107 F.3d 1465 (10th Cir. 1997), 96-1187, Houchin v. Zavaras

Docket Nº:96-1187.
Citation:107 F.3d 1465
Party Name:William C. HOUCHIN, Jr., Petitioner-Appellant, v. Aristedes W. ZAVARAS, Director, Colorado Department of Corrections, Respondent-Appellee.
Case Date:February 27, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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107 F.3d 1465 (10th Cir. 1997)

William C. HOUCHIN, Jr., Petitioner-Appellant,


Aristedes W. ZAVARAS, Director, Colorado Department of

Corrections, Respondent-Appellee.

No. 96-1187.

United States Court of Appeals, Tenth Circuit

February 27, 1997

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Jean E. Dubofsky of Jean E. Dubofsky, P.C., Boulder, CO, for Petitioner-Appellant.

Gale A. Norton, Attorney General, and Wendy J. Ritz, Assistant Attorney General, Denver, CO, for Respondent-Appellee.

Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Petitioner William C. Houchin, Jr. appeals from an order of the district court denying his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. See Houchin v. Zavaras, 919 F.Supp. 1480 (D.Colo.1996)

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(Houchin I ). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 1

I. Facts

In March 1984, Mr. Houchin was convicted of two counts of first-degree murder for killing his father- and mother-in-law, Mr. and Mrs. Naureth. He was sentenced to two consecutive life sentences without parole.

Mr. Houchin had been living in the basement apartment in the Naureths' home, located in Pueblo, Colorado, with his wife Linda, the Naureth's daughter. On the night before the murders, Linda informed Mr. Houchin that she wanted a divorce. Mr. Houchin left the Naureth home, but returned the next day when Linda and her mother were out. Mr. Naureth was working on his truck in the garage. Mr. Houchin went to the garage with his gun, where he apparently struggled with Mr. Naureth. Mr. Naureth was shot twice and Mr. Houchin was shot once in the arm. Mr. Houchin then went to the basement apartment, changed his shirt and bound his wound, picked up a rifle, returned to the garage, and again shot Mr. Naureth, this time in the head at close range.

Mr. Houchin then destroyed furnishings in the house and killed the family dog. When Linda and Mrs. Naureth returned home, Mr. Houchin was still in the house with a revolver and a rifle. Mrs. Naureth attempted to flee through the garage, as Linda attempted to restrain Mr. Houchin. Mr. Houchin shoved Linda against the wall and she ran out of the house and across the street for help. Mr. Houchin returned to the garage and fired two shots from his single-action revolver, one of which hit Mrs. Naureth. She died later at the hospital.

Mr. Houchin then left. The next morning, Mr. Houchin was found asleep on the seat of his pickup truck in LaVeta, Colorado, near his parents' home. He was bleeding from a gunshot wound to his left arm and one of the arresting officers noticed the odor of alcohol on his breath. He appeared unconscious while being transported to the hospital and, initially, at the hospital. He regained consciousness in a manner which caused the treating physician's assistant to state that he was unable to rule out malingering as a cause for Mr. Houchin's comatose state. Tests performed at the hospital that morning showed that Mr. Houchin had a blood alcohol level of .232 and a urine alcohol level of .359.

II. Procedural Background

The public defender's office initially represented Mr. Houchin. Later, Mr. Houchin's father retained as private counsel Thomas H. Heaton, a Massachusetts attorney whom the father had met in the course of a real estate transaction. Mr. Heaton secured local co-counsel, Terry Perlet.

Following his conviction, Mr. Houchin appealed. The Colorado Court of Appeals granted a limited remand to permit the district court to consider, under Colo. R.Crim. P. 35(c), Mr. Houchin's claim that he had received ineffective assistance of counsel in violation of the United States and Colorado Constitutions. The trial court determined that both counsel were ineffective in some respects but that their overall performance did not amount to constitutionally ineffective assistance. The Colorado Court of Appeals affirmed but determined that counsels' overall performance was below the level of reasonably competent assistance to which Mr. Houchin was constitutionally entitled. However, the court held that the outcome of the trial would not have differed had counsels' performance been competent. The Colorado Supreme Court denied certiorari.

Mr. Houchin thereafter filed this petition seeking habeas relief in federal district court. The district court determined that while Mr. Houchin had received representation which fell below an objective standard of reasonableness, he had failed to show a reasonable probability that, but for counsels' errors, his convictions would have differed. See Houchin I, 919 F.Supp. at 1496. The court thus denied habeas relief and Mr. Houchin filed this appeal.

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III. Certificate of Appealability

On April 26, 1996, Mr. Houchin filed a notice of appeal and requested a certificate of probable cause in the district court. The district court granted him a certificate of appealability. See Houchin v. Zavaras, 924 F.Supp. 115 (D.Colo.1996) (Houchin II ). We initially address whether the district court has the power vested in it by Congress to grant certificates of appealability.

On April 24, 1996, the President signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. The AEDPA eliminated the requirement that petitioners seeking review of state habeas petitions obtain a certificate of probable cause from either the district court judge who ruled on his petition or from a circuit judge in order to appeal. See 28 U.S.C. § 2253 (1995). The AEDPA substituted the requirement that petitioners seeking review of district court judgments in petitions filed pursuant to either 28 U.S.C. § 2254 or 28 U.S.C. § 2255 seek a certificate of appealability with its attendant standards prior to appealing.

The AEDPA contains conflicting statements regarding whether a petitioner may seek a certificate of appealability from the district court. The AEDPA, at 28 U.S.C. § 2253(c), provides that:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

The AEDPA also amended Fed. R.App. P. 22(b) so that it now states:

Certificate of appealability.--In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c).... If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge.... If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a State or its representative, a certificate of appealability is not required.

The internal inconsistencies between amended § 2253 and Rule 22 are readily apparent. The district court determined that it had authority to issue the certificate of appealability based on Rule 22. Houchin II, 924 F.Supp. at 117. The court noted that § 2253 did not state that "only" circuit justices and judges were authorized to issue the certificate, thus not expressly "prohibit[ing] district judges from exercising the authority vested in us by the Rule of Appellate Procedure." Id. We agree.

"In determining the scope of a statute, we look first to its language." United States v. Silvers, 84 F.3d 1317, 1321 (10th Cir.1996) (quotation omitted), cert. denied, --- U.S. ----, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997). Section 2253(c)(1) states that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals...." If the adjective "circuit" modifies both "justice" and "judge," then a district court judge may not issue a certificate of appealability. However, Rule 22(b) provides that "a district or a circuit

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judge" may issue the certificate of appealability in a § 2254 proceeding.

In reconciling this apparent conflict between the statute and the rule, we bear in mind that when construing a statute, the text of each provision should be read so as to give effect to all of the statute's provisions. See Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1273 (10th Cir.1994). If we were to determine that the adjective "circuit" necessarily modifies both "justice" and "judge," the effect would be to deny the district court judge the authority to issue a certificate of appealability, thus nullifying the language of the amended Rule 22(b). This we may not do.

A review of the history of proposals to amend the provisions for issuance of a certificate permitting appeals from collateral review shows that efforts to deny district judges the ability to issue such certificates have consistently failed. See Hunter v. United States, 101 F.3d 1565, 1577-83 (11th Cir.1996) (examining efforts by Congress to amend the procedure for obtaining certificates for appeal in light of Judge Henry...

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