Chapman v. LeMaster

• Decision Date: 04 September 2002
• Docket Number: No. 01-2240.,01-2240.
• Citation: 302 F.3d 1189
• Parties: Richard CHAPMAN, Petitioner-Appellant, v. Tim LeMASTER, Warden, New Mexico State Penitentiary; Attorney General for the State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

302 F.3d 1189

Richard CHAPMAN, Petitioner-Appellant, v. Tim LeMASTER, Warden, New Mexico State Penitentiary; Attorney General for the State of New Mexico, Respondents-Appellees.

No. 01-2240.

United States Court of Appeals, Tenth Circuit.

September 4, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen P. McCue, Federal Public Defender, Albuquerque, NM, for Appellant.

Martha Anne Kelly, Assistant Attorney General (Patricia A. Madrid, New Mexico Attorney General, with her on the brief), Albuquerque, NM, for Appellees.

Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ, Circuit Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Petitioner-appellant Richard Chapman appeals an order of the United States District Court for the District of New Mexico dismissing his 28 U.S.C. § 2254 habeas corpus petition with prejudice. After a jury trial in 1979, Chapman was convicted of felony murder and robbery and sentenced to life imprisonment. In his petition, Chapman argues that (1) the trial court's failure to instruct the jury about the dangerousness of the underlying felony pursuant to State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977), violated his due process rights; (2) the trial court's failure to instruct the jury about the requisite mens rea for felony murder as required by State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991), violated his due process rights; and (3) he received ineffective assistance of pretrial counsel and trial counsel. The district court granted a certificate of appealability ("COA") only on the Ortega claim. Exercising jurisdiction under 28 U.S.C. § 2253, this court affirms the district court's decision to deny the writ on the Ortega claims, denies a COA on Chapman's Harrison and ineffective assistance claims and dismisses those portions of the appeal.

II. BACKGROUND

A. Factual Background

The relevant facts surrounding Chapman's crimes are undisputed. In 1978, the decomposed body of Terry Sanders was found in a ravine near Farmington, New Mexico. Chapman, Jim Humiston, Larry Smith, and Smith's wife Patricia were arrested in connection with Sanders' murder. All except Chapman pleaded guilty to murder or a lesser offense. At trial, Humiston testified as a prosecution witness. He testified that the night before Sanders' murder, Chapman was present when Humiston and Smith discussed stealing Sanders' van and money. When Smith suggested killing Sanders, Chapman rejected the idea. They planned to take Sanders out to a deserted area on the pretense of rustling calves. On direct and redirect examination, Humiston testified that they planned to use some degree of force or violence to rob Sanders because Sanders was a large man. On cross and recross examination, Humiston disclaimed any plan of force or violence, testifying instead that the three men planned to lure Sanders away from his van by proposing to steal a calf, circle back to the van, and steal the van when Sanders was away.

When the four men stopped to ostensibly rustle calves, Chapman got out of Sanders' van and went to a road to act as a lookout. Humiston and Smith remained in the van with Sanders. Humiston then incapacitated Sanders by striking him on the head with a pipe concealed in his boot and pushed him out of the van. Upon hearing the commotion, Chapman returned to the van and expressed his dismay at the turn of events. Chapman had no idea that Humiston would use a pipe to strike Sanders.

Humiston then tied Sanders' hands behind his back while Chapman returned to his lookout position. Humiston was returning to Sanders' van when he heard a gunshot; Smith had shot Sanders in the head. According to Humiston, neither he nor Chapman knew that Smith would kill Sanders. Chapman was upset by the shooting. Afterwards, the three men and Smith's wife drove the stolen van to Colorado.

B. Procedural Background

On September 25, 1978, a grand jury in San Juan County, New Mexico, district court indicted petitioner Chapman of first degree murder, felony murder, and armed robbery. Chapman had made a pretrial statement to police in which he stated "I did not kill Terry Sanders and ah — I was with the people involved under fear for my own life." On the basis that he received ineffective assistance of pretrial counsel, Chapman moved to suppress that statement, which the trial court denied. A jury found Chapman guilty of robbery and felony murder and he was sentenced to life imprisonment.

The New Mexico Supreme Court affirmed Chapman's convictions on direct appeal. Relying on State v. Harrison, Chapman argued that the trial court's failure to instruct the jury on the dangerousness of the underlying felony violated state law. 564 P.2d at 1324. The New Mexico Supreme Court rejected this argument.

Chapman sought collateral review by the New Mexico Supreme Court, claiming ineffective assistance of pretrial counsel with respect to Chapman's pretrial statement and trial counsel for failing to impeach a prosecution witness. The court denied the petition but remanded the matter to state district court, whereupon the petition was denied on the merits after an evidentiary hearing. The New Mexico Supreme Court subsequently denied certiorari review.

Chapman then filed a § 2254 petition in federal district court in New Mexico. As amended, the petition raised the ineffective assistance claims and a federal due process claim based on Harrison. During briefing in federal district court, the New Mexico Supreme Court decided State v. Ortega, which held that an intent to kill is an essential element of New Mexico's felony murder statute. 817 P.2d at 1204-05. Chapman raised a due process claim based on Ortega in his reply brief. The district court dismissed his petition with prejudice.

On appeal, this court noted that Chapman had failed to exhaust his due process claim based on Ortega. See Chapman v. Kerby, No. 93-2138, 1994 WL 386006, at *1 (10th Cir. July 22, 1994) (per curiam). Pursuant to Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), we ordered the district court to dismiss the petition without prejudice. See id.

Chapman then returned to state court to exhaust his Ortega due process claim by filing a pro se habeas petition in San Juan County district court. After oral argument, the state district court denied the petition with prejudice. The court noted that Chapman never raised the Ortega claim during trial, on direct appeal, or in his first state habeas petition. It concluded that Chapman's petition was "a successive writ and as such should be dismissed." The court nevertheless addressed Chapman's arguments by stating that Ortega "establishes a new element which the State must prove in cases of felony murder ... [but] should not be applied retroactively to Petitioner's case and conviction." The New Mexico Supreme Court initially granted a writ of certiorari but quashed the writ after briefing by the parties.

In 1998, Chapman filed another § 2254 petition in federal district court raising the Ortega due process claim, the Harrison due process claim, and the claims of ineffective assistance of pretrial counsel and trial counsel. The federal district court adopted the magistrate judge's proposed findings and recommendation to dismiss the petition with prejudice. New Mexico does not argue on appeal that any of Chapman's claims are procedurally barred or unexhausted.

III. STANDARD OF REVIEW

Because Chapman filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), its provisions govern Chapman's appeal. See Johnson v. Gibson, 254 F.3d 1155, 1159 (10th Cir.2001). Chapman argues, however, that AEDPA's standards of review should not apply in this case. Chapman claims when he chose to return to state court to exhaust his Ortega claim, he relied on the prevailing standard of review at the time, which provided for de novo review by federal habeas courts. See generally Wright v. West, 505 U.S. 277, 301-03, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O'Connor, J., concurring in the judgment). Chapman contends that he had no reason to believe that, once he returned to federal court, his claims would be reviewed under AEDPA's more deferential standards of review. See 28 U.S.C. § 2254(d). Applying AEDPA standards to his claims, Chapman asserts, would be impermissibly retroactive under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

This court, however, has previously rejected similar retroactivity arguments. See Trice v. Ward, 196 F.3d 1151, 1158 (10th Cir.1999); Moore v. Gibson, 195 F.3d 1152, 1163 (10th Cir.1999). Although neither Trice nor Moore involved a dismissal of a mixed petition and a subsequent return to federal habeas court after exhaustion in state courts, the reasoning in those cases is fully applicable here. We have consistently held that AEDPA applies to petitions filed after AEDPA's effective date, regardless of when the state proceedings occurred. See Trice, 196 F.3d at 1158; Moore, 195 F.3d at 1163. We thus apply the AEDPA standards of review.

Chapman's federal due process claim premised on Harrison was not raised before the state courts and thus not addressed on the merits.¹ This court thus "exercise[s] our independent judgment in deciding the claim." Battenfield v. Gibson, 236 F.3d 1215, 1220 (10th Cir.2001). "In doing so, we review the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error." Id.

Chapman's Ortega and ineffective assistance claims, however, were adjudicated on the merits by state courts. For those claims, Chapman is "entitled to federal habeas corpus relief only if he can establish that a claim adjudicated by the state courts `resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Trice, 196 F.3d at 1159 (quoting 28...