Selsor v. Kaiser

• Decision Date: 02 May 1994
• Docket Number: No. 93-5002,93-5002
• Citation: 22 F.3d 1029
• Parties: Michael B. SELSOR, Petitioner-Appellant, v. Stephen W. KAISER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1029

22 F.3d 1029

Michael B. SELSOR, Petitioner-Appellant, v. Stephen W. KAISER, Respondent-Appellee.

No. 93-5002.

United States Court of Appeals Tenth Circuit.

May 2, 1994.

Submitted on the briefs: ^*

Michael B. Selsor, petitioner-appellant, appeared pro se on the opening brief. Michael G. Katz, Federal Public Defender, and James P. Moran, Asst. Federal Public Defender, Denver, CO, were appointed to represent him on the supplemental brief.

Susan B. Loving, Atty. Gen. of Oklahoma, and Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, OK, for respondent-appellee.

Before BALDOCK and McWILLIAMS, Circuit Judges, and SAFFELS, District Judge. ^**

BALDOCK, Circuit Judge.

Petitioner Michael B. Selsor appeals the district court's denial of his petition for writ of habeas corpus, 28 U.S.C. Sec. 2254. We have jurisdiction under 28 U.S.C. Sec. 1291.

In January 1976, in the state district court for Tulsa County, Oklahoma, Petitioner and Richard Dodson, a codefendant, were tried jointly on charges of murder in the first degree--i.e., a homicide perpetrated in the commission of an armed robbery (felony murder), the underlying felony of armed robbery, and shooting with an intent to kill. Petitioner and Dodson were represented by the same counsel. Petitioner was convicted on all three counts and was sentenced to death on the murder charge, twenty-five years imprisonment on the armed robbery conviction, and twenty years imprisonment on the shooting with intent to kill charge. Dodson was acquitted on the murder charge, but convicted on the other two charges.

Petitioner's convictions were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals, although the court modified Petitioner's death sentence on the murder charge to life imprisonment, holding that Oklahoma's death penalty statute was unconstitutional. See Selsor v. State, 562 P.2d 926 (Okla.Crim.App.1977). In his direct appeal, Petitioner alleged, inter alia, that the trial court erred in failing to either grant a severance of his trial from Dodson's trial or appoint separate counsel. Petitioner did not raise a double jeopardy issue in his direct appeal.

In November 1978, Petitioner filed an application for post-conviction relief, Okla.Stat.Ann. tit. 22, Sec. 1080 (West 1986), in the state district court in Tulsa, Oklahoma. In that application the only issue Petitioner raised was that he had been denied his Sixth Amendment right to effective assistance of counsel because the trial court refused to sever the trials or appoint separate counsel for Petitioner and Dodson. Petitioner did not raise a double jeopardy issue in this post-conviction application. The state district court denied Petitioner's application in February 1980, and the denial was later affirmed by the Oklahoma Court of Criminal Appeals in an unpublished order.

In July 1989, Petitioner filed a second application for post-conviction relief in the state district court in Tulsa, Oklahoma, alleging for the first time that he had been punished in violation of the Double Jeopardy Clause of the Fifth Amendment when he was convicted and sentenced for both the charge of felony murder and the underlying felony of armed robbery. The state district court denied that application on the ground that Petitioner failed to raise the double jeopardy claim in the trial court, on direct appeal, or in his first application for post-conviction relief; therefore, the court held, under Oklahoma law, the claim was waived. In an unpublished order, the Oklahoma Court of Criminal Appeals affirmed the denial, holding that all issues previously ruled upon by the Oklahoma Court of Criminal Appeals were res judicata, and that Petitioner had waived all issues raised for the first time in his second petition for post-conviction relief. See Okla.Stat.Ann. tit. 22, Sec. 1086 (West 1986).

In October 1991, Petitioner, appearing pro se, filed the present petition for relief pursuant to Sec. 2254 in the United States District Court for the Western District of Oklahoma. In this petition, Petitioner raised the following two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's conflict of interest--i.e., the same attorney represented both Petitioner and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony--i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment. Respondent filed a motion to dismiss the petition for failure to exhaust state remedies as to Petitioner's claim of ineffective assistance of counsel.

On December 4, 1992, the district court denied Petitioner's petition. The district court did not grant Respondent's motion to dismiss for failure to exhaust. Instead, the district court addressed the merits of Petitioner's ineffective assistance of counsel claim and concluded that Petitioner was not entitled to relief. The court also found that Petitioner was procedurally barred from raising his double jeopardy claim. Finally, the district court concluded that refusing to entertain Petitioner's double jeopardy claim would not result in a fundamental miscarriage of justice. Petitioner appeals the district court's denial of his petition.

In this court, Petitioner filed his initial brief pro se. Thereafter, we entered an order appointing the Federal Public Defender for the District of Colorado to represent Petitioner on appeal. ¹

I.

Petitioner first contends that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel had a conflict of interest in that he represented both Petitioner and Dodson at trial. The district court apparently concluded that Petitioner had raised that particular issue in the state courts of Oklahoma and therefore had exhausted his state remedies. ² The district court rejected Petitioner's claim of ineffective assistance of counsel on the merits, stating that Petitioner had not shown that any "conflict of interest," resulting from trial counsel's representation of both Petitioner and Dodson, had "actually affected" the "adequacy of [counsel's] representation" of Petitioner.

Petitioner and Dodson were jointly represented at trial by two attorneys from the state public defender's office, with one attorney conducting both defenses while the other attorney supervised that attorney. Petitioner and Dodson both entered pleas of not guilty. Prior to trial, counsel moved to sever the trials of Petitioner and Dodson, or appoint separate counsel for each, because of a possible conflict of interest. That motion was denied. On the day the case came up for trial, Dodson amended his plea to not guilty by reason of insanity, at which time counsel again moved for separate trials, or separate counsel, which motion was again denied.

At trial, the prosecution called an eye witness to the robbery and shooting, who gave her account of events. The prosecution also introduced confessions from both Petitioner and Dodson. ³ After the prosecution rested, both defendants invoked their constitutional right not to testify. The only witness called by either defendant was Dr. Rustico Dizon Garcia, a forensic psychiatrist, who had examined Dodson. Although he was called on Dodson's behalf, the doctor testified that he had no opinion as to whether Dodson was legally sane, or insane, at the time of the robbery and murder.

In rejecting Petitioner's claim, the district court relied on the Supreme Court's decision in Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), in which the Court held that in order to demonstrate ineffective assistance of counsel, a defendant must establish that an "actual conflict of interest adversely affected his lawyer's performance." We conclude the district court's reliance on Cuyler's "actual conflict" standard was misplaced.

In Cuyler the defendant brought a Sec. 2254 petition for habeas relief based, in part, on an allegation that his two trial attorneys represented potentially conflicting interests in their joint representation of the defendant and two codefendants. Id. at 337-38, 100 S.Ct. at 1712-13. The defendant in Cuyler, however, did not object to the joint representation at trial. Id. Because of the defendant's failure to object at trial, Cuyler concluded that the trial court had no duty to inquire about the possibility of a conflict of interest. Id. at 347, 100 S.Ct. at 1716. The Court also held that the defendant could not establish a Sixth Amendment violation based on a showing of a mere possibility of a conflict of interest; rather, the defendant must demonstrate an actual conflict. Id. at 348, 100 S.Ct. at 1718. The Court in Cuyler announced this "actual conflict" standard, however, by stating, "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. (emphasis added). This language makes it clear that the Cuyler "actual conflict" standard applies only in those cases in which the defendant fails to raise a conflict of interest objection at trial. See Hamilton v. Ford, 969 F.2d 1006 (11th Cir.1992) ("Cuyler is limited to those cases in which a defendant raises no objection to joint representation at trial"), cert. denied, --- U.S. ----, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993); see also United States v. Martin, 965 F.2d 839, 841 (10th Cir.1992) (applying Cuyler actual conflict standard "[b]ecause defendant failed to raise a Sixth Amendment objection at trial"); United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990) (same). Because in the instant case, Petitioner vigorously objected to the joint representation at trial, Cuyler is inapplicable.

We conclude that the instant case is controlled by the Supreme Court's holding in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In...