April 22, 2019

Tenth Circuit: High AEDPA Burden Precludes Reversal Where Error Not Clearly Shown

The Tenth Circuit Court of Appeals issued its opinion in Hancock v. Trammell on Tuesday, August 18, 2015.

Phillip Hancock’s ex-girlfriend was staying with Bob Jett when Hancock was asked to come pick her up. When he arrived at Jett’s house, the girlfriend was not there but Jett and another man, James Lynch, were. Later, Ms. Shawn Tarp arrived at the house and the four did meth together. An altercation ensued, and Jett, who was armed, tried to force Hancock into a large cage with Lynch’s help. Jett was swinging a metal bar at Hancock, and it may have hit his head. At some point during the scuffle, Hancock got the gun from Jett and shot both Jett and Lynch. Lynch collapsed and Hancock chased Jett out the back door, then shot him again. Tarp was hiding in a back room, and after the shots subsided she emerged, but Hancock did not shoot her. He calmly apologized to her for what she witnessed and asked her to wait a few minutes before leaving, which she did.

Hancock was charged with two counts of first-degree murder. He admitted that he shot the men, but asserted he did so in self-defense. The jury rejected his defense and found him guilty on both counts of murder. He was sentenced to death. He was unsuccessful in his direct appeal to the Oklahoma Court of Criminal Appeals (OCCA) and in post-conviction proceedings. He applied for a writ of habeas corpus from the federal district court, which denied his request, and he appealed to the Tenth Circuit. Four issues were certified for review: (1) whether the state court denied him due process by allowing the prosecution to elicit testimony about his prior conviction for manslaughter in which he asserted self-defense, (2) whether the state court misled the jury by giving unwarranted instructions on self-defense and allowing the prosecutor to make improper comments in closing, (3) whether Hancock’s trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of manslaughter, and (4) cumulative error.

The Tenth Circuit first addressed the issue of the 1982 manslaughter conviction. Hancock urged a right to habeas relief because the OCCA did not adjudicate the merits of his due process claim and it based its decision on an unreasonable factual determination. The Tenth Circuit held that Hancock failed to raise his due process claim in district court and therefore forfeited the argument. The Tenth Circuit noted, however, that even if the OCCA did not specifically mention Hancock’s due process claim, it unquestionably reviewed his claim on the merits. The Tenth Circuit continued that Hancock’s argument was invalid because the OCCA concluded Hancock waived his argument by eliciting evidence of the manslaughter conviction on direct examination.

Hancock also argued the OCCA mistakenly thought the state court had allowed the manslaughter evidence as impeachment evidence under Okla. Stat. tit. 12, § 2609(B), which governs impeachment with convictions over 10 years old. The Tenth Circuit noted “If the OCCA had misunderstood the basis for the district court’s ruling, as Mr. Hancock argues, the mistake would likely have constituted an unreasonable determination of fact and allowed us to consider the merits of the underlying constitutional claim,” but determined that Hancock had not met the heavy AEDPA burden of showing a factual misunderstanding. Hancock argued the state did not allow the evidence under § 2609(B); rather, he argued it either admitted the evidence as “other act” evidence under Okla. Stat. tit. 12, § 2404(B), or as a form of relevant evidence. The Tenth Circuit noted that although the state court did not rely on § 2609(B), the OCCA clearly did, but it did not say whether it thought the state court had relied on § 2609(B) also. The Tenth Circuit remarked that it could reach the merits of the constitutional claim only if the OCCA rested its decision on a mistaken factual view of the record. The majority wrestled with the OCCA opinion and decided that although it was not clear on which section the OCCA based its opinion, Hancock failed to meet his high burden to show that the OCCA’s view was mistaken. The dissent, penned by Judge Lucero, strongly disagreed with the majority’s conclusion, finding that the OCCA’s opinion was incorrect and its error substantially influenced Hancock’s due process rights. Judge Lucero would have reversed and remanded on this point.

The Tenth Circuit turned its attention to Hancock’s argument that the state court erred by limiting the self-defense instruction and allowing the prosecutor to make improper closing remarks based on the limited instruction. At trial, the court instructed the jury on self-defense and the “aggressor” exception. Hancock argued there was no evidentiary basis for three parts of the instructions: (1) self-defense is not available for a person who voluntarily enters into combat, (2) a person can regain the right to self-defense if he withdraws from the confrontation, and (3) the use of words alone cannot turn someone into an aggressor. The Tenth Circuit found no error. The Tenth Circuit reviewed Hancock’s claim that the evidence was insufficient to justify these portions of the instructions and disagreed, finding the evidence showed that there was mutual combat between Jett and Hancock, at some point Jett turned away from Hancock and he chased after Jett to shoot him again, and Jett was provoking Hancock with his words. The Tenth Circuit similarly rejected Hancock’s argument that the prosecutor’s closing remarks about Jett running away were improper, finding Hancock forfeited this argument by failing to raise it in his habeas petition.

Next, the Tenth Circuit turned to Hancock’s argument that his trial counsel was ineffective because he failed to request an instruction on criminal attempt manslaughter. Because the trial counsel had requested and received a heat of passion manslaughter instruction, the Tenth Circuit found it was a reasonable trial strategy for counsel to have chosen the heat of passion instruction over the criminal attempt instruction, which was less applicable to the facts of Hancock’s case. The Tenth Circuit disagreed with Hancock that his counsel’s decision constituted deficiency.

Finally, the Tenth Circuit found no cumulative error. The Tenth Circuit found no constitutional violations and lack of prejudice on Hancock’s ineffective assistance claims. Hancock also requested to expand his certificate of appealability, but the Tenth Circuit denied his motion, finding that no reasonable jurist could find the district court’s conclusions wrong.

The Tenth Circuit affirmed Hancock’s convictions and sentence. Judge Lucero wrote a thoughtful and provocative dissent.

Tenth Circuit: District Court Lacked Authority to Consider Defendant’s Fraud on the Court Motion

The Tenth Circuit Court of Appeals issued its opinion in United States v. Williams on Tuesday, June 23, 2015.

Jeffrey Dan Williams was convicted on federal drug and firearm charges in the late 1990s. He unsuccessfully challenged his convictions multiple times in state and federal court. In November 2010, he filed his fifth request for postconviction relief, in which he claimed at least five Tulsa police officers who were involved in the investigation in his case were investigated for corruption, including planting evidence and perjury in criminal cases. The Tenth Circuit denied Williams’ motion to file a second or subsequent habeas petition due to lack of supporting evidence but allowed him to refile a motion for authorization containing complete descriptions of all relevant facts, with supporting evidence. Williams attempted to comply but the Tenth Circuit found the evidence insufficient and denied the motion.

Williams next filed a pro se “Motion to Withdraw and Nullify Guilty Plea” in district court in January 2012, arguing that the officers involved in the corruption investigation had “engaged in the same type of illegal conduct” in Williams’ case. Williams attached evidence undermining the testimony of the DEA agent used to support the quantity findings at Williams’ sentencing. The district court construed the motion as an F.R.C.P. 60(d)(3) request, appointed counsel for Williams, ordered the parties to conduct discovery, and held an evidentiary hearing. At the hearing the district court heard testimony from multiple witnesses that supported Williams’ fraud claims. The district court issued an opinion and order vacating Williams’ judgment and sentence and dismissing the third superseding indictment. The court found that the Tulsa Police officers committed a fraud on the court that required Williams’ convictions to be set aside. Alternatively, the district court granted Williams’ motion to withdraw his guilty plea based on the court’s common law authority to prevent a miscarriage of justice. The district court distinguished an intervening Tenth Circuit decision, United States v. Baker, which held that motions alleging fraud on the court should be treated as second or successive petitions, noting that the court sua sponte invoked its authority to construe Williams’ motion as a fraud on the court. The government appealed.

The Tenth Circuit agreed with the government that AEDPA divested the district court of authority to rule on the motion, characterizing it as a second or successive petition for habeas relief. The Tenth Circuit found the district court did not properly invoke its inherent authority to correct fraud on the court and therefore lacked subject matter jurisdiction. Explaining that for AEDPA purposes it looks at the substance of a motion and not the title, the Tenth Circuit found that Williams’ motion challenged his underlying conviction, falling squarely in the definition of a second or successive habeas petition for AEDPA purposes. Although an exception existed for newly discovered factual bases for relief, that exception did not apply in Williams’ case because his claims of corruption existed from its inception. The Tenth Circuit clarified that newly discovered proof is not the same as a newly discovered factual basis, so although the evidence supporting Williams’ corruption claims had not yet been uncovered at the time of his first appeal, the basis of the claims existed. Because Williams failed to obtain certification from the Tenth Circuit before filing his motion, he was prohibited from filing a second or successive habeas motion.

The Tenth Circuit next rejected the district court’s characterization that it was acting sua sponte to correct the fraud on the court. The Tenth Circuit explained that in the years following AEDPA’s enactment, the court’s authority to remedy fraud on the court was narrowed, and in Baker, the Tenth Circuit further limited a court’s authority in cases where the defendant has already had fair habeas review. The Tenth Circuit dismissed the district court’s statement that it was acting sua sponte, finding instead that it acted on the successive application for habeas relief because it considered the new claims and evidence contained in Williams’ motion. The Tenth Circuit reversed the district court’s decision to vacate Williams’ convictions based on fraud on the conviction court.

The Tenth Circuit also found the district court was not free to exercise its common law authority to prevent a miscarriage of justice, noting it must be constrained by the limits set by Congress. Because Williams did not first obtain certification from the Tenth Circuit to appeal, the district court lacked jurisdiction to consider the miscarriage of justice claims.

Finally, the Tenth Circuit evaluated Williams’ motion as a request to file a second or successive petition, which it granted in part. The Tenth Circuit evaluated Williams’ new evidence and the testimony of the witnesses supporting his fraud claims, and found that only his firearm conviction would be affected by the new evidence since Williams did not contest every search or all evidence gained by the police as obtained by corruption. In fact, the Tenth Circuit found that the evidence tended to support Williams’ possession charges.

The Tenth Circuit reversed the district court’s judgment and remanded with instructions to dismiss the case for lack of jurisdiction. The Tenth Circuit granted Williams’ motion to file a second or successive habeas petition as related to the firearm charge. Judge Bacharach dissented, arguing the Circuit should have respected the district court’s assertion that it acted sua sponte.

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 Denied in Death Sentence Case

The Tenth Circuit Court of Appeals published its opinion in Howell v. Trammell on Thursday, September 5, 2013.

This appeal considers two petitions for habeas relief arising from the murder conviction and death sentence of Michael Wayne Howell. The conviction resulted from a crime spree Howell and Mona Lisa Watson committed. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed his conviction but reversed his death sentence and remanded for resentencing based on juror misconduct during the penalty phase of the trial. He was resentenced to death.

Howell’s first habeas petition was in 2002. After the Supreme Court in Atkins v. Virginia ruled that states could not impose capital punishment on persons with mental impairments, the Tenth Circuit abated that petition and allowed Howell to pursue a mental-disability challenge to his sentence in Oklahoma state court.

In 2005, a state court jury found that Howell was not mentally retarded after an Atkins hearing. Howell then filed a second habeas petition, alleging seventeen grounds for relief from his mental-disability trial, in addition to the five grounds remaining from his first petition that that were never considered by this court. The district court denied all relief and declined to grant a certificate of appealability (COA). The Tenth Circuit denied a COA on the second petition but addressed his first habeas petition that had been held in abeyance and Howell’s motion to reconsider his COA request.

Howell raised multiple challenges to his original guilt phase trial, including that (1) the juror misconduct responsible for reversing his first death sentence also required granting him a new trial on guilt; (2) the admission of Watson’s preliminary hearing testimony at their joint trial violated his Confrontation Clause rights; and (3) one juror’s failure to fully disclose his prior employment history deprived Howell of a fair and impartial jury. He also claimed that (4) his Confrontation Clause rights were violated when Watson’s former attorneys were allowed to testify about prior communications with Watson during his and Watson’s joint trial, a claim which Howell says the OCCA failed to address. He also argued that his counsel was constitutionally ineffective in revealing to the jury that Howell was already on death row during his retrial for sentencing. The Tenth Circuit affirmed the district court’s denial of relief on all these claims.

Regarding his second habeas petition, Howell sought a COA on four issues: (1) the applicable burden of proof in Atkins proceedings; (2) prosecutorial misconduct at jury selection; (3) ineffective assistance of counsel; and (4) insufficient evidence to support the jury’s mental retardation finding. Under AEDPA deference standard of review, the court found no reason to grant COA and dismissed his second habeas petition appeal.

Tenth Circuit: Petitioner Convicted of Rape and Murder in 1982 Failed to Meet His Burden in Conditional Habeas Corpus Petition

The Tenth Circuit published its opinion in Case v. Hatch on Friday, April 12, 2013. Because this is an amended opinion after rehearing with the same outcome as previously, no new summary is provided.  See the summary of the February 26, 2013 opinion here.

Tenth Circuit: Denial of Habeas Relief Affirmed in Death Penalty Case

The Tenth Circuit published its opinion in Lockett v. Trammel on Monday, April 1, 2013.

An Oklahoma state court jury convicted Clayton Lockett of 19 counts, including burglary, assault, rape, and first degree murder. He was sentenced to 2,285 years and 90 days of imprisonment for his non-capital crimes and sentenced to death for his murder conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Lockett’s convictions and sentence and later denied post-conviction relief. Lockett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and death sentence on 15 grounds. The federal district court denied relief but granted a certificate of appealability (“COA”) on seven grounds, one of which Lockett abandoned. Lockett sought to add three additional COAs in this appeal but the court denied that request.

Lockett’s trial counsel did not present a defense in the guilt phase of the trial but did present mitigation evidence in the death penalty phase focusing on Lockett’s childhood trauma. One witness, a social worker, was prohibited from testifying about facts specific to Lockett or that his childhood experiences affected his behavior as an adult. The court held that while the limitation on her testimony was erroneous, it did not have a “‘substantial and injurious effect’” on the jury verdict.” A second mitigation witness, a psychiatrist, testified to specific abuse experienced by the defendant as a child and how that abuse affected his behavior.

The trial court allowed the admission of a victim impact statement by the murder victim’s family. The Tenth Circuit held that the portions of the statement that included characterizations of the crime, opinions about the defendant, and a request for the death penalty to be imposed violated the Eighth Amendment under Booth v. Maryland, 482 U.S. 496 (1987). The court pointed out that Oklahoma is the only state to allow such statements, despite the Tenth Circuit’s disapproval. The court found that the admission of the unconstitutional portions of the impact statement was, however, harmless error.

Before trial, the defendant was examined at the government’s request by a psychiatrist, Dr. Call, because Lockett was considering pleading insanity. The government called this psychiatrist to testify as a rebuttal witness during the penalty phase. Lockett argued that Dr. Call’s examination of Lockett exceeded the scope agreed to by Lockett’s attorney, which violated the Sixth Amendment. The court rejected this argument.

The court also rejected Lockett’s argument that the evidence was insufficient to support the jury’s finding with respect to one of the five aggravating circumstances: that he created a great risk of death to more than one person.

Lockett argued cumulative error in the penalty phase was prejudicial and required reversal. The court disagreed.

Lockett argued that he received ineffective assistance of counsel at the guilt phase of his trial because his attorney conceded his guilt to the jury and allegedly failed to notify him of the strategy. Because conceding guilt can be a reasonable trial strategy, Lockett failed to meet the Strickland standard of deficient counsel performance that prejudiced him. The Oklahoma Criminal Court of Appeals’ decision to apply Strickland rather than Croncic was reasonable and entitled to AEDPA deference.

After rejecting Lockett’s motion to add COAs, the Tenth Circuit affirmed Lockett’s conviction and death sentence.