Young v. Wyoming Department of Corrections Medium Correctional Institution Warden

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KURT YOUNG,
Petitioner - Appellant,
v. No. 16-8089
(D.C. No. 2:15-CV-00016-SWS)
WYOMING DEPARTMENT OF (D. Wyo.)
CORRECTIONS MEDIUM
CORRECTIONAL INSTITUTION
WARDEN, Steve Donald Hargett;
WYOMING ATTORNEY GENERAL,
Peter K. Michael,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.
_________________________________
Kurt Young, a Wyoming state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his application for relief
under 28 U.S.C. § 2254. We deny the request for a COA and dismiss the appeal.
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
In 2013 Mr. Young was charged on one felony count of delivery of
methamphetamine, and four misdemeanor counts of possession of marijuana,
methamphetamine, heroin, and MDMA. Under a plea agreement he pleaded guilty to
the felony count and the misdemeanor marijuana and methamphetamine counts; the
other charges were dismissed. At his change-of-plea hearing he admitted that he had
injected another person with methamphetamine while she was overdosing on heroin
(purportedly attempting to counteract the heroin’s effect), and that he had possessed
methamphetamine and marijuana at that time. The court sentenced him to a prison
term of 12 to 18 years on the felony count, plus concurrent 12-month prison
sentences on the other two counts.
After Mr. Young filed a notice of appeal, his appellate counsel moved to
withdraw and filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967).
The Wyoming Supreme Court initially denied the motion to withdraw because
counsel had failed to provide a complete record with respect to possible irregularities
with search warrants that concerned Mr. Young. After counsel supplemented the
record on appeal with the missing documents and filed a renewed motion to withdraw
and a revised Anders brief, in which he asserted that there were no meritorious,
arguable issues for appeal, the court granted the motion to withdraw and allowed Mr.
Young to file a pro se appeal brief. His brief raised four claims:
1. His appellate counsel provided ineffective assistance in filing an Anders
brief;
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2. trial counsel provided ineffective assistance by failing to investigate
possible defenses;
3. trial counsel provided ineffective assistance by inducing him to plead
guilty with a promise that he would receive a sentence of probation; and
4. the prosecutor had a conflict of interest because of his previous
representation of Mr. Young in another matter.
After reviewing the brief the Wyoming Supreme Court affirmed the conviction and
sentence.
Mr. Young then filed a § 2254 application asserting the same four claims
raised in his state court pro se appeal brief. The district court dismissed part of the
application because Mr. Young had waived certain claims by pleading guilty and
then granted Respondents summary judgment on the remaining claims. Applying the
deferential review mandated by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d)(1)-(2), the district court held that the Wyoming
Supreme Court’s rulings on Mr. Young’s claims did not unreasonably apply clearly
established federal law, nor were they based on an unreasonable determination of the
facts.
II. Discussion
A. Standards of Review
To obtain a COA, Mr. Young must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). In deciding whether to issue a
COA, we limit our examination to “a threshold inquiry into the underlying merit of
[the applicant’s] claims.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Our
standard of review depends on whether the district court decided a claim on the
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merits or dismissed it on procedural grounds. See Slack v. McDaniel, 529 U.S. 473,
484 (2000). The district court denied some of Mr. Young’s claims on the merits. To
obtain a COA as to those claims he “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.”
Id. The district court dismissed other claims on procedural grounds. As to those
claims, he must show that jurists of reason would find it debatable (1) “whether the
petition states a valid claim of the denial of a constitutional right” and (2) “whether
the district court was correct in its procedural ruling.” Id. Because Mr. Young
proceeds pro se, we liberally construe his application for a COA. See Hall v. Scott,
292 F.3d 1264, 1266 (10th Cir. 2002).
B. Waived Claims
The district court held that Mr. Young waived his right to assert some of his
habeas claims by pleading guilty. The court relied on Tollett v. Henderson, 411 U.S.
258 (1973), in which the Supreme Court held:
When a criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea by showing that the
advice he received from counsel was not within [the range of competence
demanded of attorneys in criminal cases].
Id. at 267. The district court reasoned that under Tollett, Mr. Young waived his
claims (1) that the prosecutor had a conflict of interest and (2) that his trial counsel
was ineffective in failing to investigate possible defenses, except insofar as that
failure made his plea unintelligent or involuntary. In his application in this court for
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a COA, Mr. Young does not challenge the district court’s holding that he waived
these claims by pleading guilty. He therefore fails to demonstrate that reasonable
jurists would debate the correctness of the district court’s procedural ruling. We
deny a COA on these issues.
C. Voluntary and Intelligent Guilty Plea
“In the guilty plea context, to establish a claim for ineffective assistance of
counsel, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness and that, but for counsel’s error, the defendant would
have insisted upon going to trial.” United States v. Silva, 430 F.3d 1096, 1099
(10th Cir. 2005). The district court addressed on the merits Mr. Young’s claim that
his trial counsel’s performance was so constitutionally defective as to render his
guilty plea invalid.1 Mr. Young contended his trial counsel refused to investigate
possible defenses and then induced him to plead guilty by promising he would not be
sentenced to prison.
Regarding possible defenses, the district court concluded that Mr. Young
failed to explain or offer any evidence how an investigation of the facts and sources
of information recited in his habeas application had a genuine possibility of
1
The district court concluded that the Wyoming Supreme Court had decided
on the merits both this claim and Mr. Young’s claim that his appellate counsel
provided ineffective assistance. See Harrington v. Richter, 562 U.S. 86, 99-100
(2011) (“When a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary.”). Mr. Young does not dispute the district court’s conclusion.
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exonerating him. The court held that he had not rebutted the strong presumption that
his counsel’s actions fell within the wide range of reasonable professional assistance
and could be considered sound trial strategy. It also noted that the plea agreement
negotiated by Mr. Young’s counsel required dismissal of two of the five counts and
secured an agreement that he would not face federal prosecution for the same
underlying conduct. Mr. Young’s arguments on this issue in his § 2254 application
and in his application for a COA are nearly verbatim. For the reasons articulated by
the district court, he still fails to demonstrate that his counsel’s failure to pursue
certain defenses constituted deficient performance affecting the validity of his guilty
plea.
As to his counsel’s alleged promise of a probation sentence that Mr. Young
says induced him to plead guilty, the district court reviewed the record of his
change-of-plea hearing, noting he had expressly acknowledged that he could be
sentenced to 22 years in prison. The court quoted the following colloquy during the
hearing:
THE COURT: Now, you understand, Mr. Young, that the
agreement here does not include a sentencing recommendation. Even if it
did, it wouldn’t be binding on this Court, right?
THE DEFENDANT: Yes, sir.
THE COURT: And I understand you’re going to apply to the Drug
Court and that’s fine, but you need to understand that even if you’re
accepted in the Drug Court Program, I may not go along with that, and I
may, in fact, order you to serve 22 years of incarceration and pay fines of
up to . . . $27,000? Do you understand that?
THE DEFENDANT: Yes, Your Honor.
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THE COURT: And you need to understand as well, Mr. Young, that
whatever happens at sentencing, I will not permit you to withdraw a guilty
plea if you’re unhappy with the way things work out, right?
THE DEFENDANT: Yes. I realize that, Your Honor.
THE COURT: So two things. Number one, any recommendations
here will certainly be given due consideration, but at the end of the day,
there’s no guarantee as far as sentence is concerned. And number two,
whatever does happen, you are stuck with it. Do you understand all that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Questions about any of that?
THE DEFENDANT: No, sir.
THE COURT: Having said all that, do you want to go ahead with
this agreement?
THE DEFENDANT: Yes, Your Honor.
R., Vol. 1 at 62-63; see also id. at 55 (advising Mr. Young of the maximum prison
sentences for each offense); id. at 58 (noting he could face the penalties previously
reviewed).
Mr. Young asserts (as he did in the district court) that neither the trial court’s
admonitions regarding a possible prison sentence, nor his verbal acknowledgement of
those warnings, cured the prejudice of his counsel’s promise regarding a probation
sentence. This is so, he says, because his counsel advised him
that during the change of plea hearing the judge would inform him in open
court of all of the possible consequences of his plea and of the possibility of
Petitioner being sentenced to prison. Petitioner was told by [his counsel]
that in order for the plea agreement to be accepted by the court and in order
for Petitioner to receive probation that he had to acknowledge to the judge
that prison was a possibility. [Mr. Young’s counsel] stated that Petitioner’s
acknowledgement to the judge was a simple formality, that the judge’s
statements were not to be construed by Petitioner that he could go to prison,
and that Petitioner should not consider that prison may be a possible
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sentence – but only that the judge was required by law to recite all possible
consequences of a crime.
COA Appl. at 10.
But the district court questioned Mr. Young’s assertions regarding his
counsel’s sentencing advice, noting that they were contradictory. On the one hand,
he claimed that “his trial counsel unqualifiedly told him there was ‘no way that any
court would sentence him to prison.’” R., Vol. 1 at 331 n.2 (quoting R., Vol. 1 at
14). In the next sentence, however, Mr. Young stated that his counsel advised that
“‘based on his experience, it was extremely rare for a first-time, non-violent felon to
be sentenced to prison.’” Id. And the district court found that during the
change-of-plea hearing, Mr. Young “clearly stated he had not been induced to plead
guilty.” R., Vol. 1 at 327. When the trial court asked him, “Have any promises been
made concerning sentencing or anything else, other than what you’ve discussed in
your plea agreement?,” Mr. Young responded, “No, sir.” Id. at 60-61. He does not
contend that his counsel told him to lie in response to this (or any other) inquiry or
that his response to it was simply a formality. Nor does he claim that his counsel told
him that the judge had promised or otherwise agreed to a sentence of probation.
Based on Mr. Young’s statements during the change-of-plea hearing, the trial
court concluded that his plea was knowing, voluntary, made after consultation with
his counsel, and “without any improper inducement or conditions.” R., Vol. 1 at 71.
The Wyoming Supreme court rejected his challenge to the validity of his guilty plea,
and the district court held that the state court did not unreasonably apply clearly
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established federal law or unreasonably determine the facts of his case. Because Mr.
Young has not shown that reasonable jurists would consider the district court’s ruling
debatable or wrong, we deny a COA on this issue.
D. Ineffective Assistance of Appellate Counsel
The district court also addressed on the merits Mr. Young’s claim that his
appellate counsel provided ineffective assistance by filing an Anders brief. The court
held that the Wyoming Supreme Court’s ruling on this claim did not unreasonably
apply clearly established law, nor did it unreasonably determine the facts of Mr.
Young’s case. Rather, the district court concluded that the state court and Mr.
Young’s counsel both adhered to the requirements of Anders, and in doing so,
provided Mr. Young with “all the procedural protection that the Constitution
requires.” Smith v. Robbins, 528 U.S. 259, 287 (2000). Mr. Young was therefore
obliged to overcome the presumption “that the result of the proceedings on appeal is
reliable.” Id. The district court held that he failed to demonstrate any deficiency in
his appellate counsel’s representation.
Mr. Young first argues that his appellate counsel provided ineffective
assistance by presenting only one issue—the validity of the search warrant—in the
Anders brief. But the Anders brief was not so limited; it noted other claims that
Mr. Young wished to assert, including challenges to the validity of his guilty plea,
the length of his sentence, and the prosecutor’s alleged conflict of interest. Counsel
then addressed the effect of Mr. Young’s guilty plea on his ability to assert his claims
on appeal, the validity of his guilty plea based on the record, his trial counsel’s
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performance, the validity of his sentence, and the validity of the search warrant.
Although Mr. Young asserts that his appellate counsel did not fairly and adequately
present his appeal issues, he fails to demonstrate that “counsel unreasonably failed to
discover nonfrivolous issues and to file a merits brief raising them.” Smith, 528 U.S.
at 285.
Mr. Young also contends that the Wyoming Supreme Court erred by
permitting his appellate counsel to file a second Anders brief, contrary to McCoy v.
Court of Appeals of Wisconsin, 486 U.S. 429 (1988). In McCoy the Court stated that
“if the court concludes that there are nonfrivolous issues to be raised, it must appoint
counsel to pursue the appeal and direct that counsel to prepare an advocate’s brief
before deciding the merits.” Id. at 444. But the Wyoming Supreme Court did not
conclude from the first Anders brief that Mr. Young had nonfrivolous appeal issues.
It decided only that counsel failed to provide a complete record and demonstrate that
he had “discharged his duty to fully review the trial proceedings and show that the
captioned appeal is frivolous.” R., Vol. 1 at 118. Mr. Young’s appellate counsel
corrected these deficiencies by supplementing the record and filing a new Anders
brief that addressed the validity of the search warrant.
The Wyoming Supreme Court rejected Mr. Young’s contention that his
appellate counsel provided ineffective assistance. Applying deferential review under
AEDPA, the district court denied habeas relief. We deny a COA because Mr. Young
has not shown that the district court’s disposition of this claim is debatable by
reasonable jurists.
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III. Conclusion
We deny Mr. Young’s application for a COA and dismiss the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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