Tyler v. Nelson, 97-3323

• Decision Date: 05 January 1999
• Docket Number: No. 97-3323,97-3323
• Citation: 163 F.3d 1222
• Parties: 1999 CJ C.A.R. 1033 St. John TYLER, Petitioner--Appellant, v. Michael NELSON, Warden, and Attorney General of Kansas, Respondents--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1222

163 F.3d 1222

1999 CJ C.A.R. 1033

St. John TYLER, Petitioner--Appellant, v. Michael NELSON, Warden, and Attorney General of Kansas Respondents--Appellees.

No. 97-3323.

United States Court of Appeals Tenth Circuit.

Jan. 5, 1999.

Jean Gillis Phillips (David J. Gottlieb, Director and Professor of Law, The Paul E. Wilson Defender Project, University of Kansas School of Law, Lawrence, Kansas, on the brief), Lawrence, Kansas, for Petitioner-Appellant.

Jared S. Maag, Assistant Attorney General, Criminal Litigation Division, Topeka, Kansas, for Respondents-Appellees.

Before BALDOCK, McKAY, and HENRY, Circuit Judges.

McKAY, Circuit Judge.

In state court proceedings, Petitioner pled guilty to a charge of conspiracy to sell cocaine and went to trial on the remaining counts of second degree murder, sale of cocaine, aggravated assault of a law enforcement officer, possession of heroin with intent to sell, and perjury. The jury convicted Petitioner on all of these counts. The Kansas Supreme Court set forth the underlying facts in detail in its decision affirming Petitioner's convictions on direct appeal. See State v. Tyler, 251 Kan. 616, 840 P.2d 413 (Kan.1992). We include only those facts relevant to our consideration of the issues raised on appeal.

On February 2, 1988, Sedgwick County Sheriff's officers obtained a search warrant for a residence in Wichita, Kansas, following a controlled buy of cocaine at the residence earlier that day. In preparation for executing the warrant, officers from the Sheriff's Department and from the Wichita Police Department convened to discuss the available information concerning the layout and the occupants of the residence. The officers also developed a plan for executing the warrant, pursuant to which eight officers would enter the house and four would remain outside. Each of the eight officers who entered the house was assigned to secure a certain area of the house. For example, Detective James McNutt was assigned to open the screen door and secure the living room, while Detective Terry McNett was instructed to secure the kitchen. Detective McNutt wore his sheriff's uniform. Five other officers, including Detective McNett, wore blue jackets with cloth sheriff's badges on the front and large yellow letters on the back reading "SHERIFF'S NARCOTICS." These five officers also wore blue ballcaps with cloth sheriff's badges on the front. The remaining two officers wore Wichita Police Department uniforms. As the team of officers approached and entered the house, they shouted identifying statements such as "sheriff's officers," "search warrant," and "sheriff's office, no one move."

After entering the house, Detective McNutt ordered one of the occupants to stand against the wall. Detective James Woods ran down the hall and kicked down the door of the southeast bedroom. Detective Sergeant Danny Bardezbain pumped a shotgun to instill fear in the residents. Meanwhile, with his gun drawn, Detective McNett ran into the kitchen where Petitioner shot and killed him. Petitioner also fired at least one shot in the direction of Sergeant Bardezbain. Next, Detective Terry Parham entered the kitchen and shot and wounded Petitioner in both of his legs. Without further incident, officers took Petitioner into custody. He and others found in the residence subsequently were arrested. A second warrant was issued in connection with the homicide. The execution of the original warrant and the second warrant yielded cocaine, drug paraphernalia, and other evidence.

Trial testimony regarding the raid was conflicting. Sonya Wheeler, who sold drugs for Petitioner from the residence, testified that she and Petitioner were sitting in the living room when the raid began, and that they ran into the kitchen when officers entered the front door. Another witness, Richard Polite, also testified that Ms. Wheeler and Petitioner were in the living room when police entered the house. Ms. Wheeler testified that while she was in the kitchen, she tried to throw a gun into the trash but missed and she threw some drugs on the floor. In addition, Ms. Wheeler testified that Detective McNett was only a foot or two away from her when Petitioner shot him, and that Petitioner was standing right behind her. Ms. Wheeler also testified that two weeks prior to the raid Petitioner had told her that if officers ever attempted to take him into custody, he "would take someone out." R., Tr. Trans. at 417-18.

Other witnesses who were in the residence at the time of the raid testified that they did not hear the police officers announce their identity, but they assumed that the intruders were police based on their race and the fact that they had guns. Trial testimony also indicated that some of the occupants who did not hear or understand the officers' identifying statements thought that the intruders were robbers because they had heard a rumor that the house would be robbed. At trial, Ms. Wheeler testified that she knew the people entering the residence were police officers because she had heard them identify themselves. Ms. Wheeler also testified that she previously had lied to police to protect herself and Petitioner. Prior to testifying at trial, Ms. Wheeler gave five different statements to police. Some of these statements reflect that she did not know that the intruders were police. However, shortly after the State charged Ms. Wheeler with first-degree murder of Detective McNett, she gave her final statement to police, which was consistent with her trial testimony. Two days later, the State dismissed the charges of first degree murder and aggravated assault on a law enforcement officer against her. The State also agreed to recommend minimum sentencing for the two crimes to which Ms. Wheeler pled guilty, namely conspiracy and possession with intent to sell. At trial, Ms. Wheeler denied that her plea agreement required her to testify against Petitioner, but she was not sentenced until Petitioner's trial ended.

Petitioner's trial testimony differed from Ms. Wheeler's in several respects. He testified that he and Ms. Wheeler were in the kitchen when police entered the house, and that he did not know that the intruders were police officers. Instead, he thought the intruders were robbers who had entered the house and had started shooting people. Petitioner specifically indicated that he thought Detective McNett was a robber even though he was one of the officers wearing a blue jacket and ballcap with sheriff's badges. He claimed that Detective McNett's long hair, beard, jeans, and sneakers contributed to this impression. Thus, Petitioner testified that when Detective McNett entered the kitchen with his gun drawn, he thought Detective McNett was going to kill him.

Despite Petitioner's request, the state trial court refused to instruct the jury on self-defense. However, the court instructed the jury on first-degree murder, second-degree murder, and voluntary manslaughter. The jury returned a verdict of second-degree murder on that count. The trial court sentenced Petitioner to a controlling term of 111 to 330 years' imprisonment; and, as mentioned above, the Kansas Supreme Court affirmed Petitioner's convictions on direct appeal on October 30, 1992. See Tyler, 840 P.2d at 435.

Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 10, 1994. In an opinion dated September 30, 1997, the district court denied Petitioner's habeas corpus petition. See Tyler v. Nelson, 978 F.Supp. 1435, 1439 (D.Kan.1997). Petitioner then filed a motion for a certificate of appealability to appeal the court's denial of his petition. In its responsive order, the district court noted that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 do not apply to Petitioner's appeal because his petition was filed prior to its enactment. The court therefore construed Petitioner's motion as a motion for a certificate of probable cause and granted it, explaining that "the issues presented by this action deserve further review." R., Vol. I, Doc. 39, at 2.

I.

This court "may grant habeas relief to a state prisoner only if state court error 'deprived him of fundamental rights guaranteed by the Constitution of the United States.' " Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.) (quoting Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir.1979)), cert. denied, --- U.S. ----, 119 S.Ct. 378, 142 L.Ed.2d 312 (1998). Because this case was filed before the AEDPA's enactment, pre-amendment standards of review apply. See id. (citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997)). Thus, while "we review the legal bases for the district court's dismissal of [the] petition de novo, we afford deference to the state court's construction of state law." Id. (citation omitted). We lack authority to correct errors of state law made by state courts. See id.; King v. Champion, 55 F.3d 522, 527 (10th Cir.1995). We presume that the state court's factual findings are correct, and we review the district court's factual findings for clear error. See Jackson, 143 F.3d at 1317 (citing 28 U.S.C. § 2254(d) (pre-amendment)); Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir.1997), cert. denied, --- U.S. ----, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998). Where the district court's factual findings are based solely upon a review of the state court record, however, they are subject to this court's independent review. See Cunningham v. Diesslin, 92 F.3d 1054, 1062 n. 6 (10th Cir.1996).

II.

Petitioner first claims that the district court erred in determining that the state trial court's refusal to instruct the jury on self-defense did not deny him due process of law. We employ a highly deferential standard of review in evaluating the state trial court's refusal to deliver Petitioner's requested self-defense instruction. "As a general rule, errors in jury instructions in a state criminal trial are not reviewable in...