Wood v. Hargett ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    AUG 3 2001
    UNITED STATES COURT OF APPEALS
    FOR THE TENTH CIRCUIT                     PATRICK FISHER
    Clerk
    CECIL EDWARD WOOD,
    Petitioner-Appellant,
    v.                                                   No. 99-6283
    (D.C. No. 97-CV-754)
    STEVE HARGETT,                                       (W.D. Okla.)
    Respondent-Appellee.
    ORDER AND JUDGMENT            *
    Before EBEL , PORFILIO , and KELLY , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Petitioner Cecil Edward Wood appeals from the district court’s denial of his
    petition for a writ of habeas corpus filed pursuant to 
    28 U.S.C. § 2254
    . The
    district court did not hold an evidentiary hearing, so our review of its decision is
    de novo. See Miller v. Champion , 
    161 F.3d 1249
    , 1254 (10th Cir.1998). We
    conclude that petitioner has raised a substantial claim that his trial counsel
    provided constitutionally ineffective assistance by failing to challenge the number
    of prior convictions the jury could consider in imposing his sentence. We
    therefore remand the case for an evidentiary hearing on this issue.
    Petitioner was convicted in Oklahoma state court in 1992 of second degree
    burglary after former conviction of two or more felonies. He was sentenced to
    fifty years in prison. His conviction and sentence were affirmed on appeal, and his
    request for post-conviction relief in state court was denied. In May 1997, he filed
    this habeas petition challenging his conviction and sentence on a variety of
    grounds. Adopting the magistrate judge’s report and recommendation, the district
    court determined that petitioner had not stated any valid bases for relief and denied
    the petition.
    Petitioner filed a request for a certificate of appealability pursuant to
    
    28 U.S.C. § 2253
    (c) on many of the issues he raised in the district court. We
    granted his request on the following two specific issues: (1) whether trial counsel
    provided constitutionally ineffective assistance by failing to challenge, as related
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    under Okla. Stat. tit. 21, § 51B, the three convictions listed under case number
    CR-281-391F from McDonald County, Missouri, on the second page of the
    information filed against petitioner; and (2) whether appellate counsel provided
    constitutionally ineffective assistance by failing to raise on direct appeal the issue
    of alleged trial counsel ineffectiveness described above.   1
    Respondent contends
    that petitioner has waived the latter issue by failing to raise it in the district court.
    He further contends that the district court correctly rejected the first issue on the
    merits. Because we resolve the appeal on the basis of trial counsel’s performance,
    we need not address whether petitioner has waived the latter issue regarding
    appellate counsel’s performance.
    To establish constitutionally ineffective assistance of counsel, petitioner
    must demonstrate that his counsel’s performance fell below an objective standard
    of reasonableness and that counsel’s substandard performance prejudiced his
    defense. Strickland v. Washington , 
    466 U.S. 668
    , 687, 688 (1984). To meet the
    1
    Petitioner also requested a certificate of appealability on the following
    issues: (1) other types of ineffective assistance by trial and appellate counsel;
    (2) insufficient evidence to support his conviction; (3) improper introduction of
    other crimes evidence; (4) impermissibly suggestive pretrial photo lineup; and
    (5) prosecutorial misconduct. The district court held that the second and fifth
    issues were procedurally barred, and that the remaining issues lacked merit. We
    have considered petitioner’s arguments and reviewed the record, and conclude
    that for these issues, petitioner has not made a substantial showing of the denial
    of a constitutional right.  See § 2253(c). His request for a certificate of
    appealablity for these issues is denied.
    -3-
    first prong, petitioner must demonstrate that the omissions of his counsel fell
    “outside the wide range of professionally competent assistance.”         Id. at 690.
    Strategic or tactical decisions on the part of counsel are presumed correct,      id. at
    689, unless they were “completely unreasonable, not merely wrong, so that [they]
    bear no relationship to a possible defense strategy,”     Fox v. Ward , 
    200 F.3d 1286
    ,
    1296 (10th Cir. 2000) (quotation and citations omitted). To prevail on the second,
    prejudice prong, petitioner “must show that there is a reasonable probability that,
    but for his counsel’s unprofessional errors, the result of the proceeding would have
    been different.”   Strickland , 
    466 U.S. at 694
    .   2
    As noted above, petitioner was charged with second degree burglary after
    former conviction of two or more felonies. The second page of the information
    2
    Petitioner first raised his ineffective trial counsel claim in his application
    for post-conviction relief. The state court rejected it on the merits and on the
    basis of procedural bar, since petitioner did not raise it on direct appeal. On
    appeal from the denial of post-conviction relief, the Oklahoma Court of Criminal
    Appeals rejected this claim only on procedural bar grounds. Respondent has not
    raised a procedural bar defense to this claim in federal court. We therefore
    consider it waived. See Hatch v. Oklahoma , 
    58 F.3d 1447
    , 1453 (10th Cir. 1995).
    We also note that respondent does not contend that we owe the state court
    decision rejecting this ineffective counsel claim any deference under 
    28 U.S.C. § 2254
    (d). Cf. Liegakos v. Cooke , 
    106 F.3d 1381
    , 1385 (7th Cir. 1997) (declining
    to apply § 2254(d) deference to state trial court merits decision where state
    appellate court resolved issues on procedural grounds, rather than on merits).
    Even assuming we might owe the state court’s merits decision deference in such
    circumstances, we would find the issue waived by respondent’s failure to raise it.
    Emerson v. Gramley , 
    91 F.3d 898
    , 900 (7th Cir. 1996).
    -4-
    that charged him with the prior convictions listed five separate convictions. Three
    of the convictions, which were from a McDonald County, Missouri court, have the
    same date and case number (CR-281-393F). At the second or sentencing stage of
    petitioner’s trial, the prosecutor read to the jury the second page of the information
    and presented certified copies of the judgments for the five prior convictions. The
    court instructed the jury that second degree burglary after former conviction of
    two or more felonies is punishable by a term of imprisonment not less than twenty
    years. The prosecutor asked for a sentence of forty years. The jury gave petitioner
    fifty.
    As the jury was instructed, 
    Okla. Stat. tit. 21, § 51
    (B) provides that
    punishment for a felony conviction following two or more prior felony convictions
    within the previous ten years shall be a prison term of at least twenty years.
    Addressing what prior convictions may be used in this sentence enhancement
    scheme, § 51(B) further states that “[f]elony offenses relied upon shall not have
    arisen out of the same transaction or occurrence or series of events closely related
    in time and location.”    Id. 51(B). Related convictions are thus counted as only
    one prior conviction.    See, e.g. , Hammer v. State , 
    671 P.2d 677
    , 678 (Okla. Crim.
    App. 1983) (“[I]f multiple convictions result [from a single criminal episode],
    under Section 51(B), only one may be used to enhance punishment.”).
    -5-
    Petitioner contends that the three Missouri convictions with the same date
    and case number are related and that counting them as one, the information, and
    correspondingly, the evidence presented to the jury should have identified only
    three prior convictions instead of five. He further maintains that his trial counsel
    was ineffective for failing to challenge the use of the related convictions for
    enhancement purposes.
    In the magistrate’s judge’s report and recommendation, which was adopted
    by the district court, the magistrate judge rejected petitioner’s related-convictions
    argument, stating:
    [T]he defendant bears the burden of proving that the prior convictions
    arose out of the same transaction. The mere fact that the charges are
    similar, that pleas to the crimes were entered on the same day or that
    the case numbers are consecutive is not sufficient proof that the
    convictions were related. Here, Petitioner offers nothing but bald
    allegations and the fact that the convictions share the same case
    number to support his claim that the convictions arose out of the same
    transaction. The Judgment of Conviction in CR-281-393F reveals that
    at least one charge involved a different victim. Petitioner has failed
    to show that his convictions in CR-281-393F arose out of the same
    transaction . . . .
    R., Doc. 31 at 12 (citations and quotation omitted). Because she concluded
    petitioner had not demonstrated that any of the prior convictions were
    inadmissible, the magistrate judge determined that his counsel was not ineffective
    for failing to pursue this possible defense.
    -6-
    Petitioner, however, had more than bald allegations and identical case
    numbers and dates. The three convictions he contends are related were for
    stealing, burglary and assault. The judgment for these convictions shows that all
    three crimes occurred on the same day, that the stealing count involved Jerry
    Hart’s property, and that the burglary count involved entering Jerry Hart’s
    residence with the intent to steal. Additionally, in a verified document, he alleged
    that the third count was for an assault on a law enforcement officer during his
    escape from the burglary.
    The Oklahoma Court of Criminal Appeals addressed a somewhat analogous
    situation in Miller v. State , 
    675 P.2d 453
     (Okla. Crim. App. 1984). The defendant
    testified that three of his convictions resulted from one event, and the court found
    that the “copies of the judgments and sentences introduced by the State tended to
    substantiate his testimony.”   
    Id. at 455
    . The only evidence of this substantiation
    the court cited was that
    [t]he convictions were for Assault and Battery With a Dangerous
    Weapon, Assault and Battery With a Deadly Weapon With Intent to
    Kill, and Larceny of an Automobile. The appellant testified that the
    charges arose from an attempted repossession of a car he had bought.
    A fight ensued, which resulted in the appellant wounding two men
    with a knife.
    Id. n.1. The court found this evidence sufficient to show that the three convictions
    were related under § 51(B) and should have counted as only one.     Id. at 455.
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    Similarly, in Hammer , the court found weapons and kidnapping charges to be
    related:
    At trial the appellant admitted having convictions for Pointing a
    Weapon at Another, AFCF, and Kidnapping, AFCF. His testimony
    also established that those convictions were the result of a single
    incident.
    The convictions were the result of an incident that occurred at
    Baptist Hospital in Oklahoma City in January, 1978. The
    informations were consecutively numbered, tried together, and the
    sentences on each conviction were to run concurrently.
    ....
    We hold that the convictions in question because of their
    relation to each other in time and location arose out of the same
    criminal transaction. The State therefore, improperly relied upon the
    appellant’s two prior felony convictions for enhancement purposes
    under Section 51(B). This error requires modification of his
    sentence.
    Hammer , 
    671 P.2d at 678
    .   See also Cardenas v. State , 
    695 P.2d 876
    , 878 (Okla.
    Crim. App. 1985) (finding it “inescapable” that offenses that “occurred on the
    same day, and at the same location” should be counted as only one prior conviction
    under § 51(B)).
    We conclude that, under the guidance of these cases, petitioner has made an
    adequate showing that his three convictions were related. The burglary and
    stealing convictions appear to be intricately related, and the assault conviction
    appears to be part of an almost continuous incident. Moreover, most of the
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    relevant facts are apparent from the face of the judgment the state produced to
    prove the convictions. We cannot think of any tactical reason why petitioner’s
    trial counsel would not have investigated this matter and pursued this possible
    sentencing defense.
    Respondent argues, without citing any authority, that even assuming that
    these three convictions should be counted as only one, petitioner cannot show
    prejudice because he still would have three valid prior convictions to support his
    enhanced sentence.   3
    Under Oklahoma law, however, sentencing decisions are left
    to the jury’s discretion, and the number of prior convictions presented to the jury
    may well affect the jury’s discretion. We think that particularly true where, as
    here, the prosecutor emphasized and, in fact, solely relied on the number of prior
    3
    We note that in her report, the magistrate judge stated that even had
    petitioner shown the three Missouri convictions should be counted as one, he
    would not have prevailed on appeal because he still had more than the two prior
    convictions necessary for an enhanced sentence under § 51(B). The magistrate
    judge cited Pekah v. State , 
    660 P.2d 652
    , 654 (Okla. Crim. App. 1983), in which
    the court held that, even assuming two prior convictions were improperly
    admitted for enhancement purposes, the defendant’s sentence under § 51(B) was
    valid because there were still three other prior convictions. The magistrate judge
    discussed this issue in the context of a claim of ineffective appellate counsel for
    failing to raise a related-convictions argument on appeal. Were we addressing
    appellate counsel’s performance, we might agree with her analysis, since the
    argument would not be a “dead-bang winner.”       See United States v. Cook , 
    45 F.3d 388
    , 395 (10th Cir. 1995). However, we do not find     Pekah relevant to trial
    counsel’s performance because, as discussed above, sentencing is a jury issue.
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    convictions in seeking a harsh sentence for petitioner.      4
    The Oklahoma Court of
    Criminal Appeals reached a similar conclusion in          Miller . In that case, the court
    found that two of the four prior convictions the prosecution relied on were
    4
    After reminding the jury of petitioner’s five prior convictions and sentences
    in his closing, the prosecutor argued as follows:
    This defendant is before the Court not for the first time. He’s
    not before the Court on his second chance. Not the third time, or the
    fourth time. He’s here after having been convicted at least six times.
    How do you deal with that kind of repeat offender? What do
    you do? Obviously any effort to rehabilitate that offender has been
    offered to him in the past in the criminal justice system, or in the
    probation that’s in those records.
    And it was obviously a waste of time.
    What do you do with a defendant like this? You take him off
    the street, because that’s the only thing we can do with him. Because
    the only thing we can do with him is remove him from a free society
    so that he won’t have more victims, so he won’t steal from more
    people.
    ....
    And the longer he is gone the better off we all are. And my
    suggestion to you, Ladies and Gentlemen, as the law says the
    minimum is twenty years. That’s with two convictions.
    I would say that twice that amount, knowing what we know
    today about punishments, twice that amount is a very reasonable
    request. Because at least we know if we give him forty years he
    won’t be around here for a little while.
    Trial Tr., Vol. II at 54, 58. As noted earlier, the jury gave petitioner a fifty-year
    sentence.
    -10-
    improper for enhancement purposes under § 51(B), and it held the error was not
    harmless. “The prosecutor based his argument for a long prison term solely on the
    number of prior convictions. . . . We find the resulting prejudice to the appellant
    reflected in the fifty year sentence imposed, and modify it to twenty years’
    imprisonment.”   Miller , 
    675 P.2d at 455-56
    .
    “A deprivation of an opportunity to have a sentencing court exercise its
    discretion in a defendant’s favor can constitute ineffective assistance of counsel.”
    United States v. Castro , 
    26 F.3d 557
    , 560 (5th Cir. 1994) (quoted in    United States
    v. Harfst , 
    168 F.3d 398
    , 404 (10th Cir. 1999)). Petitioner has presented evidence
    that his counsel was ineffective for failing to challenge prior convictions used to
    enhance his sentence. We thus conclude that, assuming the facts are as petitioner
    contends and the Missouri convictions should have been counted as only one,
    petitioner has demonstrated a reasonable probability that but for counsel’s error,
    the result of the sentencing proceeding would have been different. We cannot say
    conclusively on the record before us that counsel was constitutionally ineffective;
    an evidentiary hearing is necessary for that determination.
    We therefore REVERSE that part of the district court’s order dismissing
    petitioner’s claim of ineffective assistance of trial counsel as it relates to the use
    of prior convictions to enhance his sentence, and REMAND the case to the district
    court for an evidentiary hearing and further proceedings consistent with this order
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    and judgment. Petitioner’s request for a certificate of appealability is DENIED
    with respect to all issues on which his request was not previously granted.
    Petitioner’s request to proceed in forma pauperis on appeal is GRANTED.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
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