Ellis v. Hargett

• Decision Date: 03 September 2002
• Docket Number: No. 00-6358.,00-6358.
• Citation: 302 F.3d 1182
• Parties: Marshall Henry ELLIS, Petitioner-Appellant, v. Steve HARGETT; Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

302 F.3d 1182

Marshall Henry ELLIS, Petitioner-Appellant, v. Steve HARGETT; Attorney General of the State of Oklahoma, Respondents-Appellees.

No. 00-6358.

United States Court of Appeals, Tenth Circuit.

September 3, 2002.

COPYRIGHT MATERIAL OMITTED

Mac Oyler, Oklahoma City, OK, for Appellant.

Steven E. Lohr, Assistant Attorney General, Oklahoma City, OK, for Appellee.

Before EBEL, PORFILIO, and JOHN R. GIBSON,^* Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Marshall Ellis, sentenced to life imprisonment for murder and other offenses, appeals the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254 (2000). We affirm.

I.

Most of the relevant facts are undisputed. Ellis drove a female companion to a methamphetamine deal in the parking lot of a restaurant in Woodward, Oklahoma, on May 8, 1985. The other parties to the deal arrived in a van: unknown to Ellis, several were undercover police officers. After the drug transaction was finished, undercover Agent William Stewart emerged from the van holding a pistol. Ellis shot and killed Stewart from his car with a sawed-off shotgun. Other undercover officers returned fire on the car, injuring Ellis's companion. Ellis fired again, wounding Detective Mark Chumley, then escaped. He was apprehended shortly thereafter.

Ellis was charged with multiple crimes. He pleaded guilty to illegal gun possession and to a drug charge, but went to trial on three counts: first degree murder, Okla. Stat. tit. 21, § 701.7 (1981); shooting with intent to kill, Okla. Stat. tit. 21, § 652 (1981); and assault with intent to kill, Okla. Stat. tit. 21, § 651 (1981). He admitted shooting Stewart and Chumley but claimed self-defense. Several witnesses testified that they did not hear Stewart identify himself as a police officer before producing a gun and approaching Ellis's car. The government produced witnesses who testified that Stewart did identify himself. Ellis testified that when he saw Stewart's gun he feared he or his companion would be killed. The trial court instructed the jury on murder, on the affirmative defense of self-defense, and on first degree heat of passion manslaughter, Okla. Stat. tit. 21, § 711 (1981), a lesser included offense of first degree murder. It instructed that if the jury had a reasonable doubt as to which offense Ellis was guilty of, it could find him guilty only of the lesser offense.

The jury convicted Ellis of first degree murder and shooting with intent to kill. He received concurrent sentences of life imprisonment and fifty years, respectively, for the offenses. Ellis appealed his conviction to the Oklahoma Court of Criminal Appeals, alleging, among several other arguments, that prosecuting him for the three shooting charges after he pleaded guilty to the firearms charge violated the constitutional prohibition against double jeopardy. The Court of Criminal Appeals upheld Ellis's conviction, but the United States Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), a then-recent double jeopardy decision. Ellis v. Oklahoma, 498 U.S. 977, 111 S.Ct. 504, 112 L.Ed.2d 517 (1990). The Court of Criminal Appeals reaffirmed its earlier decision on remand. Ellis v. State, 834 P.2d 985 (Okla.Crim.App.1992).

Ellis next sought state postconviction relief, asserting some new arguments including claims based on the due process clause. Relief was denied, and the Court of Criminal Appeals affirmed the denial in 1997. Ellis then filed a federal habeas corpus petition. The district court originally dismissed the petition as untimely, but this court reversed and remanded for consideration on the merits. Ellis v. Hargett, No. 98-6016, 1999 WL 257761 (10th Cir. Apr.28, 1999) (unpublished opinion). On remand the magistrate judge analyzed Ellis's claims and recommended denying the petition. The district court agreed, adopting the magistrate's report and recommendation by unpublished order on September 15, 2000. Ellis briefed an appeal, and this court granted a certificate of appealability on the issues raised in his brief.

II.

Ellis raises two arguments for habeas relief, both concerning the jury instructions at his trial. The more substantial argument focuses on the instructions on murder and heat of passion manslaughter. Ellis claims that the court should have instructed specifically that heat of passion was an affirmative defense to first degree murder, one that the government, not Ellis, bore the burden to disprove beyond a reasonable doubt. In light of the evidence at trial, Ellis argues, the court's failure to give such an instruction violated his due process right to be convicted only upon proof beyond a reasonable doubt of all facts necessary to constitute the crimes charged against him. See Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ("[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion ... when the issue is properly presented in a homicide case.") (relying on In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).

A habeas petitioner who seeks to overturn his conviction based on a claim of error in the jury instructions faces a significant burden. "The question in such a collateral proceeding is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Davis v. Maynard, 869 F.2d 1401, 1405 (10th Cir.1989) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)), vacated sub nom. Saffle v. Davis, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d 756 (1990), rev'd in part on other grounds, 911 F.2d 415 (10th Cir.1990). Of more acute concern, Ellis never requested an instruction on heat of passion, nor did he raise any corresponding due process claim on direct appeal. When he raised the argument for the first time in state postconviction proceedings, the Court of Criminal Appeals held that consideration was barred by Oklahoma procedural law, set forth in Okla. Stat. tit. 22, § 1086. See Walker v. State, 933 P.2d 327, 330-31 (Okla.Crim. App.1997) ("[P]ost-conviction claims which could have been raised in previous appeals but were not are generally considered waived."). This is an independent and adequate state ground for denying habeas relief. Hain v. Gibson, 287 F.3d 1224, 1230 (10th Cir.2002). It prevents us from reviewing Ellis's defaulted claim unless he can demonstrate both "cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).¹

A showing that a defendant received ineffective assistance of counsel will establish cause excusing a procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Here, Ellis argues that his state appellate counsel's failure to raise his present due process challenge to the jury instructions was so unjustifiable as to be constitutionally ineffective.

To demonstrate ineffective assistance of counsel a petitioner must establish both (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unreasonable errors, the outcome of his appeal would have been different. Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct 1495, 146 L.Ed.2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Applying this test requires us to "look to the merits of the omitted [argument]." Hain, 287 F.3d at 1231 (quoting Neill, 278 F.3d at 1057). However, our review of Ellis's claim of ineffective assistance is further constrained. The Oklahoma appellate court considered and rejected the claim in denying postconviction relief. As a federal habeas court we may reverse only if that holding 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)(1) (2000) (defining standard for review of state-court decisions of law in habeas proceedings subject to Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)).

Ellis's due process argument is based on United States v. Lofton, 776 F.2d 918 (10th Cir.1985), in which this court held that "a defendant in a federal murder case who has sufficiently raised a heat of passion defense [is] entitled to instructions informing the jury of the theory of defense and of the Government's duty to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction." Id. at 920. Lofton was tried for murder after killing an estranged husband who abused her daughter. She presented considerable evidence of heat of passion and used it as her only defense against the murder charge. See id. at 919, 921. Noting that Lofton had "sufficiently raised" the defense of heat of passion, the court held that she was entitled to a specific instruction that "advised the jury of [her] defense and its effect on the prosecution's burden of proof." Id. at 920-21.

By the time Ellis's counsel filed a direct appeal, however, subsequent cases had thrown doubt on Lofton's applicability. Lofton was based on Mullaney, in which the Supreme Court held that the prosecution must specifically prove the absence of heat of passion beyond a reasonable doubt when the issue is "properly presented" in a homicide case. 421 U.S. at 704, 95 S.Ct. 1881. Mullaney did not define proper presentment, but the Supreme Court noted that Mullaney's trial counsel had specifically argued that his client was guilty only of heat of passion manslaughter. See id. at 685, 95 S.Ct. 1881. Oklahoma's courts...