Burleson v. Saffle

• Decision Date: 24 January 2002
• Docket Number: No. 00-6254.,00-6254.
• Citation: 278 F.3d 1136
• Parties: B.J. BURLESON, Petitioner-Appellant, v. James SAFFLE, Respondent-Appellee, and Drew Edmondson, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

278 F.3d 1136

B.J. BURLESON, Petitioner-Appellant, v. James SAFFLE, Respondent-Appellee, and Drew Edmondson, Respondent.

No. 00-6254.

United States Court of Appeals, Tenth Circuit.

January 24, 2002.

Susan M. Otto, Federal Public Defender, Oklahoma City, OK, for Petitioner-Appellant.

Diane L. Slayton, Assistant Attorney General, W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs, Oklahoma City, OK, for Respondent and Respondent-Appellee.

Before LUCERO and McWILLIAMS, Circuit Judges, and STAGG,^* District Judge.

CERTIFICATION OF QUESTION OF STATE LAW

LUCERO, Circuit Judge.

The United States Court of Appeals for the Tenth Circuit, pursuant to 10th Cir.R. 27.1 and Okla. Stat. tit. 20, § 1602, hereby respectfully submits to the Oklahoma Court of Criminal Appeals a certified question of Oklahoma law. The answer to this question, which is not clearly provided by Oklahoma law, may be determinative of the above-captioned matter now pending before this Court.

The Question¹

On August 1, 1997, the Oklahoma Court of Criminal Appeals held that "where a vehicle is used to facilitate the intentional discharge of a weapon during a single transaction or `shooting event' only one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm [Okla. Stat. tit. 21, § 652(B)] is appropriate." Locke v. State, 943 P.2d 1090, 1095 (Okla. Crim.App.1997). Did the statute have the same meaning under Oklahoma law on May 2, 1997, the day petitioner-appellant's criminal conviction for two counts of violating this section was affirmed?

I

B.J. Burleson asks this Court to reverse the decision of the district court denying his petition for a writ of habeas corpus. He contends that his Oklahoma state court conviction on two counts of using a vehicle to facilitate the discharge of a weapon was in violation of the Double Jeopardy Clause of the Fifth Amendment. We have certified the above question to the Oklahoma Court of Criminal Appeals ("OCCA") because the answer will help us determine the proper state law predicate for our resolution of the federal constitutional question raised in this case.

II

Around midnight on February 16, 1995, Burleson was riding in the backseat of a car with four friends. Earlier that night the group engaged in a series of hostile telephone calls with two other men, Kristoffer Trim and Bobby Lindsey, during which the parties exchanged various threats. Burleson and his friends arranged to meet Trim and Lindsey at a convenience store to settle their dispute by fistfight, but the rendezvous never occurred. Instead, Burleson and the others drove to the house where Trim and Lindsey were staying. As the car passed the house, Burleson fired approximately five shots at Trim and Lindsey, one of which hit Trim and left him paralyzed.

Burleson was convicted on two counts of violating Oklahoma's "drive-by shooting" statute, Okla. Stat. tit. 21, § 652(B), and was sentenced to two consecutive twenty-year terms of imprisonment. He appealed his convictions to the OCCA, alleging among other things that he had been subjected to double jeopardy by being twice punished for the single offense of using a vehicle to facilitate the discharge of a weapon. By a three-to-two vote in an unpublished summary decision dated May 2, 1997, the OCCA affirmed Burleson's convictions and sentences.

On August 1, 1997, the OCCA issued an opinion in another case that appeared as if it might have importance for Burleson. In Locke v. State, the OCCA held that "where a vehicle is used to facilitate the intentional discharge of a weapon during one single transaction or `shooting event' only one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm is appropriate." 943 P.2d 1090, 1095 (Okla. Crim.App.1997). Burleson proceeded to seek state post-conviction relief in Oklahoma County District Court ("OCDC") in the wake of the Locke decision, which even the state of Oklahoma conceded was in direct conflict with the OCCA's earlier summary affirmance of Burleson's convictions. (Order Den. Post-Conviction Relief at 2.) The OCDC noted that if Locke had been issued by the OCCA while Burleson's convictions were not yet final, retroactive application of the decision would have been required (id.), and Burleson presumably would have been afforded relief. Unfortunately for Burleson, the OCCA's decision in Locke was issued one day after his convictions became final.² As a result, the OCDC stated that "absent directions from the Court of Criminal Appeals" it would decline to apply Locke retroactively to Burleson's case. (Id.) The OCCA, in turn, refused to give such instructions and on nonretroactivity grounds alone declined to grant Burleson his requested post-conviction relief. (Order Affirming Den. Post-Conviction Relief at 1-2.)

Burleson subsequently filed a petition for a writ of habeas corpus in federal court, again alleging that he was subjected to double jeopardy, and further urging that the rule of Locke be applied to his case. The matter was referred to a magistrate judge, who recommended that the district court deny the petition because (1) the application of Locke to Burleson's case was barred by the nonretroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and (2) the OCCA's decision in Burleson's case was not contrary to or an unreasonable application of clearly established federal law. (Report & Recommendation at 1213.) The district court accepted the magistrate's recommendation, and this appeal followed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A).

III

Burleson contends that his conviction on two counts of violating Oklahoma's drive-by shooting statute offends the Double Jeopardy Clause of the Fifth Amendment, which provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb."³ U.S. Const. amend. V. The protections of the Double Jeopardy Clause extend not only to successive prosecutions for the same offense but also, as is allegedly the case here, to "multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 802-03, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also United States v. Morris, 247 F.3d 1080, 1083 (10th Cir. 2001).

The offense at issue centers on Oklahoma's drive-by shooting statute, which provides:

Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow, or other weapon in conscious disregard for the safety of any other person or persons shall upon conviction be guilty of a felony punishable by imprisonment in the State Penitentiary for a term of not less than two (2) years nor more than twenty (20) years.

Okla, Stat. tit. 21, § 652(B). Burleson asserts that the statute precludes multiple convictions arising out of one shooting spree — even if more than one person is shot at — because the plain language of the statute makes clear that the use of a vehicle is the prohibited conduct, regardless of the number of potential victims. If the Oklahoma legislature had intended to allow separate convictions for each person whose safety was threatened, Burleson suggests, it would not have included the reference to "any other person or persons" in the statute. Id. (emphasis added). Thus, he contends, it would be a double jeopardy violation to allow his conviction on two counts of violating the statute to stand even though he engaged in only a single course of conduct. Burleson also notes, correctly, that the OCCA ultimately adopted this very argument in Locke.

A

The district court, accepting the magistrate's recommendation, first refused to grant Burleson habeas corpus relief on the grounds that Teague v. Lane bars the retroactive application of Locke to his case. It is clear, however, that the nonretroactivity principle of Teague has no bearing on this case and should not have been addressed by the magistrate in his recommendation to the district court. Nonetheless, it is likewise clear that we have no authority to order the OCCA to apply Locke retroactively.

It is not the Supreme Court's decision in Teague that bars the retroactive application of Locke to Burleson's case. Rather, it is the standard of review imposed upon federal habeas courts by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to AEDPA, we may not grant an application for a writ of habeas corpus with respect to any claim adjudicated on the merits by a state court unless that state court decision

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or

(2) resulted in a decision that was 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). To the extent that Burleson asks us to grant him habeas relief by applying the "new rule" of Locke to his already final case, we have only one question to consider: Was the OCCA's decision not to apply Locke retroactively to Burleson's case contrary to or an unreasonable application of federal law? The answer to that question is clearly no, because whether or not a new rule of state law may be applied retroactively is a pure state law question.⁴

The "general rule of [Oklahoma] law," according to the OCCA, is that "new rules or intervening changes in the law should only be applied prospectively from their effective date, especially on collateral review, unless they are specifically declared to have retroactive effect." (Order Affirming Den. of Post-Conviction Relief at 1-2.) This state law ruling provides no grounds for the granting of habeas relief, and we do not consider it in our habeas analysis. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct....