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  (The court made this comment in an unpublished opinion that did not cite any published opinions for this proposition.)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 decision

Katekaru v. Scott, No. 08-3130 — The petitioner complained that the Bureau of Prisons did not correctly compute his “good camp” time for a parole revocation following a 1987 conviction on making a false statement to the IRS.  The district court had denied a § 2241 petition in 1993 (or possibly early 1994).  Fourteen years later, the petitioner filed a Rule 60(b)(4) motion, asking the district court for relief on the ground that the judgment is void because the district court failed to docket a letter asking for relief from the judgment in the § 2241 case.  The Tenth Circuit affirmed the denial of the motion, finding no due process violation and agreeing that the judgment was not void merely because it may have been erroneous.

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 disposition

Harris v. Wilmer, No. 08-1162 — This is an appeal from the denial of a § 2241 petition.  The petitioner pleaded guilty to a federal crime and received a 300-month sentence.  The plea agreement required him to waive his right to file a § 2255 motion challenging his sentence.  He filed one anyway, in federal court in Indiana, which was denied as untimely and barred by the plea agreement.  He did not appeal to the Seventh Circuit.  Later on, while imprisoned in Colorado, he filed a § 2241 petition challenging his conviction and sentence.  The district court denied it because the claims he raised were more appropriate for § 2255 motions and he had filed in the wrong district.  The Tenth Circuit affirmed because he had not shown that the § 2255 remedy was ineffective or inadequate merely because he was precluded from filing either a first (because of the plea agreement) or second (because of AEDPA) § 2255 motion.

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.

CA10 — memorandum dispositions

Varela v. Moya, No. 08-2043 — The court denied a COA on three claims relating to a conviction stemming from a fatal gang-related shooting in New Mexico.

The petitioner had been convicted of felony murder, the predicate felony for which was “shooting at a dwelling,” which is either a fourth-, third-, or second-degree felony depending on the magnitude of harm short of death caused.  He argued that death was not “great bodily harm,” and thus was not guilty of the underlying felony.  But causing no harm at all as a result of the shooting still resulted in a conviction for the predicate felony, and thus there was sufficient evidence to sustain the felony-murder conviction.

The petitioner also challenged the admission of a coconspirator’s pretrial statement at trial as violating his confrontation rights.  But since the coconspirator testified at trial, there was no violation.  Hence trial counsel was also not ineffective for failing to raise the confrontation issue.

Long v. Peterson, No. 07-6299 (juvenile LWOP) — The court affirmed the dismissal of a 2254 petition as untimely.  In the district court, the petitioner had conceded he had filed late, but argued that the court should consider his petition on the merits in order to avoid a fundamental miscarriage of justice.  The petitioner also conceded that he did cause the death of another person.  The state courts had already rejected his affirmative defenses to the homicide charge, and the petitioner introduced no new evidence that could change the verdict.

On appeal, the court observed that equitable tolling was necessary to save the petition.  The “equitable tolling” the court considered was the possibility that the petitioner was actually innocent, which the court took to mean legal innocence, not factual innocence.  Since the petitioner conceded that his actions caused the death of the victim, he could not overcome this hurdle.  Moreover, the evidence that he lacked the mens rea for the homicide crime had been considered and rejected by the state courts.

Finally, the court declined to reach three uncertified issues because the petitioner failed to raise them in his objections to the magistrate’s report and recommendation.  That failure constituted a waiver (the court probably means forfeiture) of the issues.

CA10 — memorandum dispositions

Jackson v. Ray, No. 08-6099 (8/27/08) — In a lengthy order, the court denied a COA to appeal the denial of a 2254 petition.  The state courts rejected the petitioner’s Fourth Amendment claims on the merits, and so Stone v. Powell, 428 U.S. 465 (1976), precluded review in federal habeas.  Likewise, his due process challenges to the state post-conviction proceedings were precluded.  The double-jeopardy claim, based on multiple punishments for the “same offense,” was meritless because under Oklahoma law the petitioner had been properly sentenced for two different offenses, albeit to concurrent terms.  The court denied a COA on the IAC claims because the petitioner did not allege facts which, if true, would entitle him to relief.  Finally, the court rejected the cruel and unusual punishment challenge to the sentence.

Anderlohr v. Mullen, No. 07-7076 (8/26/08) — The court denied a COA to appeal the denial of a 2241 petition.  The petitioner sought to challenge the revocation of parole by the Governor of Oklahoma, and subsequent amendment of sentence on the revocation from concurrent with to consecutive to the sentence on the underlying offense.  The district court had denied the petition as untimely.  The court reasoned that the petition was clearly untimely because the petitioner was not diligent in exhausting his administrative appeals relating to the Governor’s decision.

Rath v. Att’y Gen. of Colo., No. 08-1193 (8/26/08) — The court denied a COA in a 2254 case.  The district court properly denied an evidentiary hearing under 2254(e)(2).  The petitioner was not entitled to relief from defects in state post-conviction proceedings, and there was no fraud in the trial record.