May 19, 2019

Archives for July 20, 2015

Tenth Circuit to Implement eVoucher Effective July 20, 2015

The Tenth Circuit announced that effective July 20, 2015, all Tenth Circuit Appellate Criminal Justice Act vouchers must be submitted electronically. The eVoucher program is a nationally supported web-based program for the preparation, submission, monitoring, and approval of Criminal Justice Act vouchers. Practitioners can access the Tenth Circuit’s eVoucher database here. Only Internet Explorer may be used to access the eVoucher database; Chrome and Firefox are not allowed.

For information and training videos about the eVoucher database, click here. For the Tenth Circuit’s Criminal Justice Act policies and procedures, click here.

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: Unpublished Opinions, 7/17/2015

On Friday, July 17, 2015, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Brosh v. Duke

Montgomery-Brooks v. Commissioner of Social Security

Yellowbear v. Newell

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.