Hammer v. Saffle
| Citation | 986 F.2d 1427 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Decision Date | 29 November 1993 |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Before PAUL KELLY, Jr., Circuit Judge, BARRETT, Senior Circuit Judges, and OWEN *, District Court Judge.
David Paul Hammer appeals from the orders and judgment of the district court adopting the report and recommendations of the magistrate judge and denying his petition for habeas corpus.
Hammer was charged in state court with kidnapping, robbery with firearms, and shooting with intent to kill, after former conviction of two or more felonies. The facts underlying the charges were summarized in Hammer v. State, 760 P.2d 200, 201-02 (Okla.Crim.App.1988):
On October 28, 1988, Thomas Upton was driving in northwest Oklahoma City and was stopped at a traffic light, when appellant stuck a gun in the window of Upton's vehicle, got into the car, and ordered him to drive to a specified motel. Upon arriving at the motel, Upton was ordered to an upstairs room, where he was told to empty his pockets. During the time in the motel room, appellant would appear calm for a short period of time, but suddenly become agitated and violent. This mood change occurred several times throughout the evening. At one point, Upton unsuccessfully attempted to wrestle the gun away from appellant, but appellant hit him with the gun, threatened to kill him and ordered him into the bathroom.
Shortly thereafter, appellant forced Upton at gun point to leave the motel room and to drive to a deserted area on Sarah Road. When they arrived, he forced Upton to disrobe and lie face down on the road. Appellant then fired three shots, in rapid succession, into the head and face of Upton. Unbelievably, Upton got up and chased appellant, who fled in Upton's car. Upton then walked three miles and was picked up by a passing motorist who took him to the hospital.
Hammer was arrested but escaped from custody. He was subsequently arrested in California and transferred back to Oklahoma by Officers Richard Runyon and Lynn Cummings for trial.
When he [Hammer] was being transferred back to Oklahoma, he was placed in the custody of two Oklahoma City police officers. Appellant was given his Miranda warnings as soon as he was turned over to the officers. The officers transported him to the airport and placed him in a holding cell for one and one half hours to await the arrival of the airplane. During the flight, one officer [Richard Runyon] asked appellant about the kidnapping and robbery. Appellant stated that he got into Upton's car at a stoplight. The officer also asked appellant if he shot Upton, to which he replied, "I did shoot the guy in Oklahoma City [but] I don't want to tell you anything more about it." After appellant made this statement, the officer stopped all discussion.
Prior to trial, Hammer requested that he be allowed to represent himself. Hammer proceeded pro se throughout the first phase of his trial, which was bifurcated in accordance with the laws of Oklahoma. Thereafter, the court, following Hammer's request, appointed stand-by counsel to represent him during the second phase of the trial.
At trial, Thomas Upton, the victim, positively identified Hammer as his assailant. Officer Runyon testified relative to Hammer's confession during their airplane flight back to Oklahoma. Officer Cummings did not testify. Hammer was convicted and sentenced to 400 years imprisonment on each of the three counts, with the sentences to run consecutively.
On appeal, Hammer alleged, inter alia, that: his confession was improperly admitted in violation of his Miranda rights; the prosecutor's comments relative to Upton's testimony constituted fundamental error; and the State had violated his rights under Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose prior to trial that they intended to use his admissions to Officer Runyon during their flight back to Oklahoma.
In affirming Hammer's convictions, the Court of Criminal Appeals of Oklahoma held that: Hammer's confession, made a few hours after he was given his Miranda warnings, was admissible; the prosecutor's comments during closing arguments did not give rise to fundamental error; Hammer's Brady rights were not violated because the statements were inculpatory rather than exculpatory and Hammer had knowledge that the State intended to use the admissions. Hammer.
Hammer subsequently filed an application for post-conviction relief which was denied. The Court of Criminal Appeals of Oklahoma affirmed this denial. Thereafter, Hammer filed his petition for habeas corpus herein.
Within his petition, Hammer alleged that the prosecutor had violated his constitutional rights by failing to disclose favorable evidence in violation of Brady; that an alleged confession had been illegally admitted into evidence; and that he had been denied a fair trial by prosecutorial misconduct. Counsel was appointed to represent Hammer and an evidentiary hearing was conducted before a magistrate judge on the Brady issue.
During the course of the hearing, Hammer called nine witnesses, including Lynn Cummings and the district attorneys who had prosecuted him. Cummings testified that he had accompanied Officer Runyon to California to pick up Hammer; he had read Hammer his Miranda rights; he had not heard Hammer's confession but he had no reason to believe that it was not made; and he did hear bits and pieces of the conversation between Hammer and Runyon which included the words "shooting" or "shot" and "Oklahoma City." The district attorneys both testified that they had maintained an open-file policy and that Hammer had access to all of the state records in the file during the preparation of his case.
Following the hearing, the magistrate judge entered a detailed report and recommendation finding: Brady evidence must be expressly exculpatory; inculpatory or neutral statements are not Brady evidence; Hammer's real complaint went to the notice afforded him relative to the confession; however, this was an evidentiary matter rather than a Brady allegation; and no Brady violation had occurred.
In its order accepting in full the report and recommendations of the magistrate judge, the court found: Hammer's objections to the magistrate judge's report and recommendation are without merit; Cummings' testimony was clearly inculpatory rather than exculpatory and was in no way favorable to Hammer; the facts indicate that Cummings had apprised Hammer of his Miranda rights prior to boarding the plane; and the evidence relied upon by Hammer "is simply not enough to support a Brady violation." (R., Vol. I, Tab 111 at p. 6.)
In its order denying Hammer's petition for habeas corpus, the district court found: Hammer's Brady allegations were fully addressed in the magistrate judge's report and recommendations adopted by the court in its prior order; Hammer's allegation that his "confession" was not disclosed to him prior to trial is simply an evidentiary or procedural issue as to whether the trial court would have granted Hammer a continuance, if requested; the trial court's action in not granting a continuance sua sponte was not so arbitrary or fundamentally unfair as to violate Hammer's constitutional rights; habeas corpus relief for prosecutorial misconduct is available only when the conduct is so egregious in the context of the entire trial that it renders the trial fundamentally unfair; it is not enough that the remarks complained of were undesirable or even universally condemned but rather whether the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process; and the prosecutor's comments did not affect the jury's ability to weigh the evidence fairly.
On appeal, Hammer contends that the district court erred in dismissing his habeas corpus petition and rejecting his arguments that: his Brady rights were violated by the prosecution's failure to disclose information favorable to him prior to trial; his Fifth Amendment rights were violated by the admission of his alleged confession; and he was denied his fundamental right to a fair trial by prosecutorial misconduct.
We review the factual findings of the district court in a habeas corpus proceeding under the clearly erroneous standard. United States v. Buchanan, 891 F.2d 1436, 1440 (10th Cir.1989), cert. denied, 494 U.S. 1088 (1990). However, "28 U.S.C. § 2254(d) requires the federal courts to accord state court factual findings a presumption of correctness." Hernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 1869 (1991). In Case v. Mondragon, 887 F.2d 1388, 1392-93 (10th Cir.1989), cert. denied, 494 U.S. 1035 (1990), we held:
The general rules are not in doubt. Explicit and implicit findings by state trial and appellate courts "shall be presumed to be correct," 28 U.S.C. § 2254(d), unless one of the seven factors listed in section 2254(d) are present, or the federal court concludes that the state court findings are not supported by the record....
The presumption applies to basic, primary, or historical facts and the inferences that can properly be drawn regarding them....
No presumption of correctness attaches to legal conclusions or determinations on mixed questions of law and fact. Those are reviewed de novo on federal habeas corpus.... However, the presumption of correctness will continue to apply to any findings of fact underlying mixed questions,...
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