Brown v. Uphoff

• Citation: 381 F.3d 1219
• Decision Date: 08 September 2004
• Docket Number: No. 03-8019.,03-8019.
• Parties: Paul David BROWN, III, Petitioner-Appellant, v. Judy UPHOFF, Director, Wyoming Department of Corrections, in her official capacity; Attorney General of the State of Wyoming, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

381 F.3d 1219

Paul David BROWN, III, Petitioner-Appellant, v. Judy UPHOFF, Director, Wyoming Department of Corrections, in her official capacity; Attorney General of the State of Wyoming, Respondents-Appellees.

No. 03-8019.

United States Court of Appeals, Tenth Circuit.

September 8, 2004.

Appeal from the United States District Court for the District of Wyoming, William F. Downes, J.

COPYRIGHT MATERIAL OMITTED

Terry J. Harris, Terry J. Harris, P.C., Cheyenne, WY, for Petitioner-Appellant.

Melissa M. Swearingen, Assistant Attorney General, State of Wyoming, (Patrick J. Crank, Attorney General, State of Wyoming, with her on the brief), Cheyenne, WY, for Respondents-Appellees.

Before MURPHY, HOLLOWAY, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Petitioner-Appellant, Paul David Brown, III, appeals the district court's order denying his petition for habeas relief filed under 28 U.S.C. § 2254. Following a jury trial, Brown was convicted in Wyoming state court of conspiracy to commit murder. His conviction was affirmed on direct appeal and his subsequent state petition for post-conviction relief was denied. Brown brought a habeas petition in federal district court arguing, inter alia, that his Sixth Amendment right to confront witnesses had been violated by the admission of a confession made by a co-defendant. The district court denied Brown's petition, but granted his request for a certificate of appealability on the Confrontation Clause question. We exercise jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 and affirm the denial of Brown's petition.

II. BACKGROUND

Because the district court's order denying Brown's request for habeas relief sets forth in detail the background of Brown's conviction, we will only briefly summarize the facts. Brown was convicted of conspiring with his co-defendant, Joseph Vena, to murder James Guthrie. Brown and Vena were working as informants for the ATF at the time Guthrie was killed. Guthrie and Brown both worked in Vena's automobile detailing center, where Brown and Vena completed drug transactions in their roles as informants. After Guthrie's body was discovered, Brown and Vena were questioned separately by investigators. Brown was arrested. After his interview, Vena accompanied investigators on a search for evidence. When nothing was located during the initial search, Vena agreed to meet with the officers for a second search. Prior to the second search, Vena was given Miranda warnings and interviewed again. After accompanying investigators on the second search, Vena was interviewed a third time and then arrested. The statements given by Vena described in detail how he and Brown had planned and carried out the murder.

At Brown's trial,¹ Vena invoked his Fifth Amendment privilege against self-incrimination and the district court concluded he was unavailable to testify. Vena's statements describing the murder were introduced through the testimony of an ATF agent, Kenneth Bray, and a Cheyenne police officer, Detective Richard Zukauckas. During Zukauckas' testimony, the trial court also allowed the prosecution to play a portion of a tape-recording of Vena describing how the murder was planned.² Defense counsel objected to the introduction of Vena's statements on the grounds that the statements were inadmissable hearsay and violated Brown's right to confront witnesses against him. The trial court admitted the statements after concluding that they were trustworthy to the extent that they were equally incriminating to Brown and Vena. The court did exclude some statements by Vena indicating that it was Brown who carried out the killing.

On direct appeal, Brown reasserted his objections to the introduction of Vena's statements. The Wyoming Supreme Court rejected Brown's arguments, holding that the statements were admissible under Wyoming Rule of Evidence 804(b)(3) and did not constitute a violation of the Confrontation Clause.³ Brown v. Wyoming, 953 P.2d 1170, 1178-80 (Wy.1998). On the Confrontation Clause question, the Wyoming Supreme Court concluded the statements made by Vena had sufficient indicia of reliability so that there was no material departure from the substance of the constitutional protection. Id. at 1179-80. In doing so, the court relied upon Ohio v. Roberts, in which the Supreme Court of the United States held that if a hearsay declarant is not present for cross-examination, his statement is admissible only if the statement bears adequate "indicia of reliability." 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quotation omitted). Brown filed a state petition for post-conviction relief and that petition was denied.

Brown then filed for habeas relief in the United States District Court for the District of Wyoming. In its decision, the district court examined the factors relied on by the Wyoming Supreme Court to conclude that the admission of Vena's statements did not violate the Confrontation Clause. The district court determined that these factors were appropriate under Roberts, and that the Wyoming Supreme Court's analysis of the reliability of Vena's statements was not contrary to or an unreasonable application of clearly established federal law. Alternatively, the district court concluded that any error committed by the state court in admitting the statements would have been harmless. Accordingly, the district court denied Brown's petition for habeas relief.

The district court granted Brown's request for a certificate of appealability on two questions: (1) whether the Wyoming Supreme Court's decision that the admission of Vena's statements inculpating Brown did not violate Brown's rights under the Confrontation Clause was contrary to or an unreasonable application of clearly established federal law, and (2) whether any possible violation of the Confrontation Clause was harmless error.

III. DISCUSSION

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. Brown claims that the admission of Vena's statements was a violation of his Confrontation Clause rights.

A. AEDPA Deference

Brown filed his 28 U.S.C. § 2254 petition after April 24, 1996 and, therefore, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") govern this appeal. See Battenfield v. Gibson, 236 F.3d 1215, 1220 (10th Cir.2001). In reviewing the denial of a habeas corpus petition, we review the district court's legal conclusions de novo and its factual findings for clear error. Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999). Because the state court has reviewed the merits of Brown's claims, habeas relief is not warranted unless the state court adjudication 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). We presume that factual determinations made by the state court are correct unless the petitioner rebuts this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Under Ohio v. Roberts, an out-of-court statement can be introduced against the defendant without violating the Confrontation Clause only if the statement bears guarantees of trustworthiness such that "there is no material departure from the reason [for] the general rule" requiring confrontation. 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quotation omitted). The Wyoming Supreme Court determined that Roberts provided the appropriate framework for its analysis of whether the admission of Vena's statements was a violation of the Confrontation Clause. Brown, 953 P.2d at 1179-80. At the time of the decision, the Wyoming Supreme Court's determination was accurate.⁴

Brown contends, however, that the Wyoming Supreme Court's decision is contrary to clearly established federal law as announced in both Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), and Lee v. Illinois, 476 U.S. 530, 543-44, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). A decision is contrary to clearly established precedent if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Likewise, a state court decision would be contrary to clearly established law if the "state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different result]." Id. at 406, 120 S.Ct. 1495.

Williamson concerned whether certain evidence was admissible under Federal Rule of Evidence 804(b)(3). Williamson, 512 U.S. at 598-601, 114 S.Ct. 2431. The Court explicitly refused to reach the issue whether the statements were inadmissible under the Confrontation Clause. Id. at 605, 114 S.Ct. 2431. Accordingly, the Wyoming Supreme Court's decision concerning whether the admission of Vena's statement violated the Confrontation Clause could not be "contrary to" or an "unreasonable application" of Williamson.

Brown also asserts that the Wyoming Supreme Court's decision was contrary to Lee because the court considered the voluntariness of Vena's statement as contributing to its trustworthiness. Additionally, as the district court noted, the Wyoming Supreme Court relied on corroborating evidence as another indication of the reliability of Vena's statement. Because the Supreme Court of the United States determined that these factors are not appropriate indicators of trustworthiness under the Roberts test, we agree with Brown's assertion.

The Supreme Court's holdings regarding the use of corroborating evidence and voluntariness are unequivocal: reliance on them is inappropriate for determining whether a statement is trustworthy. The court in Lee noted voluntariness "does not bear on the...