Wheel v. Robinson

• Citation: 34 F.3d 60
• Decision Date: 25 August 1994
• Docket Number: D,No. 618,618
• Parties: Jane L. WHEEL, Petitioner-Appellant, v. Stuart ROBINSON, Superintendent of Chittenden County Correctional Center, Respondent-Appellee. ocket 93-2307.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 60

34 F.3d 60

Jane L. WHEEL, Petitioner-Appellant, v. Stuart ROBINSON, Superintendent of Chittenden County Correctional Center, Respondent-Appellee.

No. 618, Docket 93-2307.

United States Court of Appeals Second Circuit.

Argued Nov. 15, 1993.

Decided Aug. 25, 1994.

William K. Sessions, III, Middlebury, VT (Bonnie Barnes, Sessions, Keiner, Dumont and Barnes, P.C., of counsel), for petitioner-appellant.

David Tartter, Asst. Atty. Gen. of the State of Vt., Montpelier, VT. (Jeffrey L. Amestoy, Atty. Gen. of the State of Vt., of counsel), for respondent-appellee.

Before: MINER, MAHONEY, and HEANEY, ^* Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner-appellant Jane Wheel appeals from an order entered April 1, 1993 in the United States District Court for the District of Vermont, Fred I. Parker, Chief Judge, that denied Wheel's petition for a writ of habeas corpus. Wheel sought to overturn her Vermont state court conviction on three counts of perjury in violation of Vt.Stat.Ann. tit. 13, Sec. 2904. ¹

The statements that led to the perjury charges occurred during an inquest proceeding held to investigate Wheel's possible misconduct while she was an assistant judge in Vermont. The initial focus of the investigation was whether Wheel had filed vouchers in order to be paid for days when she did not work. Subsequently, the investigation focussed on whether she had altered court documents to make it appear that she had heard cases on the days indicated by the suspect vouchers. The alleged perjury resulted from her various denials at the inquest proceeding that she had done so. Her conviction by a jury on the three perjury counts was affirmed by the Vermont Supreme Court. See State v. Wheel, 155 Vt. 587, 587 A.2d 933 (1990).

On this appeal, Wheel contends that the district court erroneously denied her habeas petition because: (1) she was denied a fair trial by juror bias and prejudice; (2) the state trial court admitted evidence (including hearsay testimony) of prior bad acts in violation of due process; (3) the evidence underlying her conviction on the second perjury count was legally insufficient because the signature of her name that was the subject of the alleged perjury was not recognizable as her handwriting; (4) the Vermont inquest procedure was unconstitutional because (a) Wheel's inability to have counsel present during the inquest was a violation of due process, and (b) a "perjury trap" was created in violation of due process because, in view of the prosecution's knowledge that it could not prosecute Wheel for the false vouchers, the sole purpose of the inquest was to induce Wheel to make false statements; and (5) the prosecution withheld exculpatory evidence from Wheel in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

We conclude that Wheel is not entitled to habeas relief, and affirm the order of the district court.

Background

The facts of this case are extensively detailed in the opinion of the Vermont Supreme Court, see Wheel passim, and are set forth in this opinion only as necessary to elucidate the issues presented on appeal. From 1975 to 1987, Wheel was an assistant judge in Chittenden County, Vermont. Wheel, 155 Vt. 587, 587 A.2d at 936. As an assistant judge, Wheel was entitled to compensation for days when she attended court, and for performance of other "official duties." See Vt.Stat.Ann. tit. 32, Sec. 1141(b). ² During late 1985, the Attorney General of Vermont began an investigation into whether Wheel had improperly submitted false pay vouchers for days on which she did not work. Wheel, 155 Vt. 587, 587 A.2d at 936. The investigation disclosed several case files where it appeared that Wheel's signature or initials had been added in her handwriting to the docket entries on the file jacket. Id.

Three inquests followed pursuant to Vt.Stat.Ann. tit. 13, Secs. 5131-5137 (one in January 1986, one on May 6, 1986, and one on May 13, 1986) to assist in the investigation of possible misconduct by Wheel and the other Chittenden County assistant judge. Wheel, 155 Vt. 587, 587 A.2d at 936. Wheel testified at both of the latter inquests, specifically testifying under oath at the May 6, 1986 inquest that: (1) she had never written her name on a file jacket other than contemporaneously with work performed on the case in the jacket; (2) with respect to a particular file entry dated "10/1/85," she had no recollection of having added her signature to the file jacket; and (3) with respect to a file entry dated "12/20/85," the "Judge Wheel" signature on the file jacket was not written by her. Id. 155 Vt. 587, 587 A.2d at 946-47.

Wheel was subsequently prosecuted for perjury with respect to the foregoing testimony. Following a jury trial, she was convicted and sentenced to forty-five days imprisonment and 1800 hours of community service. On direct appeal, the Vermont Supreme Court affirmed her conviction, id., 155 Vt. 587, 587 A.2d at 936, and subsequently denied a motion for reargument. She then sought to conduct posttrial discovery by deposing a lawyer who had participated in the inquest on behalf of the State of Vermont, anticipating a motion for a new trial. The trial court disallowed the discovery, and the Vermont Supreme Court affirmed this decision. State v. Wheel, 157 Vt. 648, 596 A.2d 372 (1991). Wheel began serving her prison sentence on August 19, 1991. That same day, she filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the District of Vermont.

The petition was referred to Magistrate Judge Jerome J. Niedermeier, whose report and recommendation proposed that the petition be denied. The grounds for this recommendation were: (1) the jury bias claim did not warrant habeas relief because the trial court's conclusion that no bias existed was a finding of historical fact sufficiently supported by the record; (2) the Vermont Supreme Court's affirmance of the trial court's evidentiary rulings rested on independent and adequate state law grounds that precluded habeas review, and in any event could not constitute adequately serious error to warrant habeas relief; (3) the evidence regarding the legibility of Wheel's signature was sufficient to support her conviction concerning the entry dated "10/1/85;" (4) the inquest procedure was constitutional because (a) Wheel was not in custody and accordingly was not entitled to have counsel present at the inquest, and (b) no "perjury trap" occurred because the inquest had a proper investigative purpose; and (5) there was no Brady violation because Wheel failed to show that any withheld information concerning the likelihood of a successful prosecution for filing false vouchers was material to her conviction on the false swearing charges.

Judge Parker adopted the report and recommendation of Magistrate Judge Niedermeier and entered an order denying Wheel's petition for a writ of habeas corpus. Wheel then appealed to this court, and Judge Parker provided a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253 and Fed.R.App.P. 22(b).

Discussion

At the outset, we note that this appeal is not mooted even though Wheel completed her sentence on April 18, 1994, when she was discharged from probation. ³ A petition may be submitted for habeas relief only if the petitioner is "in custody." 28 U.S.C. Sec. 2254(a). However, Sec. 2254(a) requires only that "the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time [the] petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (per curiam) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968)). Further, a petition is not mooted on appeal if the petitioner is released from custody while the appeal is pending. Id. at 491-92, 109 S.Ct. at 1925-26 (citing Carafas, 391 U.S. at 237-38, 88 S.Ct. at 1559). Thus, because Wheel filed her habeas petition while she was incarcerated, she satisfies the "custody" requirement of Sec. 2254, and the appeal is not mooted by her subsequent completion of her sentence.

Wheel presents the same arguments on appeal that she addressed to the district court. We proceed to consider them.

A. Jury Bias.

Wheel contends that the cumulative effect of a series of incidents at her perjury trial denied her a fair trial because of jury bias.

The first incident occurred when the court clerk reported that one of the jurors, apparently frustrated by the rigors of jury sequestration, said "I don't care about that woman. I just care about my wife and myself." In response, the trial court interviewed the juror in camera, but on the record. Before doing so, he solicited questions from counsel and reviewed with counsel the questions that he would ask the juror. The juror denied making the remark, and asserted that he could be fair and impartial in deciding the case. The transcript of the interview was then read to counsel; defense counsel requested that the clerk be interviewed in view of the conflicting testimony. The court then interviewed the court clerk, two deputy sheriffs who were present at the time the remark was allegedly made, and all the jurors (including a second interview of the juror in question). The clerk was interviewed in the presence of counsel, and the transcript of the other interviews was read to counsel. The court received assurances from each juror that he or she had not prejudged the case.

The next incident occurred when two deputy sheriffs reported statements allegedly made by a juror that she resented "the people in the courtroom" for wasting time, and hoped that she could remain impartial. The trial judge interviewed the juror, and accepted her assurances that (1) she remained impartial, and (2) nothing had occurred to prevent her from deciding the case fairly and impartially. The transcript of the interview was read to counsel.

The final incident...