Steele v. Young, 93-7004

• Decision Date: 08 December 1993
• Docket Number: No. 93-7004,93-7004
• Citation: 11 F.3d 1518
• Parties: James Ray STEELE, Petitioner-Appellant, v. Leroy YOUNG, Warden; Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1518

11 F.3d 1518

James Ray STEELE, Petitioner-Appellant, v. Leroy YOUNG, Warden; Attorney General of the State of

Oklahoma, Respondents-Appellees.

No. 93-7004.

United States Court of Appeals, Tenth Circuit.

Dec. 8, 1993.

SUBMITTED ON THE BRIEFS. ^*

James Ray Steele, pro se.

Susan Brimer Loving, Atty. Gen., and Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, OK, for appellees.

Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

James Ray Steele appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Steele contends that his multiple convictions and consecutive sentences from an Oklahoma state court violate the Double Jeopardy Clause of the Fifth Amendment as incorporated into the Fourteenth Amendment; that the Oklahoma post-conviction procedures deprived him of due process; and that the federal district court erred in denying his Sec. 2254 petition without granting him an evidentiary hearing. ¹ We affirm.

BACKGROUND

Steele took part in a fight and shooting at a tavern near Calera, Oklahoma, on September 4, 1982. ² During the incident, Steele brandished a pocket knife with the blade opened. He was then struck in the head by a pool cue. Steele then left the bar, retrieved a shotgun from his truck, and began shooting toward the tavern. The bartender, who had stepped outside the tavern with a handgun and fired at least once, was shot and later died. Steele then fired his shotgun an indefinite number of times into the tavern through an open window, wounding several patrons.

Steele was tried and convicted in 1983 by an Oklahoma jury of the following crimes: (1) murder in the second degree; (2) assault and battery with a deadly weapon with intent to kill, in violation of Okla.Stat.Ann. tit. 21, Sec. 652; and (3) assault and battery with a dangerous weapon, in violation of Okla.Stat.Ann. tit. 21, Sec. 645. He was sentenced to consecutive prison terms of life, 20 years, and 10 years, respectively, and is currently in an Oklahoma state prison serving the balance of his time. ³

Steele appealed his conviction to the Oklahoma Court of Criminal Appeals. On his direct appeal, he alleged the following errors: (1) The State failed to prove the crimes charged beyond a reasonable doubt; (2) the prosecutor misstated the law and misled the jury in closing argument; and (3) the sentences imposed were excessive. The Oklahoma Court of Criminal Appeals affirmed the conviction on May 19, 1986.

On February 22, 1991, Steele filed an application for post-conviction relief with an Oklahoma district court, raising double jeopardy issues for the first time. His application was summarily dismissed by the district court on the grounds that "[t]he matters raised [in his application] could have been raised on direct appeal and there is no showing as to why they were not...." The Oklahoma Court of Criminal Appeals affirmed, stating:

Petitioner has not shown that he is entitled to any relief in a post-conviction proceeding. The issues he now raises either were or could have been raised in his direct appeal and he has not stated any reasons for not asserting or for inadequately raising said issues. 22 O.S.1981, Sec. 1086; Maines v. State, 597 P.2d 774 (Okla.Cr.1979).

The court of appeals did not discuss the merits of the double jeopardy allegations.

Steele subsequently filed this federal petition, pro se, for a writ of habeas corpus. The magistrate judge recommended denying Steele's petition, finding his due process claim meritless and his double jeopardy contentions procedurally barred. The district court adopted the magistrate judge's recommendations and issued an order denying the petition. After Steele unsuccessfully moved for reconsideration of the district court's judgment under Federal Rule of Civil Procedure 59(e), he brought this appeal.

DISCUSSION

I.

Steele's primary contention is that he was subjected to double jeopardy both by his multiple-count conviction and by his consecutive prison sentences. The district court dismissed this issue on the grounds of procedural bar without reaching the merits. We agree that the issue is barred.

On habeas review, we do not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless cause and prejudice or a fundamental miscarriage of justice is shown. Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Shafer v. Stratton, 906 F.2d 506, 509-10 (10th Cir.), cert. denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 402 (1990). ⁴ The procedural bar applied to Steele's double jeopardy claim in state court was clearly an "independent" state ground as it was the exclusive basis for the state court's holding, quoted above. See Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985); Andrews v. Deland, 943 F.2d 1162, 1188 n. 40 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992).

The question of whether the state procedural bar was "adequate" to support the decision is generally more difficult. We have found state procedural bar rules inadequate to preclude federal review where the state court has not applied the bar "strictly or regularly" to the type of claim at issue. See Gutierrez v. Moriarty, 922 F.2d 1464, 1469-71 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991); Coleman v. Saffle, 869 F.2d 1377, 1383 (10th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990). Oklahoma courts, however, have not inconsistently applied the procedural bar of Okla.Stat.Ann. tit. 22, Sec. 1086 to untimely double jeopardy claims. Furthermore, it has been stated clearly that section 1086 "strictly" prohibits raising issues that could have been raised before, even issues involving fundamental, constitutional rights. ⁵ See Johnson v. State, 823 P.2d 370, 372 (Okla.Crim.App.1991) (post-conviction relief "strictly limited" to those claims which could not have been raised on direct appeal, and claims for which the factual bases were available in an earlier proceeding are procedurally barred); see also Jones v. State, 704 P.2d 1138, 1140 (Okla.Crim.App.1985) (rejecting argument that constitutional issues are not subject to section 1086 default). ⁶ Thus, the Oklahoma Court of Criminal Appeals' holding rested on an adequate, as well as independent, state ground.

Steele has shown neither cause for his state default nor a fundamental miscarriage of justice. "Cause" must be "something external to the petitioner, something that cannot fairly be attributed to him...." Coleman v. Thompson, --- U.S. at ----, 111 S.Ct. at 2566; Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986). Steele's status as a pro se petitioner and his deficiencies in reading and writing skills are not external factors that prevented Steele or his counsel from raising the double jeopardy issue on direct appeal. Thus, they do not constitute "cause" for the default. ⁷ See Rodriguez v. Maynard, 948 F.2d 684, 687-88 (10th Cir.1991). "The fundamental miscarriage of justice exception is available 'only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.' " Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Steele has not made any showing or claim that he is factually innocent. ⁸ We therefore hold the double jeopardy issue procedurally barred from federal habeas review.

II.

In any event, Steele's double jeopardy claims would fail on the merits. He claims that it was double jeopardy to (1) convict him under both section 645 (assault and battery with a dangerous weapon) and section 652 (assault and battery with a deadly weapon with intent to kill) of Okla.Stat.Ann. tit. 21, and (2) to order his sentences to run consecutively. We turn to Oklahoma law to determine whether Steele committed one or more than one offense for double jeopardy purposes, see Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir.1993), and find that Okla.Stat.Ann. tit. 21, Sec. 645 crimes are lesser-included crimes of those enumerated in section 652. Favro v. State, 749 P.2d 127, 133 (Okla.Crim.App.1988). Thus, under the "Blockburger" or "same elements" test, Steele could not be convicted under both statutes if he committed only one assault and battery, because section 645 does not contain any elements not also contained in section 652. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling "same conduct" test of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). However, if he committed more than one assault and battery, Oklahoma law clearly permitted charging Steele under both sections, 645 and 652, even though the offenses arose out of the same general episode or transaction. Jennings v. State, 506 P.2d 931, 935 (Okla.Crim.App.1973) ("[W]here crimes against the person are involved, even though various acts are part of the same transaction, they will constitute separate and distinct crimes where they are directed at separate and distinct persons."). The facts, as gleaned from Oklahoma state court documents which are before us, show that Steele committed acts of assault and battery against two different persons (Oscar Ashley, Sr., and Tony Ashley) during the single episode of violence at the tavern, and that each count charged violence against a separate victim. Thus, on the merits, we would find no double jeopardy in Steele's multiple-count conviction. ⁹

Similarly, we would find no double jeopardy in Steele's consecutive sentences. Consecutive...