Beem v. McKune, No. 00-3224.
| Decision Date | 27 January 2003 |
| Docket Number | No. 00-3224.,No. 00-3249. |
| Citation | 317 F.3d 1175 |
| Parties | Steven D. BEEM, Petitioner-Appellant, v. David R. McKUNE, Warden, Lansing Correctional Facility; Carla Stovall, Kansas Attorney General, Respondents-Appellees. Donald Henson, Jr., Petitioner-Appellant, v. David R. McKune, Warden, Lansing Correctional Facility; Carla Stovall, Kansas Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael S. Holland (Michael S. Holland II, with him on the brief), Holland and Holland, Russell, KS, for Petitioners-Appellants.
Kristafer R. Ailslieger, Assistant Attorney General, Criminal Litigation Division, Topeka, KS, for Respondents-Appellees.
Before TACHA, Chief Judge, McKAY, SEYMOUR, EBEL, KELLY, HENRY, LUCERO, MURPHY, HARTZ, and O'BRIEN, Circuit Judges.*
Petitioners-appellants Steven D. Beem and Donald H. Henson, Jr. sought habeas corpus relief in federal district court, 28 U.S.C. § 2254, arguing that the Kansas state courts violated their federal constitutional rights by sentencing them for aggravated incest — a crime for which they had never been charged, tried, or convicted. The district court denied the petitions for habeas corpus and the petitioners' requests for certificates of appealability. Both petitioners appealed, and their cases were consolidated for our review. A divided panel of this court decided in petitioners' favor, vacating their convictions and sentences. We now consider the cases as an en banc court. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, GRANT petitioners' requests for certificates of appealability, and AFFIRM the district court's denial of the habeas petitions.
Beem was charged in the District Court of Reno County, Kansas, with one count of indecent liberties with a child, Kan. Stat. Ann. § 21-3503. In 1989, a jury found him guilty, and the court sentenced him to 15 to 60 years imprisonment.1 Beem appealed his conviction, and the Kansas Court of Appeals affirmed in 1991. Beem later filed a state habeas corpus petition, Kan. Stat. Ann. § 60-1507, arguing that because he was related to his victim, he should have been charged with aggravated incest rather than indecent liberties with a child pursuant to a state law rule announced in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992).2 In 1995, the trial court vacated Beem's sentence for indecent liberties with a child and ordered resentencing, in accordance with the Kansas Supreme Court's decision in Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994).3 At resentencing, the court imposed a sentence of 9 to 30 years, which conforms to the sentencing range for aggravated incest. Beem appealed the new sentence, arguing that the court had violated his rights to due process and to a jury trial. The Kansas Court of Appeals affirmed, and the Kansas Supreme Court denied review.
Henson was charged in the District Court of Miami County, Kansas, with three counts of rape, Kan. Stat. Ann. § 21-3502. In 1992, a jury found him guilty on all three counts, and the court sentenced him to three consecutive sentences of 7 to 20 years each. Henson appealed, and the Kansas Court of Appeals held that, because the victim was his step-daughter, he should have been charged with aggravated incest — rather than rape — under Williams. Following Carmichael, the court vacated his sentence and remanded for resentencing in accordance with the penalty range for aggravated incest. The district court reduced the original sentences to 3 to 7 years each.
Beem and Henson filed petitions for writs of habeas corpus with the United States District Court for the District of Kansas. Petitioners challenged the constitutionality of the Carmichael remedy, arguing that it amounts to imprisonment for aggravated incest — an offense for which neither was ever charged, tried, or convicted — in violation of the Sixth Amendment's jury-trial guarantee and the Fourteenth Amendment's Due Process Clause. The district court denied the habeas petitions and the petitioners' requests for certificates of appealability.4 On appeal, a divided panel of this court held that the Carmichael remedy violated petitioners' constitutional rights, vacated their convictions and sentences, and noted that double jeopardy did not bar new trials on the charge of aggravated incest. We granted the State's request for en banc rehearing.
Petitioners ask us to grant certificates of appealability to appeal the district court's denial of their habeas petitions. This court will only grant a certificate of appealability to a petitioner who makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Because the district court "has rejected the constitutional claims on the merits, ... petitioner[s] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
A divided panel of this court originally granted petitioners habeas relief, and we subsequently granted the State's request for en banc review. These developments satisfy us that reasonable jurists would find the district court's assessment of the petitions' constitutional claims "debatable," and we therefore grant petitioners certificates of appealability. See id. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a).
In evaluating the district court's denial of a habeas corpus petition, we review legal conclusions de novo and factual findings for clear error. See Davis v. Executive Dir. of Dep't of Corrs., 100 F.3d 750, 756 (10th Cir.1996). To obtain habeas relief, petitioners must establish that the state court decisions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... [were] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)(2).
The appeals before us stem from the Kansas courts' application of a state law rule announced in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), and Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994). In Williams, the Kansas Supreme Court considered the interplay between two offenses: "Indecent liberties with a child" under Kan. Stat. Ann. § 21-3503 and "Aggravated incest" under Kan. Stat. Ann. § 21-3603. Id. at 894. In Williams, the State had charged the defendant with taking indecent liberties with his 14-year-old step-granddaughter. Id. at 893. Before trial, the defendant moved to dismiss the criminal complaint. Id. at 894. He argued that when a defendant is related to the alleged victim, as set forth in the aggravated incest statute, Kan. Stat. Ann. § 21-3603, "the State must charge a defendant with aggravated incest rather than indecent liberties with a child." Id.
The Kansas Supreme Court agreed. Id. at 897. Although the two statutes both prohibited the alleged conduct, aggravated incest had a kinship requirement not present in indecent liberties with a child. Id. at 894, 897.5 Specifically, aggravated incest requires that the victim be "known to the offender to be related to the offender...." Kan. Stat. Ann. § 21-3603(1). Because of this additional requirement, the court concluded that aggravated incest was a "specific" offense, as compared to indecent liberties with a child, a more "general" offense.6 Id. at 897. Under Kansas rules of statutory construction, "`a special statute prevails over a general statute unless it appears that the legislature intended to make the general act controlling.'" Id. at 895 (citation omitted). Accordingly, the court held that "where a defendant is related to the victim ... the State may charge the defendant with aggravated incest for engaging in the acts prohibited [by the aggravated incest statute] but not with indecent liberties with a child." Id. at 897.
In Carmichael v. State, the Kansas Supreme Court considered the appropriate remedy where the prosecution violated the Williams rule but the defendant raised the issue only after conviction and sentencing for rape. Carmichael, 255 Kan. 10, 872 P.2d 240, 242 (1994). The defendant argued that because he met the kinship element under the aggravated incest statute, Williams required that the court set aside his rape convictions. Id. at 241-42. The Kansas Court of Appeals had agreed, concluding that "`the judgment against [the defendant] for the offense of rape where the court was without jurisdiction to decide the issue is void.'" Id. at 242.
The Kansas Supreme Court reversed. Id. at 247. The court held that the charging error did not deprive the trial court of jurisdiction and rejected the notion that Williams required it to vacate the defendant's underlying rape convictions. Id. at 243-44, 247. In other words, the court held that the defendant did not suffer illegal convictions. Rather, the court identified the harm as "the imposition of an erroneous sentence," basing its conclusion on the Kansas legislature's intent to impose a less severe punishment for identical conduct perpetrated by a person related to the victim. Id. at 244 (emphasis added). Accordingly, the court relied on its statutory authority to "correct an illegal sentence at any time," Kan. Stat. Ann. § 22-3504, and remanded the case with instructions "to vacate the sentence imposed for rape and resentence the petitioner for aggravated incest." Id. at 247.
According to petitioners, the Carmichael remedy amounts to a court finding them guilty of and sentencing them for aggravated incest — an offense for which they were not charged,...
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