Bowser v. Boggs

• Decision Date: 04 March 1994
• Docket Number: No. 92-1187,92-1187
• Citation: 20 F.3d 1060
• Parties: Tony Lee BOWSER, Petitioner-Appellant, v. Bill BOGGS, Warden, Rifle Correctional Center, Colorado Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1060

20 F.3d 1060

Tony Lee BOWSER, Petitioner-Appellant, v. Bill BOGGS, Warden, Rifle Correctional Center, Colorado Department of Corrections, Respondent-Appellee.

No. 92-1187.

United States Court of Appeals Tenth Circuit.

March 4, 1994.

E. Ronald Beeks, Evergreen, CO, for petitioner-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., and Matthew S. Holman, Asst. Atty. Gen., Crim. Enforcement Section, Denver, CO, for respondent-appellee.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Tony Lee Bowser appeals from the district court's order denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. Bowser also applies to this court for a certificate of probable cause. Determining that Bowser raises issues that are debatable, we grant the application. See Harris v. Allen, 929 F.2d 560, 561 (10th Cir.1991). We exercise jurisdiction under 28 U.S.C. Sec. 2253, and affirm.

I

In April 1988, Bowser and another man, James Tevlin, entered a third man's house and some items were stolen. State charges were filed. At trial, Mr. Bowser denied any knowledge of or complicity in the burglary and theft, testifying that he thought his companion was going to do a drug deal with the third man and that he, Bowser, would receive some free drugs in the process. Bowser testified that it was not until he was back sitting in the car that he realized things had been taken from the house by Tevlin. III R. at 32-33. Bowser was found guilty by the jury of second-degree burglary with intent to commit theft in violation of Colo.Rev.Stat. Sec. 18-4-203, and acquitted by the same jury of charges of theft and conspiracy to commit burglary and theft arising out of the same facts.

On direct appeal Bowser argued, inter alia, that the jury's verdicts were inherently inconsistent. Under Colorado law, verdicts must be consistent if the charges are based on the same evidence. Robles v. People, 160 Colo. 297, 417 P.2d 232, 234 (1966) (en banc). In affirming the conviction here, and apparently attempting to harmonize the jury's verdicts, the Colorado Court of Appeals held:

We conclude, that based on the evidence, the jury could have found that the defendant did not aid, abet, advise, or encourage the other man in the commission or planning of the theft. The jury could have reasonably believed the defendant's testimony that he intended only to obtain drugs from the illegal entry and not other items of personal property. The record shows that defendant did not take any drugs from the house. Thus, there is evidence to support the jury's verdict finding the defendant guilty of burglary as a principal absent the complicitor [sic] theory.

People v. Bowser, No. 89CA0671, slip op. at 1-2 (Colo.Ct.App. Aug. 30, 1990) (emphasis added). The Colorado Court of Appeals denied rehearing, with one judge voting to grant the petition, and the Colorado Supreme Court denied certiorari. The instant federal habeas petition followed and was denied.

Bowser appeals, contending that: (1) the Colorado Court of Appeals evaded state inconsistent-verdict law by holding that the verdicts were not inconsistent because "the jury could have reasonably believed the defendant's testimony that he intended only to obtain drugs" and therefore violated his due process right to notice of the charges against him and his constitutional privilege against self-incrimination, Pet'r's br. at 8; ¹ and (2) "the state court of appeals' refusal to apply--or even acknowledge the existence of--cited and binding state precedent on closing-argument improprieties violated the petitioner's federal constitutional right to equal protection of the laws, and the prosecutor's improper closing argument denied the petitioner his federal constitutional right to due process in any event," Pet'r's br. at 10.

Bowser's petition for habeas relief was denied below, the district judge holding that inconsistent verdicts do not offend the federal constitution and that the prosecutor's closing remarks, while improper, also did not violate the federal constitution because such remarks did not constitute plain error. We review the district court's denial of Bowser's petition for writ of habeas corpus de novo. Sinclair v. Henman, 986 F.2d 407, 408 (10th Cir.) (citation omitted), cert. denied, --- U.S. ----, 114 S.Ct. 129, 125 L.Ed.2d 83 (1993).

II

The State contends that Bowser has not exhausted his state court remedies as required by 28 U.S.C. Sec. 2254(b). ² See also Coleman v. Thompson, 501 U.S. 722, ---- - ----, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991) ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.") (citations omitted). Alternatively, the State suggests that Bowser procedurally defaulted because he raised his federal constitutional issues for the first time on petition for certiorari to the Colorado Supreme Court. ³ Without elaboration, the district court proceeded to the merits, "declin[ing] to base [its] ruling on exhaustion or procedural default." Order Denying Pet. for Writ of Habeas Corpus at 3. The question of when and how defaults in compliance with state procedural rules can preclude federal court consideration of a habeas petition is itself a federal question. Osborn v. Schillinger, 861 F.2d 612, 618 (10th Cir.1988).

As a preliminary matter, we observe that Bowser did not use the term "federal" in his petition for rehearing to the Colorado Court of Appeals to describe the nature of the rights allegedly violated by the Colorado state courts. He did, however, refer to "at least three constitutional issues," and to "equal protection of the law," and to his "constitutional right to notice of the charges against him." The federal quality of the rights asserted was sufficiently discernible to fairly apprise the Colorado Court of the federal nature of Mr. Bowser's claims. Defendant need not cite " 'book and verse on the federal constitution.' " Picard v. Conner, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)); see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.), cert. denied sub nom. Nichols v. Tansy, 490 U.S. 1112, 109 S.Ct. 3169, 104 L.Ed.2d 1031 (1989). "Rather, it is only necessary that the federal claim be 'fairly presented' to the state courts so that they have the first opportunity to hear the claim sought to be vindicated by the federal habeas petition." Nichols, 867 F.2d at 1252. We believe Mr. Bowser has satisfied this "fair presentation" requirement as to the claims he now argues to us.

Bowser does not dispute the fact that he asserted some of his federal constitutional claims for the first time in his petition for rehearing to the Colorado Court of Appeals. With respect to the federal constitutional issues arising out of the Colorado Court of Appeals' application of its state's inconsistent-verdict law, and its refusal to apply state law on closing argument improprieties, Bowser correctly argues that the petition for rehearing was his first opportunity to raise these issues. Having raised these issues on petition for certiorari to the Colorado Supreme Court, Bowser has therefore satisfied the exhaustion requirement with respect to these issues. ⁴

III

A.

We now turn to Bowser's argument that the Colorado Court of Appeals' evasion of state inconsistent-verdict precedent deprived petitioner of his federal constitutional due process right and his privilege against self-incrimination. He says these wrongs occurred because the Colorado Court of Appeals evaded state precedent by holding he had been convicted of having an intent not charged. For this argument, Bowser relies on the Colorado Court's statement that "the jury could have reasonably believed the defendant's testimony that he intended only to obtain drugs." Bowser, No. 89CA0671, slip op. at 1.

Generally habeas relief will only be granted to "a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254. However, under federal law "[c]onsistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932); see also United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 475, 83 L.Ed.2d 461 (1984); Harris v. Rivera, 454 U.S. 339, 346-48, 102 S.Ct. 460, 464-66, 70 L.Ed.2d 530 (1981) (inconsistency in judge's findings as to guilt of parties furnishes no constitutional basis for federal habeas relief from state conviction). The relief which the defendant is afforded is protection against jury irrationality or error by independent review of the sufficiency of the evidence by trial and appellate courts. Powell, 469 U.S. at 67, 105 S.Ct. at 478.

In reviewing a constitutional challenge to the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original) (citation omitted). As discussed below, Bowser's claim concerning the alleged inconsistency of the verdicts focuses also on other related claims of error. Nevertheless, we have...