Evans v. Horton

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 11, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARK EVANS,
Petitioner - Appellant,
v. No. 19-3023
(D.C. No. 5:18-CV-03240-JWL)
CAROLINE HORTON, Colonel, United (D. Kan.)
States Army Commandant, United States
Disciplinary Barracks,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, McKAY, and CARSON, Circuit Judges.
_________________________________
Mark Evans appeals the district court’s order dismissing his 28 U.S.C. § 2241
petition. For the reasons explained below, we affirm.
Background
A court-martial tried and convicted Evans of raping and assaulting a female
German citizen and of obstructing justice.1 The court-martial sentenced Evans to 20
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
The court-martial also convicted him of assaulting a male coworker. But it
acquitted him on charges that he attempted to sexually assault, and perpetrated
abusive sexual contact against, the same male coworker.
years’ confinement, reduced his grade to E-1, and ordered his dishonorable
discharge.
Evans appealed to the Air Force Court of Criminal Appeals, challenging the
sufficiency of the evidence and the severity of his sentence. The appellate court
affirmed the court-martial’s findings and sentence. See United States v. Evans, ACM
38651, 2015 WL 6657428, at *1 (A.F. Ct. Crim. App. Oct. 22, 2015) (unpublished).
Evans then sought review by the Court of Appeals for the Armed Forces, again
challenging the sufficiency of the evidence. That court declined review. See United
States v. Evans, 75 M.J. 288, 288 (C.A.A.F. 2016) (unpublished).
Evans then filed the § 2241 petition at issue here. He asserted that under
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the court-martial’s finding on
his rape charge was fundamentally flawed because it was based on an
unconstitutional instruction about propensity evidence. Specifically, Evans argued
that the court-martial’s propensity instruction unconstitutionally undermined the
presumption of innocence by allowing the factfinder to consider evidence of charged
conduct for propensity purposes—even if the factfinder did not find Evans guilty
beyond a reasonable doubt of that charged conduct. The government responded that
Evans could not raise the Hills issue as a basis for habeas relief because he failed to
raise it before the military courts and could not establish cause or prejudice to
overcome this procedural default.
The district court denied Evans’s petition, but in so doing, it did not address
the government’s arguments about waiver or cause and prejudice. Instead, the district
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court concluded that under Teague v. Lane, 489 U.S. 288 (1989), the rule set forth in
Hills did not apply retroactively to Evans’s case. Evans appeals.2 We review the
district court’s decision de novo. See Brace v. United States, 634 F.3d 1167, 1169
(10th Cir. 2011).
Analysis
In his habeas petition, Evans asserted the military judge provided an
unconstitutional instruction that allowed the factfinder to consider charged conduct—
as opposed to uncharged conduct—as propensity evidence for other charged crimes.
See Mil. R. Evid. 413 (“In a court-martial proceeding for a sexual offense, the
military judge may admit evidence that the accused committed any other sexual
offense. The evidence may be considered on any matter to which it is relevant.”);
Hills, 75 M.J. at 354 (holding that Military Rule of Evidence 413 “may not” be used
“as a mechanism for admitting evidence of charged conduct to which an accused has
pleaded not guilty in order to show a propensity to commit the very same charged
conduct”).
The government does not dispute that the instruction in Evans’s 2014 trial was
improper under Hills, which was decided in 2016. But it contends that Evans waived
2
Evans does not need a certificate of appealability. See Nixon v. Ledwith, 635
F. App’x 560, 561 n.1 (10th Cir. 2016) (unpublished) (holding that military prisoner
“does not need a certificate of appealability to appeal from the district court’s
decision” denying his § 2241 petition); Montez v. McKinna, 208 F.3d 862, 866–67
(10th Cir. 2000) (noting that “federal prisoner proceeding under § 2241 does not need
a certificate of appealability to appeal a district court’s denial of the petition”
(emphasis omitted)).
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his challenge to this jury instruction by failing to raise it before the military courts,
either at trial or on appeal. The government is correct that “if a ground for relief was
not raised in the military courts, then the [federal] court must deem that ground
waived.” Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir. 2003). And here, Evans
does not contest that he failed to challenge the jury instruction at trial or on appeal.
Thus, we conclude that Evans waived this argument. See id. As such, we will only
reach the merits of Evans’s jury-instruction argument if he can show both cause and
prejudice: cause for failing to raise this argument before the military courts and
actual prejudice resulting from the allegedly unconstitutional jury instruction. See id.
(“The only exception to the waiver rule is that a petitioner may obtain relief by
showing cause and actual prejudice.”).
Evans argues that we should find cause and excuse his failure to raise this
issue before the military courts because the law at the time of his trial was “settled”
such that raising the issue “would have been frivolous.” Aplt. Br. 23. In other words,
Evans insists that because Hills changed the law about this particular jury instruction,
we should excuse him for failing to challenge the instruction at trial or on appeal. But
“[c]hanges in law do not automatically constitute cause.” Daniels v. United States,
254 F.3d 1180, 1190 (10th Cir. 2001). Nor does futility. See Bousley v. United States,
523 U.S. 614, 622 (1998) (“[F]utility cannot constitute cause if it means simply that a
claim was ‘unacceptable to that particular court at that particular time.’” (quoting
Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982))). Instead, the question in this context
is whether “a constitutional claim is so novel that its legal basis [was] not reasonably
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available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). So even if we accept
Evans’s appellate arguments—by assuming both that (1) military law at the time of
Evans’s trial and appeal was settled and allowed this now-unconstitutional jury
instruction and (2) any challenge to the instruction would have failed—these
assumptions are not enough to automatically excuse his failure to challenge the jury
instruction in the military courts.
Nor can Evans meet Reed’s novel-claim standard.3 On the contrary, and as the
government points out, litigants in other cases taking place around the same time as
Evans’s 2014 trial and 2015 appeal raised this very argument. See, e.g., Hills, 75 M.J.
at 352 (noting that criminal acts occurred in 2012 and appeal to Army Court of
Criminal Appeals occurred in 2015; accepting argument that Rule 413 only allows
admission of evidence of uncharged conduct); United States v. Bass, 74 M.J. 806,
815 (N-M. Ct. Crim. App. 2015) (rejecting Rule 413 argument later accepted in
Hills). And “cause will not be found where the ‘basis of a constitutional claim is
available, and other defense counsel have perceived and litigated that claim.’”
Clanton v. Muncy, 845 F.2d 1238, 1242 (4th Cir. 1988) (quoting Engle, 456 U.S. at
134). Thus, Evans fails to show cause to excuse his failure to raise this issue before
the military courts.
3
Indeed, he arguably does not even attempt to meet this standard. He never
cites it, and in his reply brief, he simply doubles down on his position that
challenging the jury instruction at trial or on appeal would have been futile because
under military law at that time, the instruction was proper.
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And even if Evans could show cause, he would also be required to show actual
prejudice resulting from the court’s decision to give this instruction at his trial. See
United States v. Frady, 456 US. 152, 167 (1982). In the context of an instruction that
is later determined to be unconstitutional, the prejudice inquiry does not merely ask
“whether ‘the instruction is undesirable, erroneous, or even universally condemned.’”
Id. at 169 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). Rather, a court
must determine “whether the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process.” Id. (quoting Henderson, 431 U.S.
at 154).
Moreover, “[t]he burden of showing prejudice is not an easy one.” Daniels,
254 F.3d at 1191. “[I]t is not enough to assert that an error ‘might have changed the
outcome of the trial.’” Id. (emphasis added) (quoting Strickler v. Greene, 527 U.S.
263, 289 (1999)). Instead, Evans “must convince us that ‘there is a reasonable
probability’ that the result of the trial would have been different” in the absence of
the propensity instruction. Strickler, 527 U.S. at 289 (quoting Kyles v. Whitley, 514
U.S. 419, 433 (1995)).
Evans cannot make such a showing here, primarily because the other evidence
against him was overwhelming. Evans met the 16-year-old victim at an Oktoberfest
festival. Evans, 2015 WL 6657428, at *1. Near the end of the evening, Evans and the
victim went a little away from the festival tent. Id. at *1–2. The victim testified that
Evans kissed her and that she refused Evans’s further advances, knocked his hands
away from her, and told him to stop. Id. at *2. She said that when she cried out,
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Evans put his fingers in her mouth to keep her quiet; when she bit his fingers, he held
her mouth closed. Id. She further stated that she struggled against Evans and asked
him not to kill her. Id. She testified that Evans pulled her pants down, engaged in
sexual intercourse with her, and then got up and walked away. Id.
Critically, Evans’s own videotaped statement to military investigators largely
corroborated the victim’s version of events. Evans “admitted . . . that his
‘animalistic’ urges took over during the encounter, that he pulled [the victim] down,
that he was a ‘little bit too aggressive,’ and that [the victim] ‘wasn’t really into it.’”
Id. at *3. Further, Evans said that the victim “‘kind of screamed out’ and that he
probably put his hand over her mouth to keep her quiet.” Id. He “recalled [the victim]
telling him something to the effect of ‘don’t hurt me’ while he was penetrating her.”
Id. Evans “conceded . . . that he believed [the victim] did not want to have sexual
intercourse with him . . . but said he decided to continue anyway.” Id. Finally, Evans
“confided to investigators that his first thought after the incident was that he had just
raped her.” Id.
The prosecution, for its part, highlighted these incriminating statements in its
closing statement—it did not focus on propensity evidence or on the Hills instruction.
In fact, only six lines of its 48-page closing argument mention the Hills instruction or
refer to propensity evidence.
Thus, in light of the overwhelming evidence against Evans, along with the
prosecution’s lack of focus on propensity, there is no reasonable probability that the
factfinder would have reached a different result in the absence of the improper
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instruction.4 See Frady, 456 U.S. at 169. Accordingly, Evans fails to show any
prejudice flowing from the alleged constitutional violation.
Conclusion
Because Evans cannot establish cause or prejudice to overcome the waiver of
the jury-instruction challenge in his habeas petition, we affirm the district court’s
order denying that petition. See Brimeyer v. Nelson, 712 F. App’x 732, 737 & n.2
(10th Cir. 2017) (unpublished) (affirming district court’s denial of claim in § 2241
petition on alternative grounds because record was “sufficient to perform our de novo
analysis”); cf. Nixon, 635 F. App’x at 564 (agreeing “with the district court’s result,
but not its reasoning,” and affirming order denying habeas relief on alternative
waiver grounds).
Entered for the Court
Nancy L. Moritz
Circuit Judge
4
Evans fails to make an express prejudice argument on appeal. But elsewhere
in his brief, he suggests that the evidence against him was not overwhelming. Yet in
so doing, he ignores the impact of his own incriminating statements. We therefore
find his argument unconvincing.
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