Cummings v. Evans

• Decision Date: 12 November 1998
• Docket Number: No. 96-6382,96-6382
• Citation: 161 F.3d 610
• Parties: 98 CJ C.A.R. 6000 David Leon CUMMINGS, Petitioner--Appellant, v. Edward EVANS, Warden; Attorney General of the State of Oklahoma, Respondents--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 610

161 F.3d 610

98 CJ C.A.R. 6000

David Leon CUMMINGS, Petitioner--Appellant, v. Edward EVANS, Warden; Attorney General of the State of Oklahoma, Respondents--Appellees.

No. 96-6382.

United States Court of Appeals Tenth Circuit.

Nov. 12, 1998.

Submitted on the briefs: ^*

David Leon Cummings, Petitioner-Appellant, appeared pro se on the opening brief.

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal Public Defender, Denver, CO, were appointed to represent him on the supplemental brief.

W.A. Drew Edmondson, Attorney General of Oklahoma, Steven E. Lohr, Assistant Attorney General, Criminal Division, State of Oklahoma, Oklahoma City, OK, for Respondents-Appellees.

Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

Petitioner David Leon Cummings, an Oklahoma state prisoner, appeals an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because petitioner is proceeding pro se, we liberally construe his brief and find that he raises all issues brought before the district court. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). On appeal, Mr. Cummings alleges: (1) a violation of his right not to be placed in double jeopardy because both crimes arose from the same course of criminal conduct; (2) denial of a fair trial because the court admitted his co-defendants' prior out-of-court statements in violation of his Sixth Amendment right to confront witnesses; (3) state court error in failing to rule on his motion to suppress his co-defendant's statements; (4) unlawful enhancement of his sentence; (5) error in allowing the prosecution to tell the jury how much time he served for a prior conviction; and (6) that the trial court's treatment of his motion to sever and his peremptory challenges violated the Fifth and Sixth Amendments. We exercise jurisdiction pursuant to 42 U.S.C. § 2253 and affirm.

I.

On the afternoon of April 18, 1988, petitioner entered a bar in Savanna, Oklahoma. He ordered a beer from the lone waitress, left the bar for a few minutes and returned. Soon after, two other men entered the bar. One went immediately behind the bar, stabbed the waitress, and struck her in the mouth when she screamed. The waitress fell down, and the assailant then took money from the cash register and the waitress' purse. Meanwhile, petitioner came around the bar and put a knife to the waitress' throat, instructing the third man to tie and gag her. After binding the waitress, the men fled. Police apprehended them later that day.

A jury convicted Mr. Cummings of Robbery with a Dangerous Weapon After Former Conviction of a Felony ("AFCF") and Assault and Battery with a Deadly Weapon AFCF. The trial court imposed consecutive sentences of twenty-five years for the robbery charge and one hundred years for the assault and battery charge. Defendant filed a direct appeal, raising numerous constitutional and procedural errors. On February 23, 1993, the Oklahoma Court of Criminal Appeals affirmed Mr. Cummings' convictions in a summary opinion. Mr. Cummings then filed a petition for a writ of habeas corpus with the United States District Court for the District of Western Oklahoma. The matter was referred to a magistrate judge, who recommended denial of the petition on all counts except petitioner's double jeopardy claim. The district court, in a written order on October 24, 1996, refused to follow the magistrate's recommendation as to the double jeopardy claim, adopted the magistrate's other recommendations, and denied the habeas petition. We granted Mr. Cummings' motion for a certificate of probable cause to proceed on appeal and ordered briefing on his double jeopardy claim. Respondent concedes that petitioner has exhausted his state remedies for the purposes of federal habeas corpus review.

II.

On appeal from the district court's determination of a § 2254 petition, we review the district court's conclusions of law de novo, but we presume the state court's factual findings are correct unless they are not fairly supported by the record. See Hatch v. Oklahoma, 58 F.3d 1447, 1453 (10th Cir.1995). We review mixed questions of law and fact de novo. See id.

A. Double Jeopardy

Mr. Cummings asserts that his conviction for both Robbery with a Dangerous Weapon and Assault and Battery with a Deadly Weapon violates the Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Fourteenth Amendment. The Double Jeopardy Clause consists of three separate constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against 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 on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Here, the third protection is at issue. This protection, however, is limited to "ensur[ing] that the sentencing discretion of courts is confined to the limits established by the legislature," for it is the legislature that is vested with "the substantive power to prescribe crimes and determine punishments." Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); see also Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, when a course of criminal conduct constitutes a violation of two statutory provisions, the test to determine whether the punishments are "multiple," in violation of the Double Jeopardy Clause, is "essentially one of legislative intent." Johnson, 467 U.S. at 499, 104 S.Ct. 2536. In the absence of clear legislative intent, courts must apply the Blockburger test, which states " 'that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not.' " Hunter, 459 U.S. at 366-67, 103 S.Ct. 673 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

Respondent argues that the applicable standard in this case is Blockburger. Under that standard, Mr. Cummings' double jeopardy argument certainly fails because, under Oklahoma law, the elements for robbery differ from those for assault and battery. ¹ However, this argument overlooks Okla. Stat. tit. 21, § 11, which provides:

an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, ... but in no case can [it] be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other.

This statutory double jeopardy provision, which is separate from the double jeopardy provision of the Oklahoma state constitution, see Hale v. State, 888 P.2d 1027, 1029 (Okla.Crim.App.1995), is indicative of legislative intent. Thus, we must consider it in determining the federal constitutional double jeopardy question.

"In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court's determination of the legislature's intent." Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990); see also, e.g, Lucero v. Kerby, 133 F.3d 1299, 1316 (10th Cir.1998) (asserting that federal court in habeas corpus proceeding should defer to state court's determination of separate offenses for double jeopardy purposes), cert. denied, --- U.S. ----, 118 S.Ct. 1684, 140 L.Ed.2d 821 (1998); Thomas v. Kerby, 44 F.3d 884, 887 (10th Cir.1995) (same). In other words, if the highest state court determines that the legislature intended to punish separate offenses cumulatively, a federal habeas court must defer to that conclusion. See Birr, 894 F.2d at 1161. Here, the Oklahoma Court of Criminal Appeals, the highest court on criminal matters in Oklahoma, see Brecheen v. Reynolds, 41 F.3d 1343, 1348 n. 2 (10th Cir.1994), rejected Mr. Cummings' double jeopardy argument. Because we defer to the highest state court's ruling, this might be the end of the issue.

However, Mr. Cummings asserts that we may not rely on the Court of Criminal Appeals' decision because it was a summary disposition. Recognizing that this court has, in the past, deferred to summary decisions of the Court of Criminal Appeals, see Larsen v. Frazier, 835 F.2d 258, 259 (10th Cir.1987) (per curiam), Cummings argues that Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) now requires that we accord a state court's summary opinion no weight. Instead, Cummings claims we must look to other state court opinions in order to determine if there were valid grounds for the Court of Criminal Appeals decision. Ylst involved the question of whether procedural default applied to a habeas corpus petition. The Supreme Court held that a federal habeas corpus court would have to "look through" a state appellate court's summary denial of post-conviction relief to the last reasoned opinion in that case in order to determine whether procedural default applied. Ylst, 501 U.S. at 802-04, 111 S.Ct. 2590. Petitioner recognizes that, since he appealed his conviction directly to the Court of Criminal Appeals, there is no written opinion in his case. Therefore, he argues we must expand the Ylst principle and look to other applicable reasoned decisions by the Court of Criminal Appeals.

Ylst dealt specifically with procedural default. This court has not addressed whether a "look through" principle applies to summary dispositions in the double jeopardy context. Regardless of whether we rely on the summary disposition or look through to other decisions of the Oklahoma Court of Criminal Appeals, the summary...