Wyldes v. Hundley

Citation69 F.3d 247
Decision Date20 December 1995
Docket NumberNo. 95-1212,95-1212
PartiesDonnie Lee WYLDES, Jr., Plaintiff-Appellant, v. Thomas HUNDLEY, Warden, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Dean Stowers, Des Moines, Iowa, argued, for appellant.

Thomas McGrane, Assistant Attorney General, argued, for appellee.

Before MAGILL, FLOYD R. GIBSON, and HENLEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Donnie Lee Wyldes, Jr., appeals the district court's 1 dismissal, on procedural grounds, of his habeas corpus petition. We conclude that Wyldes defaulted his federal juror misconduct claim by failing to raise it in the Iowa state courts. Because he has not asserted grounds sufficient to overcome the procedural bar, we affirm.

I. BACKGROUND

In February of 1987, the State of Iowa charged Wyldes with attempted murder and murder in the first degree. During Wyldes's trial, the prosecuting attorney attempted to connect him to the crime scene by showing that Wyldes's .22 caliber rifle was the weapon used in committing the offenses. To buttress its case, the State offered the testimony of an expert witness who compared shell casings at the murder site with casings collected from four other locations where Wyldes was believed to have fired his shotgun. Naturally, Wyldes produced his own firearms expert to discredit the testimony of the State's witness.

The experts analyzed the mark that a gun's firing pin had made on each of the sample casings. Based on their findings, the experts agreed that the casings from one locale, identified as the "gravel road," were discharged from the same weapon utilized at the murder site. The witnesses disagreed, however, about the casings retrieved from the other three locations. According to the State's expert, it was possible that those casings could have been shot from the same gun used in committing the offenses. In contrast, Wyldes's expert claimed that the casings recovered from those three localities could not, in all likelihood, have been fired from the weapon used during the crime.

After submission of the evidence, the jury convicted Wyldes of both charges. Following the conclusion of the trial, Wyldes's attorneys conducted interviews with the jurors. Through these conversations, the attorneys learned that one juror, Paul Snyder, had performed his own experiment and reported the results to the other venirepersons. During a weekend recess, Snyder had fired his personal .22 caliber rifle and compared the marks that the gun's firing pin left on the expelled casings. Snyder communicated to other jurors that his gun's firing pin had made a different mark on each shell tested.

Upon learning of Snyder's independent research, Wyldes's counsel moved for a new trial based, among other things, on juror misconduct. The attorneys presented supporting affidavits from three other jurors indicating that Snyder had engaged in the inappropriate activity. The State objected to the motion and produced an affidavit in which Snyder stated that, although he had intended to test fire his rifle, he had never actually conducted the experiment as claimed. The trial judge denied the requested relief, and Wyldes appealed his conviction.

On direct appeal, Wyldes argued under Iowa law that Snyder had engaged in juror misconduct sufficient to justify a new trial. In other words, Wyldes claimed, using the appropriate legal standard in the state, that there was a reasonable probability that Snyder's activity influenced the verdict. 2 The Iowa Court of Appeals affirmed the conviction in an unpublished opinion, and the Iowa Supreme Court denied further review.

Wyldes then initiated an action in state court seeking postconviction relief. In that suit, which also raised juror misconduct as a basis for overturning his conviction, Wyldes for the first time explicitly referred the state courts to federal law. The postconviction trial court denied the petition, and Wyldes again filed an appeal. The Iowa Court of Appeals employed two independent theories in affirming the trial judge's decision to dismiss the juror misconduct claim. First, the court determined that, because Wyldes had alleged juror misconduct to directly assail his conviction, the doctrine of issue preclusion barred relitigation of that issue. Additionally, the appellate court used Iowa Code Sec. 822.8 (1995) as an alternative prohibition on reconsideration of the juror misconduct claim. That statute proscribes relitigation "in a postconviction proceeding [of] any ground which was finally adjudicated on direct appeal." 3 Armento v. Baughman, 290 N.W.2d 11, 12 (Iowa 1980); see Iowa Code Sec. 822.8 (1995). In an attempt to bypass the statutory procedural barrier, Wyldes alleged that he had received ineffective assistance from his counsel at trial and on direct appeal. Despite Wyldes's arguments, the Iowa Court of Appeals refused to grant relief; the Iowa Supreme Court declined to review the case.

Wyldes later brought this federal habeas corpus action under 28 U.S.C. Sec. 2254 (1988). Before the district court, Wyldes asserted that juror misconduct deprived him of his federal constitutional rights: to confront and cross-examine witnesses, to a decision based solely on the evidence presented at trial, and to a fair and impartial jury capable and willing to decide the case on the evidence presented at trial. Specifically finding that on direct appeal "neither petitioner, nor the [S]tate, nor the Iowa appellate courts cited or mentioned the federal Constitution or any other federal case law or statute in connection with the misconduct claim," the district court reasoned that Wyldes had defaulted this arguably federal claim. Further, because Wyldes "did not argue in state court that counsel [at trial and on direct appeal were] ineffective in failing to preserve his federal claims," the district court ruled that the prisoner could not allege ineffective assistance of counsel in arguing cause to excuse the procedural bar. For similar reasons, the district court rejected Wyldes's independent claims of ineffective assistance of counsel. 4 Finally, the district court concluded that Wyldes did not "argue [ ]or offer to show" his actual innocence, and the court accordingly dismissed the writ.

On appeal to this court, Wyldes claims that the district judge committed error by refusing to consider the merits of his habeas petition. For the following reasons, we affirm the district court's dismissal of the writ.

II. DISCUSSION
A. Fair Presentation

In refusing to consider Wyldes's federal juror misconduct claim during his state collateral proceedings, the Iowa Court of Appeals determined that Wyldes had litigated the "identical issue" during his direct appeal. Therefore, according to Wyldes, the appellate court concluded that he had "fairly presented" the federal claim in a state forum. Wyldes maintains that this amounts to a "historical factual finding" to which federal courts must accord great deference pursuant to 28 U.S.C. Sec. 2254(d) (1988). Consequently, because the state courts had a fair opportunity to consider the federal issue, but did not, he argues that the district court committed error by declining to reach the merits of his claim. 5

Wyldes, however, misstates the law. Resolving whether a petitioner has fairly presented his claim to the state courts, thus permitting federal review of the matter, is an intrinsically federal issue that must be determined by the federal courts. "Because exhaustion functions as a federal court gatekeeper, the federal, not the state, courts decide when the state process has been exhausted or should be deemed ineffective because of delay." Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir.1994). We thus must determine whether Wyldes did, indeed, fairly present the federal juror misconduct claim during his direct appeal.

To satisfy the fair presentation requirement, we traditionally demand that a habeas petitioner have presented "the same legal theories and factual bases to the state courts." Pollard v. Armontrout, 16 F.3d 295, 297 (8th Cir.1994). Nonetheless, "[a]lthough the constitutional substance of a claim must be apparent, it is not necessary to cite 'book and verse on the federal constitution.' " Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir.1992) (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971)). At minimum, though, the petitioner during direct appeal must have explicitly referred the state courts to the United States Constitution or federal case law. Luton v. Grandison, 44 F.3d 626, 628 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1262, 131 L.Ed.2d 141 (1995); McDougald v. Lockhart, 942 F.2d 508, 510 (8th Cir.1991) ("Explicit citation to the Constitution or to a federal case is necessary for fair presentation of a constitutional claim in state court"). Our exhaustion analysis, described by Wyldes as "too narrow," has recently been vindicated by the United States Supreme Court in Duncan v. Henry, --- U.S. ----, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam).

In Duncan, the Supreme Court addressed the broad issue now before us in this appeal. Id. at ---- - ----, 115 S.Ct. at 887-88. The Court concluded that, in order to give state courts a meaningful opportunity to correct alleged violations of prisoners' federal rights, those courts "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at ----, 115 S.Ct. at 888. If a state prisoner wishes to properly claim that his incarceration violates federal law, "he must say so, not only in federal court, but in state court." Id. The Court further announced that "mere similarity of claims is insufficient to exhaust." Id.

We conclude that Wyldes did not fairly present the federal juror misconduct claim during his direct appeal. 6 The district...

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