CA10 — memorandum dispositions

Garrison v. Ortiz, No. 08-1216 — The court denied a COA to challenge the admission of statements of the victim at the petitioner’s trial for first-degree murder in Colorado state court.  The victim had taken some personal calls at work, which the victim’s manager noticed had upset the victim.  The victim told the manager that someone from California had threatened to kill him.  These statements were admitted under the residual exception to the hearsay rule over the petitioner’s confrontation objection.  The court held that the statements were not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), because the statements were meant to indicate the victim’s mood rather than to confirm that someone was, in fact, coming to kill him.  The court did comment that prior cases applying Ohio v. Roberts, 448 U.S. 56 (1980), to nontestimonial statements, such as United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007), had been “abrogated” by Crawford.  (The court made this comment in an unpublished opinion that did not cite any published opinions for this proposition.)

United States v. Minners, No. 08-5092 — The court denied a COA to appeal the dismissal of an untimely motion under 28 U.S.C. §2255.

United States v. Zunie, No. 08-2125 — The court denied a COA to appeal the denial of a § 2255 motion challenging a conviction for assault resulting in serious bodily injury in violation of 18 U.S.C. § 113.  His claims of constitutional Booker error were barred because they had been resolved on direct appeal.  A contention that the mandatory additional period of supervised release constituted additional punishment was not considered because it was raised for the first time on appeal.  Counsel was not ineffective for failing to continually insist that, under Blakely v. Washington, 542 U.S. 296 (2004), the jury had to find the facts necessary for the guidelines enhancement of his sentence.  Counsel raised this argument once during sentencing, and once was enough.

Stephens v. Miller, No. 08-5034 — The court denied a COA to appeal the denial of a § 2254 petition.  The court agreed with the district court that the petitioner’s claims were procedurally defaulted.  The petitioner was not actually innocent of the crime, so as to lift the procedural default.  Mere contradiction in witness testimony does not establish factual innocence.  Furthermore, the petitioner was tried while competent and medicated, because he continued to receive antipsychotic medication prescribed by the state hospital while confined in the county jail during his trial.

CA10 — memorandum disposition

Titsworth v. Mullin, No. 08-7057 — The court denied a COA to a pro se habeas petitioner.  The § 2254 petition was untimely.  The petitioner pleaded guilty to petit larceny and did not appeal.  Five years after the conviction became final, the § 2254 petition was filed.  There was no statutory tolling because he did not file any sort of postconviction motion until four years after the conviction became final.

CA10 — memorandum dispositions

United States v. Fridliefson, No. 08-4131 — The court denied a COA in a § 2255 appeal.  In pleading guilty to a drug charge with a stipulated sentence under Fed. R. Crim. P. 11(c)(1)(C), the petitioner agreed not to seek collateral review of his sentence except to the extent necessary to argue that it exceeded the statutory maximum penalty.  He filed a § 2255 motion, claiming ineffective assistance of counsel.  The district court found the motion to be barred by the waiver provision in the plea agreement.  He argued that trial counsel was ineffective for incorrectly computing the applicable guildelines range, but the court concluded that error in computing the guidelines range did not affect the validity of the guilty plea or his decision to enter into a plea agreement.

Martin v. Ray, No. 08-5083 — The court denied a COA in a § 2254 appeal.  The petitioner had been charged with two counts of child abuse, but he was acquitted of one at trial.  He was sentenced to 20 years in prison.  He filed for federal habeas relief, raising three claims.  First, he argued that the statute of limitations had expired with respect to his charges.  Second, he argued that the trial court’s excluding a videotaped interview with a police detective violated his right to present a defense.  Third, the prosecutor improperly elicited an opinion from a witness regarding the petitioner’s truthfulness.  The district court rejected all these claims.  The court rejected these claims as unexhausted, procedurally defaulted, and meritless.

CA10 — memorandum disposition

United States v. Ocampo, No. 07-6221 — The court denied a COA to appeal in a 2255 case.  The court rejected the petitioner’s claim of ineffective assistance of counsel because counsel appointed to represent him on appeal did not furnish the court with a complete transcript of the trial.  (Lame!)  The court also considered and rejected a claim under Brady v. Maryland, 373 U.S. 83 (1963), that the petitioner had not raised in the district court.  The court rejected the Brady claim on the merits because the petitioner did not offer any evidence that the prosecution withheld any evidence.

CA10 — memorandum dispositions

Bowen v. Kansas, No. 08-3022 — The court vacated a COA as improvidently granted and dismissed an appeal in a § 2254 case.  The petitioner was arrested when police arrived to serve an outstanding warrant; they discovered significant evidence of a methamphetamine manufacturing operation, including a book entitled Secrets of Methamphetamine Manufacture.  After the Kansas Court of Appeals ordered a hearing on an IAC claim, it reversed and remanded for a new trial.

At the new trial, new counsel and the prosecution agreed to have a bench trial on stipulated facts — the transcript of the first trial minus the petitioner’s testimony, so that he could retain his right not to testify on his own behalf.  The petitioner invoked this right, and he was again convicted and sentenced, although his second sentence was 12 months less than his first.  (Both sentences were in excess of 25 years.)  The state courts affirmed the second conviction on direct review.

In state post-conviction proceedings, the petitioner argued that he had never voluntarily waived his right to jury trial and that his trial counsel never explained the terms of the stipulation to him.  Trial counsel continued to represent him on direct appeal, and refused to raise these claims.  The Kansas Court of Appeals deemed these claims to be procedurally barred because he could have raised them on direct review, and the Kansas Supreme Court denied review.

The petitioner pressed his two state post-conviction claims in federal court, and ultimately the Tenth Circuit certified for appeal the claim regarding the waiver of the jury trial.  The court ruled it was procedurally defaulted.  The failure to raise a “trial error” such as the voluntariness of waiving a jury trial was an independent and adequate basis for denying relief; for this proposition, the Tenth Circuit cited two prior unpublished dispositions of the court.  Nor was the fact that direct appeal counsel was the same lawyer as trial counsel “cause” to excuse the procedural default.  To the extent that that fact goes to ineffectiveness, Edwards v. Carpenter, 529 U.S. 446 (2000), did not allow the court to lift the default because the ineffectiveness claim was unexhausted.

Pierce v. Romero, No. 08-2005 — The court denied a COA and dismissed an appeal because the notice of appeal was not timely filed.  The district court denied judgment on November 20, 2007, and the petitioner averred that he mailed his notice of appeal to the U.S. Court of Appeals for the Federal Circuit on December 14, 2007.  The Federal Circuit did not transfer the notice of appeal to the U.S. District Court for the District of New Mexico, the court in which it could properly have been filed.  Instead, it returned the notice to the petitioner, who refiled it in the district court on December 28, 2007.  The rule allowing for transfer of notices of appeal filed in the wrong court, 28 U.S.C. § 1631, did not apply because the Federal Circuit did not deem the notice of appeal “filed.”  Accordingly, the appeal was not timely.

CA10 — memorandum dispositions

Torres v. Heredia, No. 08-2110 — The court denied a COA to appeal the denial of a 2254 petition.  Correcting an “arithmetic” error in the computation of the petitioner’s sentence did not deny him due process.  Nor did it violate the Double Jeopardy Clause, because the petitioner himself asked the state courts to correct the error he identified, and thus he had no expectation in the finality of his sentence.

Brown v. Oklahoma, No. 08-6058 — The court denied a COA to appeal the dismissal of a 2254 petition as time-barred.  He filed the petition four years after the AEDPA limitation period expired.  Ineffectiveness of trial counsel was not grounds for equitable tolling.  Nor did actual innocence excuse the untimely filing, for that did not serve as a free-standing basis for relief, and he did not show that it was more probable than not that no reasonable juror would have convicted him.

CA4 — memorandum dispositions

Smith v. Governor, No. 08-6078 (CA4) — The district court denied the petitioner’s Rule 60(b) motions because they were the functional equivalent of second or successive habeas petitions.  The Fourth Circuit denied a COA, and denied authorization to file a second or successive petition.

U.S. v. Giron, No. 08-6285 (CA4) — The court denied a COA to appeal the denial of a 2255 motion.

Edwards v. Johnson, No. 08-6372 (CA4) — The court denied a COA to appeal the denial of a 2254 petition.

Thomas v. Johnson, No. 08-6386 (CA4) — The court denied a COA to appeal the denial of a 2254 petition.

Thomas v. Johnson, No. 08-6389 (CA4) — The court denied a COA to appeal the denial of a 2254 petition.

Vannatter v. Bazzle, No. 08-6422 (CA4) — The court denied a COA to appeal the denial of a 2254 petition.

Porter v. Snyder, No. 08-6426 (CA4) — The court affirmed the denial of a 2241 petition for the reasons given by the district court.

U.S. v. Griffith, No. 08-6598 (CA4) — The court denied a COA to appeal the denial of a 2255 motion.

CA10 — memorandum decision

Payne v. Miller, No. 08-7008 — The court denied a COA to appeal the denial of a 2254 petition brought by an Oklahoma state prisoner.  The district court had ruled that three of the claims were procedurally defaulted because the petitioner had failed to raise them on direct appeal.  The Tenth Circuit denied the COA in light of its rule that this procedural bar in Oklahoma law was independent and adequate to support procedural default.  Furthermore, arguing the merits of the claims is insufficient to demonstrate cause and prejudice to excuse the procedural default.

U.S. v. Orozco (CA10)

U.S. v. Orozco, No. 07-3315 (CA10, unpublished order) — The Tenth Circuit denied a COA in a 2255 case.  The petitioner had waived his right to file a direct appeal and a 2255 motion when he pleaded guilty to distributing methamphetamine in federal court.  He filed a direct appeal anyway, which the court dismissed.  He then filed a 2255 motion, asserting a claim of IAC on direct appeal and a claim under United States v. Booker, 543 U.S. 220 (2005).  The district court dismissed the 2255 motion in light of the waiver provision of Orozco’s plea agreement.  The Tenth Circuit denied the COA because the dismissal in light of the waiver provision was not “reasonably subject to debate.”

Mars v. Dinwiddie (CA10)

Mars v. Dinwiddie, No. 08-6062 (CA10) — The Tenth Circuit, in an unpublished order, denied a COA to a habeas petitioner in a 2254 case.  Mars is serving a 20-year sentence for assault and battery with intent to kill, and has exhausted direct appeals and state post-conviction relief available to him.  The Tenth Circuit denied Mars’s request for a COA, agreeing with the district court that his claims were meritless and that he had not substantially shown the denial of a constitutional right.  Mars had asserted insufficient evidence, prosecutorial misconduct, and IAC at trial and on direct appeal, as grounds for relief.