July 18, 2019

Tenth Circuit: In Death Penalty Case, Court Affirms Lower Courts’ Denial of Petitions for Post-Conviction Relief

The Tenth Circuit published its opinion in Lott v. Trammell on Monday, January 14, 2013.

This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury’s verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state postconviction relief were unsuccessful, Lott sought federal habeas relief by filing a petition for writ of habeas corpus. The district court denied Lott’s petition. Having been granted a certificate of appealability with respect to several issues, Lott appealed.

The Tenth Circuit affirmed the district court’s denial of federal habeas relief as follows. It is important to note that the review of Lott’s appeal was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts.  As a result, the Tenth Circuit’s focus on appeal was upon the rulings of the Oklahoma Court of Criminal Appeals (OCCA), not those of the federal district court.

1) Speedy Trial Claim: Lott contended that the state trial court violated his Sixth Amendment rights by denying his motions to dismiss the criminal proceedings on speedy trial grounds. The Tenth Circuit held that Lott failed to establish that the OCCA erred in concluding that two of the factors in Barker v. Wingo, 407 U.S. 514 (1972),  favored the State.  Consequently, Lott failed to establish that the OCCA’s balancing of the Barker factors was erroneous.

2) Erroneous Aiding and Abetting Instruction: Lott contended that the state trial court violated his constitutional rights by instructing the jury that he could be found guilty of felony murder on an accomplice liability theory, even though the prosecution at a pretrial motions hearing had disavowed reliance on an aiding and abetting theory of felony murder. The Tenth Circuit concluded that Lott was given plenty of notice concerning the State’s alternative theories of guilt, and the trial court’s aiding and abetting instruction was amply supported by the evidence presented at trial.

 3) Admission of Other-Crimes Evidence: Lott contended that he was deprived of his right to a fundamentally fair trial due to the admission at trial of evidence that he was convicted of two other rapes. A review of the state court record indicated that Lott’s trial was not rendered fundamentally unfair by the admission of the evidence of the other rapes. Aside from the other-crimes evidence, the prosecution’s evidence of Lott’s guilt of rape and murder (particularly the DNA evidence) was overwhelming. Further, it was clear to the Tenth Circuit that the other-crimes evidence would have, at a minimum, been admissible by the prosecution during the second-stage proceedings in order to prove the continuing-threat aggravator. Lastly, the jury rejected the continuing-threat aggravator, and thus it did not appear that this evidence had any impact on the jury’s sentencing decision.

4) Prosecutorial Misconduct—Introduction of Hearsay Statements of Robert Miller: Lott contended that the prosecution engaged in prejudicial misconduct by injecting hearsay statements of Robert Miller into both stages of trial in order to prove that, even though Miller may have been present during the commission of the crimes, it was Lott who killed both victims because he needed to eliminate witnesses. However, the transcript showed it was Lott’s counsel who first introduced Miller’s statements into evidence by cross-examining McKenna regarding Miller’s statements.

5) Trial Counsel’s Failure to Investigate and Present Mitigating Evidence: Lott contended that his trial counsel was ineffective for failing to investigate and present at the second-stage trial proceedings available mitigating evidence. The Tenth Circuit concluded that the only reasonable inference that could be drawn from the record was that Lott’s counsel determined that introduction of Lott’s social history would be more detrimental than beneficial, and thus made a strategic decision not to present that evidence. After carefully examining the record on appeal, the Tenth Circuit concluded that Strickland v. Washington, 466 U.S. 668 (1984), was reasonably applied.

6) Admission of Improper Victim Impact Evidence: Lott contended that the state trial court’s admission of improper victim impact testimony from witness Cynthia Houston, the granddaughter of victim Fowler, resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments. Although Lott’s constitutional rights were violated by the admission of Houston’s testimony opining about the appropriate sentence for Lott, the Tenth Circuit held that the  testimony did not have the required “substantial and injurious effect” on the outcome of the second-stage proceedings, given the overwhelming evidence of Lott’s guilt, as well as his admitted guilt of the two subsequent rapes, and the cruel and brutal nature of the crimes.

7) Sufficiency of Evidence—Avoid Arrest or Prosecution Aggravator: Lott contended that insufficient evidence was presented at his trial to support the jury’s second-stage findings that the two murders were committed in order to avoid arrest or prosecution. The Tenth Circuit concluded that the OCCA’s determination that the evidence was constitutionally sufficient to support the jury’s finding of the aggravator was neither contrary to, nor an unreasonable application of, clearly established federal law.

8) Cumulative Error: Lott lastly contended that the cumulative effect of all of the constitutional errors in his case warranted federal habeas relief. Upon de novo review, the Tenth Circuit could not conclude that, having identified only a single constitutional error (as described above), and having exhaustively examined the record on appeal, that Lott’s trial was “so infected . . . with unfairness as to make the resulting conviction[s] [or sentences] a denial of due process.”


Tenth Circuit: Unpublished Opinions, 1/14/13

On Monday, January 14, 2013, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Rangel v. Sanofi Aventis US

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 1/11/13

On Friday, January 11, 2013, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

Floyd v. Ploughe

Poddar v. United States Trustee

Rueb v. Zavaras

Penrod v. Quick

Zuniga-Espinoza v. Holder

Romero v. Ploughe

United States v. Malone

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 1/3/13

On Tuesday, January 2, 2013, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Grady v. Garcia

United States v. Montgomery

United States v. Montgomery

United States v. Van Tuyl

Wehrley v. American Family Mutual Insurance Company

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 1/2/13

On Tuesday, January 2, 2013, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Leo v. Garmin International

United States v. Perez-Lopez

United States v. Swearingen

Smith v. Nichols

United States v. Rocha-Roman

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 12/20/12

On Thursday, December 20, 2012, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

In the Matter of Evans

United States v. Trent

United States v. Galbreath

Harrison v. M-D Building Products

Ibarra v. Holder

Lodgeworks v. C.F. Jordan Construction

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.


Tenth Circuit: Child Died While in Foster Care–Denial of County Employees’ Motion to Dismiss Based on Qualified Immunity Affirmed

The Tenth Circuit published its opinion in Schwartz v. Booker on Wednesday, December 19, 2012.

After their son, Chandler Grafner, died while in the foster care of Jon Phillips and Sarah Berry, Chandler’s biological parents and Melissa R. Schwartz, personal representative and administrator of Chandler’s estate, filed suit against two human services departments and two Denver County Department of Human Services employees alleging, among other claims, a 42 U.S.C. § 1983 claim for violation of Chandler’s substantive due process rights. The two employees, Defendants-Appellants Margaret Booker and Mary Peagler, filed this interlocutory appeal from the district court’s order denying their Rule 12(b)(6) motion to dismiss on the basis of qualified immunity.

Qualified immunity protects governmental officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This doctrine balances the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. To survive a motion to dismiss based on qualified immunity, the plaintiffs must allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”  U.S. Const. amend. XIV. Section 1983 provides a private cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution.”  42 U.S.C. § 1983. Generally, state actors are only liable for their own acts, not for acts of private violence. One exception to this principle is the special relationship doctrine, which applies when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.

The Tenth Circuit has explicitly recognized that foster children have a substantive due process right to protection while in foster care. The special relationship triggers a continuing duty which is subsequently violated if a state official knew of the asserted danger to a foster child or failed to exercise professional judgment with respect thereto, and if an affirmative link to the injuries the child suffered can be shown.

Denver County Department of Human Services effectively exercised custody over Chandler. Defendants were aware of Chandler’s circumstances and were the custodial officials responsible for overseeing Chandler’s foster care case. Consequently, the Tenth Circuit was persuaded that plaintiffs sufficiently pled a custodial relationship between the State and Chandler to potentially hold Booker and Peagler individually liable under the special relationship doctrine. The district court correctly determined that plaintiffs sufficiently pled facts, when taken as true, show Booker and Peagler plausibly violated Chandler’s substantive due process right to be reasonably safe while in foster care, which right was clearly established at the time.

Accordingly, the judgment of the district court was AFFIRMED.


Tenth Circuit: In Death of a Child, Summary Judgment in Favor of Social Worker on Qualified Immunity Grounds Inappropriate

The Tenth Circuit published its opinion in The Estate of B.I.C. v. Gillen on Wednesday, December 19, 2012.

This case stems from the death of a minor child, 23-month-old Brooklyn Coons (“B.I.C.”) at the hands of her father’s girlfriend. Plaintiffs-Appellants, Larry and Mary Crosetto and the Estate of B.I.C., filed an action alleging that a social worker, Defendant-Appellee, Linda Gillen, created the danger that resulted in the death of their granddaughter and denied them their rights to familial association. The district court granted summary judgment in favor of Ms. Gillen on qualified immunity grounds. Plaintiffs appeal.

On appeal, Plaintiffs argue that qualified immunity was unwarranted on their state danger-creation and familial association claims.

Qualified Immunity

Qualified immunity protects government employees from suit, except those who are plainly incompetent or those who knowingly violate the law. A plaintiff may only overcome a government official’s immunity by showing first that the official violated the plaintiff’s federal statutory or constitutional rights, and that the rights in question were clearly established at the time of their alleged violation.

The Due Process clause of the Fourteenth Amendment protects an individual’s life, liberty, and property against government actions. Generally, it does not require the state to protect life, liberty, and property of its citizens against invasion by private actors. There are two exceptions to this rule.  First, state officials may be liable for the acts of private parties when the state has assumed a special relationship with and control over an individual. Second, state officials can be liable for the acts of private parties where those officials created the very danger that caused the harm. The Crosettos argue that the danger-creation exception applies here.

A showing of affirmative conduct and private violence are preconditions necessary to invoking the state-created danger theory. Here it is undisputed that B.I.C.’s death was caused by an act of violence by a private party. There is, however, a question as to whether there is sufficiently affirmative conduct on the part of the state in placing B.I.C. in danger. Mere negligence or inaction is not enough. A social worker who fails to act may be negligent but does not forfeit immunity when there is no affirmative action.

The Tenth Circuit held there remained an issue here as to whether Ms. Gillen purposefully, maliciously, and intentionally failed to act—therefore placing B.I.C. in harm’s way. The evidence viewed in the light most favorable to the plaintiffs indicates a deliberate decision to ignore. There were numerous, specific indications of abuse and a deliberate decision not to remove B.I.C. or respond in any way to the extensive evidence of abuse. A rational trier of fact could find that Ms. Gillen’s conduct went well beyond merely allowing unreasonable risks to persist, but was deliberate, affirmative conduct in light of her specific knowledge of real danger to B.I.C. These facts, taken in the light most favorable to the Crosettos, could constitute violations of due process rights at trial.

Familial Association

The Crosettos also claimed that their due process rights to familial association were violated by Ms. Gillen’s actions. In order to show deprivation of the right to familial association, a plaintiff must show that the state actor intended to deprive him or her of a specially protected familial relationship. Plaintiff must show that by specified acts and conduct, defendant intentionally, or with conscious disregard for plaintiff’s rights, deprived them of associational rights, with the qualification immediately following that specifically, Defendant knew, or should have known that by her actions, death was likely to occur, and the plaintiffs would be denied the companionship and association of the decedent. Because it was undisputed that Ms. Gillen had no specific intent to cause the death of B.I.C., the Crosettos’ familial association claims failed.

Accordingly, the Tenth Circuit REVERSED in part, holding that qualified immunity was not appropriate on the state danger-creation claim. The Tenth Circuit AFFIRMED summary judgment on the familial association claim.

Tenth Circuit: In Mine Collapse Case, One Defendant Properly Dismissed for Lack of Jurisdiction; Dismissal of Remaining Defendants Under Forum Non Conveniens Doctrine Was Premature

The Tenth Circuit published its opinion in Fireman’s Fund Insurance Company v. Thyssen Mining Construction of Canada on Wednesday, December 19, 2012.

Fireman’s Fund Insurance Company and Zurich Insurance Company Ltd. (collectively “Plaintiffs”), as subrogees of Boart Longyear, Inc., sued Thyssen Mining Construction of Canada Ltd. (“Thyssen”) and Mudjatik Thyssen Mining Joint Venture (“MTM”) (collectively “Defendants”) in New Mexico for negligence relating to the collapse of a mine that MTM was excavating in Canada. The district court dismissed MTM for lack of personal jurisdiction and dismissed the entire case under the forum non conveniens doctrine. Plaintiffs appealed.

On appeal, Plaintiffs contest (1) the dismissal of MTM for lack of personal jurisdiction and (2) the grant of Defendants’ motion to dismiss under the forum non conveniens doctrine.

Personal jurisdiction over a nonresident defendant satisfies due process if there are sufficient minimum contacts between the defendant and the forum State, and jurisdiction over the defendant cannot offend traditional notions of fair play and substantial justice. Because Plaintiffs did not allege any facts to establish that MTM had the requisite minimum contacts with New Mexico to confer personal jurisdiction, nor did they allege facts showing that the New Mexico district court had personal jurisdiction over MTM under the agency theory, the Tenth Circuit affirmed dismissal of Defendant MTM for lack of personal jurisdiction.

Courts apply a two-step test to determine whether a case may be dismissed under the forum non conveniens doctrine when the only alternative forum is in a foreign country. First, there must be an adequate alternative forum in which the defendant is amenable to process. Second, the court must confirm that foreign law is applicable.

The Tenth Circuit held that the district court was premature in determining that the Canadian court was an adequate alternative forum. The forum non conveniens decision focused on the applicability of Canadian law and the inconvenience of New Mexico as a forum. The district court’s dismissal of Plaintiffs’ claims was premature because the Canadian court had not yet ruled on Defendants’ statute of limitations defense. Until this ruling occurs, the availability of the Canadian court as an adequate alternative forum was unclear and dismissal of the case in New Mexico risked depriving the Plaintiffs of any forum.

Dismissal of MTM AFFIRMED. Dismissal of Plaintiffs’ case under the forum non conveniens doctrine REVERSED and REMANDED.

Tenth Circuit: Officers Entitled to Qualified Immunity When Inmate Cut His Dreadlocks, Contrary to His Religious Beliefs; No RLUIPA Cause of Action Against Individual Officers

The Tenth Circuit published its opinion in Stewart v. Beach on Tuesday, December 18, 2012.

Mr. Stewart was an inmate at the Kansas Department of Corrections. In accordance with his Rastafarian religious beliefs, he did not cut or comb his hair, which he kept in dreadlocks. Stewart learned that his mother had been diagnosed with cancer.  To be closer to her, Stewart requested a transfer to the Lansing Correctional Facility. His request was granted. On the day of the transfer, defendant Officer Beach refused to allow Stewart to board the transport vehicle because he could not comb out his dreadlocks as was required as a security procedure. Beach consulted with her supervisor, defendant Wilson, who gave Stewart the choice of either cutting his hair or foregoing the transfer. Stewart eventually cut off his dreadlocks and was transferred to Lansing.

Stewart filed an action asserting that defendants forced him to choose between adhering to his religious beliefs and transferring closer to his ailing mother, and that this violated his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Beach and Wilson filed a motion to dismiss, which was granted on the ground that Beach and Wilson were entitled to qualified immunity. Stewart appealed.

Stewart argued that the officers were not entitled to qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In resolving a motion to dismiss based on qualified immunity, a court must consider whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of defendants’ alleged misconduct. The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

In the absence of controlling authority, the Tenth Circuit concluded that a constitutional right is clearly established if there is a robust consensus of cases of persuasive authority. From the Court’s survey of these cases, the most it could say was that defendants had warning that enforcement of the grooming policy might violate Stewart’s free exercise right. But the Court could not say that it was clearly established that their enforcement of the policy violated Stewart’s constitutional rights.  The Court therefore concluded that defendants were entitled to qualified immunity.

 Stewart further argued that his rights were violated under RLUIPA. The Act protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion. RLUIPA also provides a cause of action against a government. Since RLUIPA does not provide a cause of action against individual defendants in their individual capacities, the Tenth Circuit affirmed the district court’s dismissal of this claim.


Tenth Circuit: No Fourth Amendment Violation in Search and Seizure of Defendant’s Home and Vehicle

The Tenth Circuit published its opinion in United States v. Jones on Tuesday, December 18, 2012.

Officers of the Missouri State Highway Patrol conducted surveillance of a hydroponics store in Kansas City, Missouri. Defendant-Appellant Mr. Jones (“Jones”) arrived at the store.  After he entered the store, Sergeant Blunt requested a computer check on the license plate of Mr. Jones’s truck. The records indicated that his driving privileges had been suspended in Missouri, and that he was on parole in Missouri for a prior drug offense. Mr. Jones drove from the store in Kansas City, Missouri, to his residence in Kansas City, Kansas. The officer approached Mr. Jones in the alley behind his house, where the Officer told Jones he was conducting a drug investigation, and that he was there for Mr. Jones’ marijuana plants.

Without explicitly saying so, Sergeant Blunt indicated that he wanted to search Mr. Jones’s residence.  Sergeant Blunt never explicitly told Mr. Jones that he could refuse consent. Mr. Jones never told the officers that he did not want them to search his residence. At some point, Mr. Jones walked toward his residence. Once inside, Mr. Jones unlocked another door, grabbed a gun, and shot Sergeant Blunt.  Trooper Tyrrell wounded Mr. Jones and the officers retreated to their vehicles.

The officers radioed dispatch, who notified the officers that they were in fact in Kansas City, Kansas.  The Kansas City, Kansas, Police Department responded to the location and took command.

The Kansas City, Kansas, Police Department got search warrants to search Mr. Jones’s residence and vehicle, which resulted in the seizure of evidence related to marijuana and firearms possession.

Mr. Jones was indicted and filed a motion to suppress, arguing that the evidence obtained from Mr. Jones’s home and truck was obtained as a result of an unlawful detention of Mr. Jones, and a warrantless entry into his home without consent. The district court denied the motion. Jones appealed.

On appeal, Mr. Jones makes five arguments:

First, Jones argues that because the Missouri officers were acting outside of their jurisdiction (in Kansas), their seizure of Mr. Jones effected a Fourth Amendment violation. There is no dispute that the interaction with Mr. Jones and the Missouri officers was outside of their jurisdiction. However, in federal prosecutions, the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by federal law even though the police actions are those of state police officers. Accordingly, Mr. Jones’s argument is mistaken.

Second, Jones contends that the Missouri officers’ conversation with him in the alley amounted to a seizure. A Fourth Amendment seizure does not occur simply because a police officer approaches an individual and asks a few questions. Accordingly, under the totality of the circumstances, a reasonable person in Mr. Jones’s position would have felt free to terminate his encounter with the Missouri officers outside of his home.

Third, Mr. Jones contends that there was not reasonable suspicion for the officers to take his driver’s license and detain him. The government admits that what began as a consensual encounter became an investigative detention once the agents received Mr. Jones’ driver’s license and did not return it to him. However, there were a number of facts available to the Missouri officers at the time they took Mr. Jones’s license that would have justified their objectively reasonable suspicion that Mr. Jones was engaged in criminal activity, warranting his detention for further investigation.

Fourth, he maintains that he did not consent to the Missouri officers’ entry into his home. There can be no doubt that Mr. Jones’s actions here—though nonverbal—could have been reasonably interpreted by the Missouri officers as communicating Mr. Jones’s consent to their accompanying him into his home.

Finally, because the Kansas search warrants for his home and car were based upon information improperly unearthed by the Missouri officers in violation of the Fourth Amendment, the evidence secured by the warrants is tainted and thus inadmissible. However, the Tenth Circuit already concluded that the Missouri officers’ lack of authority under Kansas law was of no import to the Fourth Amendment seizure analysis. Therefore, the evidence that the Missouri officers obtained during their investigation could properly form the basis for the warrants secured by the Kansas officers.



Tenth Circuit: Unpublished Opinions, 12/18/12

On Tuesday, December 18, 2012, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

The Meadows at Buena Vista v. Arkansas Valley Publishing Company

United States v. Batts

United States v. Huerta-Cesareo

Kinney v. Blue Dot Services of Kansas

Kinney v. Department of Justice

United States v. Ciocchetti

Ramone v. Bravo

Myers v. Jackson

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.