Welch v. City of Pratt

• Decision Date: 06 June 2000
• Docket Number: No. 99-3273,99-3273
• Citation: 214 F.3d 1219
• Parties: (10th Cir. 2000) MICHAEL E. WELCH, Petitioner-Appellant, v. CITY OF PRATT, KANSAS; ROBERT J. SCHMISSEUR, District Judge, Pratt County, Kansas; RAY MCGUIRE, Sheriff of Pratt County, Kansas; ATTORNEY GENERAL OF KANSAS, Respondents-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1219

214 F.3d 1219 (10th Cir. 2000)

MICHAEL E. WELCH, Petitioner-Appellant, v. CITY OF PRATT, KANSAS; ROBERT J. SCHMISSEUR, District Judge, Pratt County, Kansas; RAY MCGUIRE, Sheriff of Pratt County, Kansas; ATTORNEY GENERAL OF KANSAS, Respondents-Appellees.

No. 99-3273

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

June 6, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 99-CV-3047)

Michael S. Holland of Holland and Holland, Russell, Kansas, for Petitioner-Appellant.

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

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Michael E. Welch was convicted in a Kansas state court of driving under the influence of alcohol. Following affirmance of his conviction on direct appeal, petitioner filed this action in the district court seeking a writ of habeas corpus under 28 U.S.C. 2254. The district court denied the petition and denied his request for a certificate of appealability under 28 U.S.C. 2253(c). Petitioner appeals and asks this court for a certificate of appealability on two issues focusing on his jury instructions: the instructions given did not adequately protect his constitutional right not to testify; and the instructions contained an impermissible presumption and the evidence was otherwise insufficient to support his conviction. We conclude that petitioner has made substantial showings of the denial of constitutional rights, and we grant him a certificate of appealability on both issues. See id. Nonetheless, we agree with the district court that he is not entitled to habeas relief, albeit through somewhat different analyses than those used by the district court. We therefore affirm.¹

The facts are not disputed. At 9:10 p.m. on March 8, 1996, a City of Pratt police officer stopped petitioner for driving in excess of the posted speed limit. After observing several indications that petitioner was intoxicated, the officer arrested petitioner and took him to the Pratt Law Enforcement Center, where petitioner agreed to take a breath test. The test was administered at 10:08 p.m. and showed petitioner's blood alcohol content to be .147, which was above the legal limit of .08. A jury convicted petitioner of driving under the influence of alcohol in violation of City of Pratt Municipal Ordinance 30(a)(2), and petitioner was sentenced, inter alia, to six months in the county jail, a fine of $1,000, and a year on probation after serving ten consecutive days in the county jail (apparently with the remaining six months suspended). The Kansas Court of Appeals affirmed on direct appeal, and the Kansas Supreme Court denied review. Petitioner then brought this habeas action alleging that his conviction was unconstitutional for two reasons, both of which he re-urges on appeal.

I

Petitioner first contends that the jury instruction pertaining to his Fifth Amendment right not to testify at trial was constitutionally inadequate. The trial court gave the following instruction, taken from Kansas pattern instruction No. 52.13: "You should not consider the fact that the defendant did not testify in arriving at your verdict." Appellant's App. at H-150. Petitioner had requested that the following instruction be given instead:

It is the constitutional right of a defendant in a criminal trial that he may not be compelled to testify. The decision as to whether he should testify is left to the defendant acting on the advice and assistance of his attorney. You must not draw any inference of guilt from the fact he did not testify, and this fact must not be discussed by you or enter into your deliberations in any way. In deciding whether or not to testify, a defendant may choose to rely on the state of the evidence or upon the failure, if any, of the prosecution to prove every essential element of the charge against him. . . . Carter v. Kentucky, 450 U.S. 288, 303-304 . . . (1981); United States v. [de ]Hernandez, 745 F.2d 1305, 1309 (10th Cir. 1984).

Appellant's App. at G-149. Petitioner contends that the instruction given does not meet the requirement, established by Carter, that the jury be instructed that a defendant's silence cannot be used as an inference of guilt, nor the requirement, established by de Hernandez, that the jury be told that a defendant cannot be compelled to testify. We address the "no adverse inference" and "compulsion" aspects of his proposed instruction in turn.

The Fifth Amendment to the United States Constitution states that no person "shall be compelled in any criminal case to be a witness against himself." This prohibition on compulsory self-incrimination led the Supreme Court to hold that the Constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965). In Carter, the Court noted that "[e]ven without adverse comment, the members of a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence." 450 U.S. at 301. The Court therefore held that to further protect the Fifth Amendment privilege against compulsory self-incrimination, "a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." Id. at 305. The Court stated that this obligation "requires that a criminal trial judge must give a 'no-adverse-inference' jury instruction when requested by a defendant to do so." Id. at 300. The instruction need not, however, be in any particular form nor in the form requested by the defendant. See United States v. Gomez-Olivas, 897 F.2d 500, 502 (10th Cir. 1990); cf. James v. Kentucky, 466 U.S. 341, 350 (1984) ("The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the [adverse] inference if the defendant so requests; but it does not afford the defendant the right to dictate, inconsistent with state practice, how the jury is to be told.").

The instruction the trial court gave here told the jury "not [to] consider the fact that the defendant did not testify in arriving at your verdict." Though the instruction did not expressly tell the jury not to draw any adverse inferences, we agree with the district court that it sufficiently covered the substance of the Carter obligation in this regard. See United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996) (rejecting Carter challenge where jury instructed that "it is the government's burden to prove a defendant's guilt beyond a reasonable doubt and that [t]he defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence") (quotation omitted); United States v. Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989) (approving over Carter challenge instruction stating "the fact that the defendant does not [testify, explain, or present evidence] cannot even be considered by you in arriving at your verdict"); United States v. Russo, 796 F.2d 1443, 1454-55 (11th Cir. 1986) (approving instruction telling jury that "if a Defendant elects not to testify, you should not consider that in any way during your deliberations" as "broader and more beneficial to the [defendants] than their requested instruction" containing no-adverse-inference language). By instructing the jury not to consider petitioner's failure to testify in its deliberations, the jury was told not to draw any inferences, adverse or otherwise, or in any way to use his right to remain silent against him. We conclude that the instruction given at petitioner's trial satisfied the trial court's obligation under Carter to protect his constitutional right not to testify.

Turning to the compulsion aspect of petitioner's proposed instruction, we held in de Hernandez that the jury must be instructed, when the defendant so requests, that the defendant cannot be compelled to testify. See 745 F.2d at 1309. Petitioner asserts that the failure of the trial court's instruction to include the not-compelled-to-testify language required by de Hernandez violated his Fifth Amendment right and entitles him to habeas relief.² Although the district court did not expressly address this argument in its order denying the petition, we find it unpersuasive.³

Petitioner filed his petition on February 8, 1999, and it is therefore subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA amended the federal habeas corpus statute under which petitioner seeks relief, 28 U.S.C. 2254, to provide that:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .

28 U.S.C. 2254(d)(1); see Williams v. Taylor, 120 S. Ct. 1495, 1504 (2000). "[A]s the statutory language makes clear, . . . 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Williams, 120 S. Ct. at 1523; see also Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir. 1997) (noting that under AEDPA, "we are no longer permitted to apply our own jurisprudence, but must look exclusively to Supreme Court caselaw in reviewing a petitioner's claim"); accord O'Brien v. DuBois, 145 F.3d 16, 20 (1st Cir. 1998); Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997). Further, clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions." Williams, 120 S. Ct. at 1523.

In holding that courts must give...