearing, the jury recommended a death sentence based on three aggravating circumstances: (1) Hanson’s earlier violent felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he had committed murder to avoid lawful arrest or prosecution. Hanson again appealed, and the OCCA invalidated the second aggravating circumstance. After reweighing the evidence, the OCCA affirmed the death sentence. The U.S. Supreme Court denied certiorari.

In 2008, Hanson filed an application for post-conviction relief, which the OCCA denied. He filed a second application in 2010, which was also denied. In December 2010, he filed a federal habeas petition in the U.S. District Court for the Northern District of Oklahoma, citing nine points of error. The district court denied his habeas petition but granted a COA on six of his claims. Hanson appealed to the Tenth Circuit, which granted him a COA for the remaining three points of error in addition to the six accepted by the district court.

Hanson asserted several instances of ineffective assistance of trial and appellate counsel. He argued his trial counsel was ineffective for (1) failing to call Henry as a witness, (2) failing to raise additional grounds for the admission of Barnes’ prior trial testimony, (3) failing to investigate and introduce mitigating evidence at sentencing, (4) failing to object to prosecutorial misconduct. He argued his appellate counsel was ineffective for failing to challenge his trial counsel’s ineffectiveness and failing to put forth evidence of mental illness and brain damage. Finally, he argued both trial and appellate counsel were ineffective for failing to argue that the aggravating circumstance of avoiding arrest failed to specify which crime Hanson sought to avoid prosecution of by murdering Bowles. The Tenth Circuit analyzed each claim in turn.

The Tenth Circuit first evaluated Henry’s possible testimony. At trial, Gordon chose not to examine Henry directly; rather, he introduced the evidence through the detective to whom Henry made the statement. Gordon’s strategy allowed the confession to be presented to the jury without the opportunity for the prosecution to cross-examine Henry, who had serious credibility issues. The Tenth Circuit found no ineffective assistance, noting instead that Gordon’s decision not to call Henry was sound trial strategy. Because Gordon’s performance was not deficient, there was no prejudice.

Next, the Tenth Circuit turned to Hanson’s claim that Gordon’s performance was deficient in regards to the introduction of Barnes’ prior testimony. Gordon argued vigorously that Henry’s statement should prevent the admission of Barnes’ testimony, but he did not argue separately that Miller’s trial testimony was another grounds for objection. Gordon admitted that he never read the transcript of Miller’s trial. The OCCA concluded Gordon’s failure to admit evidence from Miller’s trial appeared strategically sound, since there were good reasons to shield the jury from Miller’s testimony, including that Miller had inculpated Hanson and that Miller’s testimony refuting Barnes was contradicted by objective facts, such as the fingerprints in Bowles’ car and the firearms found at the pair’s arrest. The Tenth Circuit acknowledged that Gordon admitted his failure to read Miller’s transcript. However, it could not find that the error constituted deficiency. The Tenth Circuit noted that even if the performance were deficient Hanson suffered no prejudice, because any potentially useful scraps of evidence were contradicted by the “inconvenient truth” that the two were found committing other crimes with the same firearms used to murder Thurman and Bowles.

Hanson also argued Gordon’s performance was deficient because he failed to call several familial witnesses to rebut the continuing threat aggravator. Gordon called one expert witness and four lay witnesses to rebut the continuing threat aggravator, all of whom testified that Hanson was kind, loving, hard-working, and a good father. Hanson argued that 13 other lay witnesses would have humanized him in the eyes of the jury. The OCCA analyzed the potential testimony and concluded it was duplicative and only of marginal value. The Tenth Circuit agreed, noting it would be troubled if Gordon had not actually interviewed any of the 13 proffered witnesses but the additional evidence would not have impacted the jury’s ultimate decision.

Turning to Hanson’s argument that both trial and appellate counsel were deficient for failing to introduce evidence of his mental illness and brain damage, the Tenth Circuit found no error. Hanson was evaluated by several mental health professionals prior to trial, who performed various tests. He was again evaluated prior to sentencing. On direct appeal of the death sentence, Hanson’s new counsel attempted to retain a neuropsychologist but was advised against it by one of the psychologists who had previously evaluated him. For his federal habeas petition, Hanson’s counsel, who was different from the previous appellate counsel, obtained evaluations from a psychiatrist and neuropsychiatrist. The OCCA found no ineffective assistance in failure to introduce this evidence previously, specifically stating, “We cannot accept as credible Hanson’s assertion that the experienced capital litigation experts and attorneys all missed these obvious indicators of mental illness and cognitive dysfunction in this case at every step.” The OCCA found the issue was reviewed and rejected by both trial and appellate counsel. The Tenth Circuit affirmed, agreeing with the OCCA that it was implausible that the other mental health professionals would have missed this issue.

Hanson argued that Gordon’s performance was deficient for failure to object to prosecutorial misconduct. The Tenth Circuit evaluated each instance and found that no prosecutorial misconduct occurred, so there was no deficiency in Gordon’s failure to object. Finally, the Tenth Circuit rejected Hanson’s claim that the government was required to specify which predicate felony it used as basis for the the avoiding arrest aggravator. The Tenth Circuit noted there was no requirement that the government specify an underlying felony, but even if the requirement existed there was evidence that the prosecution based the aggravator on Thurman’s murder. Regardless, the OCCA struck the third aggravator on review, which was the appropriate remedy. Hanson also argued that the cumulative errors rendered his counsel ineffective, but the Tenth Circuit disagreed.

The Tenth Circuit affirmed the district court and denied Hanson’s motion to expand his COA.

Tenth Circuit: Double Jeopardy Does Not Apply Although Inconsistent Verdicts Raise Collateral Estoppel Issues

The Tenth Circuit Court of Appeals issued its opinion in Owens v. Trammell on Tuesday, July 7, 2015.

Kenyon Owens, Joe Sanders, and Brandi Lindsey were involved in a plan to rob two brothers, Jesus and Javier Carranza. The brothers followed Lindsey home after her shift at a strip club, and Sanders demanded money from the men. They turned and ran, and Sanders shot them. Owens removed Jesus’ wallet and keys as he lay wounded, then Sanders shot Javier again, killing him, and took his wallet. Owens was charged with four counts — first degree felony murder of Javier with the predicate felony as robbery of Javier, shooting with intent to kill of Jesus, robbery of Javier with a dangerous weapon (the predicate felony for the felony murder charge), and robbery of Jesus with a dangerous weapon. The jury, after exchanging notes with the judge evidencing its confusion about the charges, convicted Owens of murder of Javier but acquitted him of the predicate felony robbery charge. He was convicted also on the charge of robbery of Jesus but acquitted on the charge of shooting Javier.

On Owens’ first appeal, the Oklahoma Court of Criminal Appeals (OCCA) addressed two sufficiency arguments: first, that the evidence presented at trial could not sustain the murder conviction or Jesus robbery conviction, and second, that the evidence must have been insufficient to convict him of felony murder because he was acquitted on the predicate felony. As to the first argument, the OCCA did not hesitate to conclude that the evidence was sufficient to support both convictions. The OCCA interpreted the second argument as a claim that the verdict was logically inconsistent, and, citing Supreme Court precedent, found that the logical inconsistency in the verdicts did not impugn the validity of the murder conviction, but relying on the jury’s notes ruled that it was far from clear that the jury chose to render an inconsistent verdict. The OCCA reversed and remanded, finding the cumulative effect of the open ended jury instruction and the judge’s failure to adequately respond to jury questions raised a substantial possibility that the jury may have convicted Owens based on a crime that was not charged, i.e., basing the felony murder on the robbery of Jesus instead of Javier.

On remand, Owens moved to dismiss the murder charge based on a Double Jeopardy violation. The trial court denied the motion, and Owens was again convicted of felony murder. Owens appealed to the OCCA, again contending that his second trial on the murder charge violated the Double Jeopardy Clause and relying on two main arguments. First, Owens argued that because greater and lesser included offenses are the “same offense” for jeopardy purposes, the acquittal on the lesser robbery charge terminated jeopardy not only as to that charge but also to the greater felony murder charge. Second, Owens argued the retrial was barred by collateral estoppel, contending the jury’s acquittal on the Javier robbery charge necessarily determined an issue of ultimate fact. The OCCA rejected both arguments, finding that although jeopardy was terminated for the robbery charge it continued for the felony murder charge, and finding that collateral estoppel could not apply because it was impossible to know what the jury intended in acquitting Owens of the Javier robbery charge while convicting him of felony murder.

Owens then filed a federal habeas petition, reasserting his double jeopardy claims. The district court denied the petition and a COA, but the Tenth Circuit granted the COA, specifically requesting the parties to address whether the prosecution for felony murder in the second trial, despite the acquittal of the underlying felony robbery charge, violate any aspect of the Double Jeopardy Clause. The Tenth Circuit appointed new counsel for Owens.

Owens made three arguments as to why the OCCA’s denial of his claim was an unreasonable application of Supreme Court precedent: (1) the OCCA failed to undertake the proper Powell analysis in determining whether the verdicts from the first trial were inconsistent; (2) the OCCA unreasonably extended the Supreme Court’s collateral estoppel analysis to his case, and (3) the OCCA unreasonably relied on the principle of continuing jeopardy and short-circuited the collateral estoppel analysis. The Tenth Circuit addressed each argument in turn, giving deference to the provisions of AEDPA.

The Tenth Circuit first addressed Owens’ argument that the OCCA erred in determining that the verdicts in the first trial were “truly inconsistent” and thus erred in relying on that inconsistency to reject his collateral estoppel argument. The Tenth Circuit noted that it had appointed Owens new counsel for this appeal, and counsel’s argument was well-reasoned and compelling, but it had not been raised below and was therefore waived. The Tenth Circuit nonetheless rejected Owens’ argument, finding that resolving Owens’ argument would require inquiries into the jury’s deliberations, and the court would not undertake such an inquiry. Because the law was not clearly established regarding how to determine whether a verdict is “truly inconsistent,” the Tenth Circuit deferred to AEDPA’s “generous rules of deference” and rejected the argument. The Tenth Circuit noted that if this were a direct review the outcome might be different for Owens on this claim.

The Tenth Circuit next addressed Owens’ argument that the OCCA erred in its application of Ashe‘s collateral estoppel principles to his case. The Tenth Circuit agreed with the State that the OCCA did not rely on Ashe in its collateral estoppel analysis but rather based its decision entirely on Powell. The Tenth Circuit found that the Powell truly inconsistent test could defeat the preclusive effect of the acquittal, and rejected Owens’ argument.

Finally, the Tenth Circuit considered Owens’ claim that he was not subject to continuing jeopardy on the felony murder charge. The Tenth Circuit again rejected his arguments, finding that Owens misunderstood the ruling of the OCCA.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Defendants Should be Granted Wide Leave to Supplement Habeas Petition

The Tenth Circuit Court of Appeals issued its opinion in Carter v. Bigelow on Tuesday, June 2, 2015.

In 1985, Douglas Stewart Carter was convicted of the murder of Eva Olesen in Provo, Utah. No physical evidence tied Carter to the murder, but his wife tipped off authorities that her husband visited his friend, Epifanio Tovar, the night of the murder, and she suspected her missing .38 handgun may have been used in the murder. When they interviewed Mr. Tovar, he told police that Mr. Carter had left Mr. Tovar’s home in the middle of the night with the intent to steal money and returned in different clothes appearing nervous. Mr. Tovar told police Mr. Carter said he stabbed Mrs. Olesen multiple times, when she did not die he shot her, and he asked Mr. Tovar to dispose of the gun. Mr. Carter was arrested in Nashville, Tennessee, and on the second day of questioning an officer from the Provo Police Department obtained a confession from Mr. Carter. Mr. Carter was charged with first-degree murder, although the only evidence corroborating his confession was the testimony of Mr. Tovar and his wife, Lucia, who spoke only Spanish but testified that she heard Mr. Carter confess to the murder to her husband.

Mr. Carter filed his first state court petition for post-conviction relief in 1995, and the state court denied all his claims. The Utah Supreme Court affirmed. Mr. Carter’s habeas proceedings began in 2002, and in 2005 the federal district court granted Mr. Carter’s request for stay during the pendency of his unexhausted state court claims. In 2008, the district court granted Utah’s motion to lift the stay and reopen the case, and in 2010, the district court granted Utah’s motion to dismiss in part, finding that a number of Mr. Carter’s claims were procedurally barred.

In August 2011, Mr. Carter filed a new motion for a stay to exhaust claims of prosecutorial misconduct based on newly discovered evidence that Epifanio and Lucia Tovar received cash payments and other favorable treatment from the Provo Police Department in advance of testifying. The district court denied his petition. Mr. Carter then moved to amend or supplement his petition, which the district court also denied. The district court subsequently denied his petition for a writ of habeas corpus, and Mr. Carter timely appealed.

The Tenth Circuit noted that authorization to supplement pleadings should be liberally granted, and found that Mr. Carter’s claims of prosecutorial misconduct could have been characterized as an amendment or supplement to his petition, since he sought to supplement before the district court ruled on his motion, his petition contained a claim of improper prosecutorial vouching for Mrs. Tovar, and his initial and amended habeas petition contained claims that the prosecution suppressed evidence of favorable treatment to Mr. and Mrs. Tovar in exchange for their testimony. The district court had relied on a footnote in a Tenth Circuit opinion regarding the victim’s son’s request for mandamus, where that panel of the Tenth Circuit noted that the defendant must follow the procedures in § 2244 for any new claims. The Tenth Circuit found the district court misconstrued the footnote, and did not interpret it to bar supplemental claims. The Tenth Circuit reversed and remanded with directions for the district court to allow supplementation based on BradyNapue, and their progeny. The Tenth Circuit also found that Mr. Carter’s request for supplementation was timely, since the Tovars had been previously unavailable per Utah’s assertions and the prosecution informed Mr. Carter that he had all the information they possessed. The Tenth Circuit found the state’s attempt to bar Mr. Carter’s claims especially disingenuous.

Mr. Carter next contended his guilt-phase counsel was ineffective for failing to obtain the prosecution’s file against Mr. Carter and failing to adequately challenge the admission of Mr. Carter’s confession. The Tenth Circuit found that the failure to obtain the prosecution file was almost certainly error, but the error was harmless because Mr. Carter was unable to show he was prejudiced by the error. The Tenth Circuit supported the Utah Supreme Court’s conclusion that Mr. Carter failed to show prejudice. Next analyzing Mr. Carter’s claim regarding the admission of his confession, the Tenth Circuit again found no error in the Utah Supreme Court’s ruling.

Next, Mr. Carter alleged ineffective assistance of appellate counsel for failing to use evidence in the prosecution’s file to establish his ineffective assistance claim against guilt-phase counsel. The Tenth Circuit again found that Mr. Carter’s argument failed at the prejudice prong of the Strickland analysis. Mr. Carter also argued his resentencing counsel was ineffective for failing to investigate and present mitigating evidence, failing to strike a juror who Mr. Carter claims was racist and supported the death penalty, and failing to challenge the integrity of the proceedings. The Tenth Circuit found that resentencing counsel interviewed Mr. Carter’s family members and presented mitigating evidence. As to the juror, the Circuit noted that although he stated he believed in the “mark of Cain,” or that dark skin represents a punishment for biblical Cain killing Abel, he also stated it would not affect his view of the case at hand, and although he believed the death penalty was warranted for premeditated murder, making the decision to sentence someone to death would haunt him. The Tenth Circuit found no error in allowing the juror on the panel. As to the integrity claim, the jury was specifically instructed that it was not to consider the question of defendant’s guilt or innocence, so this claim failed as well.

The Tenth Circuit also evaluated and rejected Mr. Carter’s claims of violations of the Confrontation Clause due to the admission of transcripts of the Tovars’ testimony at resentencing, and that the admission of his confession violated his right not to be compelled as a witness against himself. As to Mr. Carter’s cumulative error claim, the Tenth Circuit found it premature, and vacated the district court’s denial of habeas relief on this ground until resolution of Mr. Carter’s remaining claims.

The Tenth Circuit reversed the district court’s denial of Mr. Carter’s motion to supplement or amend his habeas petition and remanded for further proceedings on that issue. It vacated the district court’s denial of habeas relief on cumulative error grounds, and affirmed in all other respects.

Tenth Circuit: Counsel Vigorously Defended Client so Potential Substance Abuse Immaterial

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Trammell on Friday, April 6, 2015.

Two masked gunmen robbed a bank in Tulsa, Oklahoma, and during the robbery each gunman fired several shots, killing one person and seriously wounding two others. Substantial evidence linked Jeremy Williams and Alvin Jordan to the robbery and both were charged with first-degree murder (with alternate theories of malice and felony murder), armed bank robbery, and shooting with intent to kill. Williams alone went to trial.

Although there was some question about which gunman fired the shots that killed the bank teller, the state argued it did not matter if Williams was the gunman, because the felony murder charge did not depend on it, and he could still be found guilty of malice murder if he aided and abetted Jordan. The jury received instruction on this issue and ultimately found Williams guilty of both felony and malice murder. After weighing the mitigating and aggravating circumstances, the jury applied the death penalty. Williams appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed the sentence and convictions on direct appeal. Williams filed a petition for federal habeas relief in federal district court, which denied his claims without an evidentiary hearing but granted a certificate of appealability on two claims: (1) ineffective assistance of counsel, mostly during the guilt phase of trial, and (2) ineffective assistance of counsel at sentencing. The Tenth Circuit added two issues: (1) sufficiency of the evidence to support Williams’ malice murder conviction, and (2) cumulative error.

The Tenth Circuit first addressed the sufficiency of the evidence claim. Although no evidence proved Williams caused the death of the teller, Oklahoma law provides that anyone who aids or abets a crime can be charged as a principal. The Tenth Circuit found problems with the OCCA’s statement in a footnote about abandoning prior precedent that would omit a mens rea from aiding and abetting, but found that even if the OCCA purportedly abandoned its previous test for aiding and abetting, it used that test to affirm Williams’ convictions. After evaluating all applicable defenses, the Tenth Circuit found the evidence sufficient to support Williams’ malice murder conviction.

Next, the Tenth Circuit turned to the ineffective assistance of counsel claims. Although Williams had two attorneys, his claims were focused on the actions of the lead counsel during the guilt phase. Williams contends that lead counsel was under the influence of drugs and alcohol throughout the trial and “may have been” constructively absent. Williams raised the substance abuse argument after finding a listserv email authored by his attorney regarding the emotional toll of trying a death penalty case, in which the attorney said he used valium just to get through the day and only laid off the valium and alcohol for trial. The OCCA and district court both rejected the substance abuse arguments because both Williams’ lawyers fought valiantly on his behalf at trial and vigorously asserted professional efforts on his behalf. The Tenth Circuit, applying the Strickland standard, affirmed.

Turning to Williams’ specific claims about counsel’s deficient performance, the Tenth Circuit again evaluated each claim under the Strickland standard. Williams claimed his counsel should have objected to the introduction of evidence regarding a stolen watch with Williams’ DNA on it. The Tenth Circuit found that, considering the amount of other evidence of Williams’ thievery, which he used to explain the shoe print at the bank and the wad of cash at the apartment, there was no error in counsel’s failure to object to the watch evidence.

The Tenth Circuit found that allowing an officer to testify regarding the presumed origin of some scrapes on Williams’ shin was perhaps prejudicial, but any error in counsel’s failure to object to this testimony was outweighed by the sheer volume of evidence against Williams, and the Tenth Circuit could not say that but for the evidence Williams would have had a reasonable probability of acquittal. The Tenth Circuit dismissed most of Williams’ other claims because counsel’s conduct was reasonable.

Turning to Williams’ allegations of prosecutorial misconduct to which his counsel failed to object, the Tenth Circuit found the issue inadequately brief and therefore waived. The Tenth Circuit found no ineffective assistance of counsel that could have precluded acquittal.

As to Williams’ claims of ineffective assistance during the penalty phase, the Tenth Circuit found most of his claims inadequately exhausted. The Tenth Circuit could not consider on habeas appeal the claims Williams failed to raise on direct appeal. As to the partially exhausted claims, the Tenth Circuit found the chances that the OCCA might excuse his noncompliance with the ban on successive appeals “slim to none” and applied an anticipatory procedural bar. Turning to the OCCA’s treatment of Williams’ state court claims, in which it found counsel’s performance a reasonable exercise of trial strategy, the Tenth Circuit agreed. Even assuming deficient performance, the Tenth Circuit found Williams could not establish prejudice.

Finally, the Tenth Circuit evaluated Williams’ claims for cumulative error and found no reason to overturn the OCCA’s or district court’s opinions. The district court’s judgment was affirmed and the Tenth Circuit denied Williams the opportunity to expand his certificate of appealability.

Tenth Circuit: Federal Court Must Defer to State Court Findings of Knowing and Intelligent Miranda Waiver

The Tenth Circuit Court of Appeals issued its opinion in Al-Yousif v. Trani on Friday, March 6, 2015.

Naif Al-Yousif, a native of Saudi Arabia who studied English in the United States for several months, participated with his two roommates to rob and murder a friend who was visiting from Saudi Arabia and dispose of his body in a dumpster. After the killing, Al-Yousif fled to California, but his brother convinced him to return to Colorado. Upon his return, Detective Guigli arrested him and took him to the police station and questioned him with another officer, Detective Martinez, while videotaping the interview. Detective Martinez read a Miranda advisement, and Al-Yousif nodded while the advisement was being read. Martinez asked Al-Yousif if he understood and Al-Yousif said he did. He also signed the advisement form. He spoke to the detectives and made several inculpatory statements, then led them to the dumpster where they had disposed of the body. After that, the detectives returned with Al-Yousif to the police station and again advised him of his rights, at which point he requested an attorney.

Before trial, Al-Yousif moved to suppress the video of the police interrogation, asserting he had not knowingly and intelligently waived his Miranda rights. The trial court heard testimony and reviewed the video, and ultimately ruled to suppress the video despite its impression that Al-Yousif responded appropriately to questions and understood the questions posed to him, finding that the State failed to show a knowing and intelligent waiver. On interlocutory appeal, the Colorado Supreme Court reversed, ruling that Defendant sufficiently understood his rights and the waiver was therefore valid. The video of the interrogation was admitted at trial, and the jury ultimately convicted him. He was sentenced to life imprisonment without parole. On direct appeal, the Colorado Court of Appeals vacated his conviction for theft by receiving, merged the robbery and felony murder convictions, and otherwise affirmed the trial court. The Colorado Supreme Court granted certiorari but then denied it as improvidently granted. The court denied a petition for rehearing. Al-Yousif filed an unsuccessful petition for post-conviction relief and the Colorado Supreme Court denied review.

Al-Yousif then petitioned the U.S. District Court for the District of Colorado for habeas corpus relief. Although the habeas petition was not timely filed, the district court granted equitable tolling and ruled on the merits, finding that the Colorado Supreme Court’s decision was contrary to and an unreasonable application of Miranda. The State of Colorado appealed.

The Tenth Circuit first analyzed the district court’s grant of equitable tolling under the Antiterrorism and Effective Death Penalty Act (AEDPA). Ordinarily, habeas petitions must be filed no later than one year after the state judgment becomes final. In this case, the petition was filed three days late. Defendant asserted his petition was timely because the Colorado Supreme Court denied the motion for rehearing on April 10, 2008, according to a printout he received from the federal district court. However, the Colorado Supreme Court’s opinion was actually issued on April 7, 2008, and received by the federal court on April 10. When the state pointed out Defendant’s error, he asserted that he should be afforded the opportunity to assert equitable tolling. The district court applied equitable tolling without allowing the state to argue in response or make a record.

The Tenth Circuit held that this was error. Quoting prior case law, the Tenth Circuit held that equitable tolling is a rare remedy and should only be applied in unusual circumstances. Plaintiff’s error in this case could have been prevented if his counsel had spoken to defense counsel from the prior state court case, or had requested the opinion from the Colorado Supreme Court instead of relying on the information in the federal district court’s system. The Tenth Circuit reversed the district court’s grant of equitable tolling.

Next, the Tenth Circuit addressed Al-Yousif’s Miranda claim, and found that it owed little deference to the federal district court’s decision. In contrast, the Tenth Circuit found it owed great deference to the Colorado state court decision denying suppression of Al-Yousif’s videotaped interrogation. Under AEDPA, the federal court cannot grant habeas relief to a prisoner with respect to a claim the state court rejected on the merits unless the state court’s decision was contrary to clearly established federal law.

The Tenth Circuit analyzed the Colorado Supreme Court’s denial of suppression of Defendant’s statements, and found it applied a “totality of the circumstances” test and held that the circumstances surrounding the waiver showed that Defendant sufficiently understood his rights. Defendant asked for clarification when he did not understand a question or word during the interrogation, but did not ask for clarification during his Miranda advisement. The court further stated that a defendant need not understand the tactical implication of Miranda rights in order to waive them.

The Tenth Circuit noted that a defendant’s understanding of his Miranda rights is a question of fact entitled to deference under AEDPA. The Tenth Circuit averred it must defer to that finding unless the defendant shows clear and convincing evidence to the contrary, which the instant defendant did not do. The Tenth Circuit reversed the district court’s grant of habeas relief.

Colorado Supreme Court: Good Time Credits Only to be Used to Calculate Inmate’s Parole Eligibility

The Colorado Supreme Court issued its opinion in Ankeney v. Raemisch on Monday, March 16, 2015.

Mandatory Release Date—Applicability of Good Time, Earned Time, and Educational Earned Time.

The Department of Corrections (DOC) appealed directly to the Supreme Court from an order of the district court granting Ankeney habeas corpus relief. Complying with a remand order of the court of appeals from an earlier appeal, the district court interpreted various statutory provisions regarding good time and earned time credit to require Ankeney’s release from prison almost three years before the date calculated by the DOC. Crediting the time during which Ankeney remained unlawfully incarcerated against his subsequent, statutorily mandated period of parole, the district court found him to have completed his parole term and ordered his immediate release from parole supervision.

The Court reversed the district court’s judgment. It held that the lower courts erroneously concluded that for inmates convicted of crimes committed after July 1, 1993, good time credits awardable by CRS § 17-22.5-301 are to be applied against an inmate’s mandatory release date rather than calculated merely to determine his or her parole eligibility. A proper application of the statutory deductions from Ankeney’s sentence to which he is entitled demonstrates that he has not completed service of his required term of parole.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Death Row Inmate Cannot Show Ineffective Assistance for Failure to Call Witness

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Trammell on Friday, December 5, 2014.

On July 28, 1999, Paul Howell was fatally shot in his Suburban in his parents’ driveway in Oklahoma City. Two days later, police found Howell’s Suburban, canvassed the neighborhood where it was found, spoke to various people, and eventually investigated Julius Jones as the suspect in the killing and robbery. Police also investigated Christopher Jordan as the co-conspirator. Police obtained a warrant to search Jones’ parents’ house, where they found the gun used to shoot Howell wrapped in the bandanna worn during the robbery hidden in a hole in the ceiling above Jones’ room. Police found the weapon’s magazine hidden inside the door chime housing.

Jones and Jordan were charged conjointly with conspiracy to commit a felony and with the murder of Howell. Jones was also charged with possession of a firearm by a convicted felon. Jordan pleaded guilty and agreed to testify against Jones as part of his plea agreement. After a jury trial, Jones was convicted on all three charges. He was sentenced to death on the murder charge, 25 years’ imprisonment on the conspiracy charge, and 15 years’ imprisonment on the weapon charge, to run concurrently.

Jones filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA) asserting 19 propositions of error, including an ineffective assistance of counsel claim based on his trial counsel’s failure to call Emmanuel Littlejohn as a witness. Littlejohn was Jordan’s cellmate, to whom Jordan had confided that Jones was not involved in the murder and robbery and that Jordan had committed the crimes. Jones’s trial counsel, David McKenzie, in his affidavit, stated he had personally interviewed Littlejohn and spoken to Littlejohn’s attorneys, and had decided not to call him as a witness due to concerns about his credibility. The OCCA affirmed Jones’s convictions and sentences, and expressly rejected his ineffective assistance claim. Jones filed a petition for rehearing and motion to recall the mandate. The OCCA granted the rehearing petition but ultimately concluded there was no merit to Jones’s issues on rehearing and denied the mandate motion. The U.S. Supreme Court denied certiorari.

Jones filed an original application for post-conviction relief with the OCCA while his direct appeal was still pending. Proposition One alleged various instances of ineffective assistance of counsel, including allegations that another inmate also overheard Jordan claiming responsibility for the robbery and murder and alleging ineffective assistance for his counsel’s failure to discover this witness. The OCCA denied Jones’s petition for post-conviction relief and expressly rejected Jones’s argument about the other inmate. Jones then filed a petition for federal habeas relief, again asserting an ineffective assistance of counsel claim based on his counsel’s failure to explore the other inmate’s corroborating testimony. The district court denied his petition and refused to issue a COA. The Tenth Circuit subsequently issued a COA on the issue of whether trial counsel provided ineffective assistance by failing to investigate Littlejohn’s claim.

The Tenth Circuit evaluated Jones’s ineffective assistance claim based on the standard set forth in the U.S. Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must show that (1) counsel committed serious errors such that the legal representation fell below an objective standard of reasonableness [the performance prong], and (2) there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different [the prejudice prong]. Jones conceded that the OCCA’s resolution of the ineffective assistance claim he raised on direct appeal “was likely reasonable.” Jones instead asserted that McKenzie’s failure to seek corroboration of Littlejohn’s proposed testimony was error.

The Tenth Circuit rejected Jones’s arguments, finding them based on the erroneous premise that the OCCA’s resolution rested on Strickland‘s performance prong. The Tenth Circuit instead discerned that the OCCA examined the proffered testimony and decided it would not alter the outcome of the proceedings, therefore implicating the prejudice prong. This effectively disposed of Jones’s arguments on appeal, and the Tenth Circuit affirmed the district court’s denial of Jones’s habeas petition.

Tenth Circuit: Newly Discovered Evidence of Actual Innocence Tolls Time Period for Filing Habeas Claims

The Tenth Circuit Court of Appeals issued its opinion in Doe v. Jones on Tuesday, August 12, 2014.

John Doe, a federal prisoner, was convicted of first-degree murder in Oklahoma and sentenced to life without parole. He was separately convicted in federal court of bank robbery, which took place in connection with the Oklahoma murder. His direct appeal to the murder conviction was unsuccessful and he did not appeal further or file a habeas petition in federal court. While serving the federal life sentence in Texas, he was convicted of murdering a fellow inmate and sentenced to death.

Following the imposition of the death sentence, Doe contends that new evidence came to light that established his actual innocence for the Oklahoma murder and federal robbery. He filed a petition for post-conviction relief in state court and the instant § 2254 petition in federal court two days before the expiration of the one-year statute of limitations for habeas petitions. He also filed a motion to stay the federal § 2254 petition pending outcome of the state court case. He raised the actual innocence claim both as a new constitutional claim and a “gateway” to introduce time-barred constitutional claims such as ineffective assistance of counsel and suppression of exculpatory evidence. The district court judge, adopting the recommendations of a magistrate, dismissed the § 2254 petition without prejudice. It also denied his motion to alter and amend judgment and his request for a certificate of appealability.

The Tenth Circuit reviewed prisoners’ requirements to exhaust all state remedies in light of the Supreme Court’s ruling in Rhines v. Weber, 544 U.S. 269 (2005). The Tenth Circuit discussed that before Rhines and before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, there was no time limit for filing federal habeas petitions and there was no need for prisoners to raise all claims in state court prior to filing in federal court. However, Rhines and the AEDPA limited these filings and required habeas petitions to be filed within one year of the date the judgment became final. Circuit case law suggested that petitioners nearing the end of the one-year limitations period should file their state court claims and also file § 2254 petitions in the federal district court, asking the district court to stay the proceeding until resolution of the state court claims in order to preserve their federal remedies. Based on a 2010 Tenth Circuit opinion, the magistrate in this case determined that the limitations period would be tolled by the actual innocence claim so a stay was not warranted. During the pendency of this appeal, the Supreme Court decided that a credible showing of actual innocence provides an outright equitable exception to AEDPA’s statute of limitations. Therefore, the petitioner in this case does not have a legitimate concern that his federal claims will be time-barred.

The district court’s dismissal was affirmed.

Tenth Circuit: Habeas Petition Timely Despite Delay Because State Court Eventually Ruled on Merits

The Tenth Circuit Court of Appeals issued its opinion in Fisher v. Raemisch on Tuesday, August 5, 2014.

in January 2001, Michael Fisher was convicted of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery, and in October 2001, he filed a Crim. P. 35(c) application for relief in Colorado state court. Fisher’s counsel set a notice of hearing in 2006 and the hearing was held three years later. Fisher presented evidence at the 2009 hearing and the state court denied his application on the merits. Fisher appealed, and the Colorado Court of Appeals affirmed on the merits in 2012. Fisher filed a petition for certiorari in the Colorado Supreme Court, which was denied. Fisher then filed for federal habeas relief in federal district court. The federal court determined that Fisher’s state court Crim. P. 35(c) petition was no longer pending as of October 2004, despite the state court’s rulings in 2006 and 2009, and denied habeas relief on grounds that the petition was untimely. Fisher appealed to the Tenth Circuit.

The Tenth Circuit first addressed Respondents’ argument that the one-year limitation period for habeas relief began on January 8, 2001, when Fisher’s convictions became final. Because Fisher filed an application for state court relief in October 2001, however, the limitations period was tolled while the application was pending. Fisher asserts that the period remained tolled until October 2012, when the Colorado Supreme Court denied certiorari. Respondents argue that Fisher abandoned his application by not requesting an expeditious determination. The Tenth Circuit disagreed with Respondents, ruling that an application does not stop pending at the time that it could be deemed abandoned. Because the state court eventually ruled on Fisher’s Crim. P. 35(c) application, this implied that the state courts never deemed Fisher’s application abandoned. No court has suggested that an action automatically terminates when its bringer fails to request expeditious ruling. Since the federal interpretation of “pending” indicates final resolution in state court, Fisher’s action did not terminate until the Colorado Supreme Court denied certiorari.

The Tenth Circuit found Fisher’s habeas petition timely and reversed and remanded for hearing on the habeas petition.