Hicks v. Franklin

• Decision Date: 17 November 2008
• Docket Number: No. 07-7084.,07-7084.
• Citation: 546 F.3d 1279
• Parties: Gary Lee HICKS, Petitioner-Appellant, v. Eric FRANKLIN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

546 F.3d 1279

Gary Lee HICKS, Petitioner-Appellant, v. Eric FRANKLIN, Warden, Respondent-Appellee.

No. 07-7084.

United States Court of Appeals, Tenth Circuit.

November 17, 2008.

James L. Hankins of Ogle & Welch, P.C., Oklahoma City, OK, for Petitioner-Appellant.

Theodore M. Peeper, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.

KELLY, Circuit Judge.

Gary Lee Hicks pled guilty to murder in the second degree in violation of Okla. Stat. tit. 21 § 701.8 (1976),¹ for which he was sentenced to life imprisonment. After exhausting his state remedies, he filed a pro se federal habeas petition under 28 U.S.C. § 2254 claiming that his plea lacked a factual basis, that it was not knowing and voluntary, and that his sentence was excessive. The district court adopted the report and recommendation of the magistrate judge, denied relief, and subsequently denied a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(2). Mr. Hicks filed a renewed application for a COA in this court and we granted it on two issues that were substantially raised in his federal habeas petition: (1) whether the state trial court committed constitutional error in accepting Mr. Hicks' plea given the facts admitted by Mr. Hicks and his assertion of innocence regarding the act or acts responsible for the decedent's death, and (2) whether Mr. Hicks' plea was knowing and voluntary. We also appointed counsel to represent Mr. Hicks. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.

Background

The essential facts, as set forth by the magistrate judge and adopted by the district court, are undisputed on appeal. On June 30, 2002, a Mr. Wade Edwards took ingredients to manufacture methamphetamine to the home of petitioner, Mr. Gary Lee Hicks, and asked him to "cook" some methamphetamine for him. At first Mr. Hicks refused, but eventually he agreed to cook the methamphetamine. Mr. Hicks' wife (the deceased Mrs. Theresa Hicks), his daughter Janetta, and his two grandchildren left the house while Mr. Hicks manufactured methamphetamine in his bedroom. After Mr. Hicks completed the cook, the family returned home.

Upon returning, Janetta Hicks found a jar of a post-production fluid in her bedroom. An hour and a half to two hours after the cook was finished, someone took the jar of flammable post-production fluid from Janetta Hicks' bedroom and placed it on a hot plate in the kitchen.² The jar then cracked, spilling the fluid. Mrs. Hicks went to the kitchen to clean it up, and while she was doing so the fluid ignited and there was a flash fire that burned both Mrs. Hicks and Mr. Hicks' niece, Stacy Hughes. Unfortunately, Mrs. Hicks chose not to go to the hospital immediately because of the illegal activities that had preceded the flash fire. Mrs. Hicks was eventually admitted to the hospital and ended up spending two weeks there before she passed away from complications arising from the extensive burns she had suffered.

Mr. Hicks was charged with first degree murder, with first degree arson providing the predicate felony. The basis of the arson allegation was that the fire was the direct result of manufacturing methamphetamine, not that Mr. Hicks willfully or maliciously set the fire. For a fire that is not maliciously or willfully set to be classified as first degree arson, the fire must occur while the accused is manufacturing a controlled dangerous substance. Okla. Stat. tit. 21 § 1401. The State faced a potential difficulty in carrying its burden of proof on this issue because the available testimony showed that the fire occurred approximately two hours after the manufacturing had been completed. Just before the trial began, therefore, the parties reached a plea agreement. The prosecutor orally amended in court the first degree murder charge to murder in the second degree on the basis that Mr. Hicks had committed an "imminently dangerous act." When the trial court asked Mr. Hicks if he understood what the State had done, Mr. Hicks responded, "I don't know what the `dangerous act' means." The trial court then engaged Mr. Hicks in the following dialogue:

The Court: The `dangerous act' is manufacturing methamphetamines. It's an inherently dangerous act.

The Defendant: Is that a second charge?

The Court: No, sir, it's just one charge, but it's the basis for Murder in the Second Degree. When you're charged with Murder in the First Degree it's what we call the `Felony Murder Rule.' That means if you commit a murder while you're committing a felony or if someone is killed while you're committing a felony, as a result of that felony then you can be charged with Murder in the First Degree, do you understand that?

The Defendant: Yes, sir.

The Court: The same applies if you're committing an inherently dangerous act, and the State's allegation is that manufacturing methamphetamine is an inherently dangerous act, and that causes someone to die, you can be charged with Murder in the Second Degree, do you understand that?

The Defendant: Yes.

The court then inquired as to the factual basis that would support the plea. In the dialogue that followed, Mr. Hicks admitted manufacturing methamphetamine. However, Mr. Hicks also stated that his family was gone during the manufacturing process, and that the process had been completed approximately two hours before the fire. Mr. Hicks also continuously maintained that he did not place the jar on the hot plate.

The Court: Tell me what you did.

The Defendant: Well, my friend and Uncle Wade Edwards showed up at the house and had stuff with him and asked me if I wanted to cook. At first I said no, but I finally gave in. Well, before I gave in—

The Court: When you say you were going to `cook,' what are you talking about?

The Defendant: Methamphetamine.

The Court: Do you know how to make it?

The Defendant: Yes. And before I decided to he had to wait because my wife and family and all went to go get gas for his truck, so he couldn't leave. So I went ahead and said yes. I cooked it in our bedroom. He was in there with me while I cooked it in the bedroom. It had been done-it had been finished a good hour and a half to two hours before the fire started. I have no idea who took that jar into the kitchen.

...........

The Defendant: Another thing, there's also witnesses that seen who put that jar on that hot plate, sir.

The Court: Well, however that comes out I'm not too concerned about that right now. If you all have the chemical and you all have the fuel in the house and you were using it to manufacture drugs, it doesn't really matter who does it. The problem is it's an inherently dangerous act or it's a felony act. It could be manufacturing or endeavoring to manufacture methamphetamine. Either way, it's still a felony, and while you're committing that felony if a homicide occurs as a result of your acts the law is you're guilty of murder. Do you understand that?

The Defendant: Yes, sir.

The court then accepted Mr. Hicks' plea. At the sentencing hearing, Mr. Hicks testified as to his relationship with his wife, that they were married for twenty-one years, and that he loved and missed her. The court nevertheless sentenced Mr. Hicks to life imprisonment. Mr. Hicks later sought to withdraw his plea, but the court denied the application. Mr. Hicks then sought a writ of certiorari from the Oklahoma Court of Criminal Appeals ("OCCA"). The OCCA denied the writ and affirmed the trial court in a summary order. Hicks v. State, No. C-2003-1026 (July 2, 2004) (unpublished order). The OCCA held in pertinent part:

[W]e find the trial court's remarks about the amended charge did not render Petitioner's plea unknowing or involuntary under the facts of this case. The record before us shows the Petitioner was fully advised of and understood the consequences of his pleas. See Carpenter v. State, 929 P.2d 988, 998 (Okla.Crim.App. 1996); Frederick v. State, 811 P.2d 601, 603 (Okla.Crim.App.1991).

Id. Having failed to obtain relief in state court, Mr. Hicks filed his habeas petition under 28 U.S.C. § 2254.

Standard of Review

Because Mr. Hicks' claims now on appeal were decided on the merits by the state court, the resolution of those claims is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). Under AEDPA, a petitioner is entitled to a writ of habeas corpus only if he can demonstrate that the adjudication of his claim "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). In determining whether the decision was contrary to or unreasonably applied clearly established federal law, we review the district court's legal analysis of the state court decision de novo. Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir.2004); Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.2000).

The steps involved in applying AEDPA's standard are well settled. We first assess whether there is clearly established federal law, as set forth in the holdings of the Supreme Court. House v. Hatch, 527 F.3d 1010, 1016-17 (10th Cir.2008). If there is clearly established federal law, we then consider whether the state court decision was contrary to or involved an unreasonable application of it. Id. at 1018.

A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court would] have done on a set of materially indistinguishable facts. The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably...