Esquibel v. Rice, 92-1343

Decision Date07 January 1994
Docket NumberNo. 92-1343,92-1343
Citation13 F.3d 1430
PartiesDonaciano ESQUIBEL, Petitioner-Appellant, v. J. Frank RICE, Dr.; Gale A. Norton, Attorney General, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Andrew C. Heher, Deputy State Public Defender (David F. Vela, Colorado State Public Defender, with him on the brief), Golden, CO, for petitioner-appellant.

Clement P. Engle, Sr. Asst. Atty. Gen., Crim. Enforcement Section (Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., with him on the brief), Denver, CO, for respondents-appellees.

Before BALDOCK, ALDISERT *, and BRORBY, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by Donaciano Esquibel from a denial of a petition for writ of habeas corpus brought under 28 U.S.C. Sec. 2254 requires us to decide if the jury instructions delivered during his trial in Colorado state court on a charge of second degree burglary "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). We are persuaded that there was no constitutional deprivation and affirm the judgment of the district court.

The district court had jurisdiction under Section 2254. The habeas petition was referred to a magistrate judge pursuant to Local Rule 605 of the United States District Court for the District of Colorado. The petition was reviewed de novo by the district court and subsequently denied. We have jurisdiction under 28 U.S.C. Secs. 1291 and 2253. The appeal was timely filed under Rule 4(a)(1) of the Federal Rules of Appellate Procedure.

At Esquibel's state court trial for second degree burglary and theft, the court instructed the jury in Instruction Eight that the elements of second degree burglary were:

"1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. knowingly 4. entered a dwelling 5. with intent to commit therein the crime of theft."

People v. Esquibel, 794 P.2d 1065, 1066 (Colo.App.1990) (emphasis added).

In Instruction Ten, the court told the jury:

"Concerning the charges of Second Degree Burglary and Theft certain words and phrases have a particular meaning: ... 'UNLAWFULLY ENTERS' means a person who enters in or upon premises when he is not licensed, invited, or otherwise privileged to do so."

Id.

In his closing argument, defense counsel told the jury:

[F]orget all the stuff about all the other elements. We'll concede everything except identity. Don't waste your time on that. Identity is the issue. [The prosecutor] was right in that regard. Everything else has been proven beyond a reasonable doubt.

Tr. at 309-10. With the jury receiving the case in this posture, we must determine whether the failure to use the word "unlawfully" in the part of the instruction delineating the elements of second degree burglary constituted a deprivation of Esquibel's constitutional rights, even though the phrase "unlawfully enters" was later used to define the stated elements.

We review de novo a claim of constitutional error in jury instructions. See Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S.Ct. 1490, 108 L.Ed.2d 626 (1990).

I.

Esquibel was charged with second degree burglary and theft. At trial in Colorado state court, witness Kristi Kadlecek testified that at 9:00 a.m. on April 9, 1987 in Greeley, Colorado, she saw Esquibel loitering near her apartment building. According to the witness, Esquibel walked away quickly when he saw her. Thereafter, Kadlecek drove around the block and, upon returning, noticed Esquibel inside her neighbor's apartment. Kadlecek then entered her own apartment and called the police. Before the police arrived, she observed Esquibel leaving her neighbor's apartment and entering his lavender Cadillac. She recorded the license plate number of his automobile and gave it to the police when they arrived on the scene at 9:15 a.m. The police located Esquibel and arrested him at 9:59 a.m. Kadlecek positively identified both Esquibel and his automobile at 10:11 a.m., within an hour of speaking to the police. Kadlecek again identified Esquibel in a police line-up three weeks later and a third time at trial.

Margaret Bothel was the tenant of the apartment in which Esquibel was observed by Kadlecek. She testified that he did not have permission to be in her apartment and that after the incident she discovered that her television was missing. Police officers testified that there were pry marks around the door indicating forcible entry. In his closing argument, the prosecutor emphasized the pry marks and evidence of forcible, unlawful entry.

Esquibel testified in his own defense, stating that at approximately 9:00 a.m. on April 9, he dropped his son off at school in the city of Greeley. He testified that he drove around various places in the Greeley-LaSalle area for the next hour, stopping at his apartment, a McDonald's restaurant and various locations looking for his brother. According to Esquibel, when he arrived home at 9:59 a.m. the police were waiting for him. A defense witness testified that she saw Esquibel in LaSalle at approximately 9:45 a.m.

The defense strategy at trial was to attack Kadlecek's identification of Esquibel. During a colloquy on jury instructions, while arguing for a special instruction on the hazards of eye witness identification, defense counsel stated: "Literally I will concede everything else except identity in closing argument and did essentially so in opening argument." Tr. at 281. At trial, Esquibel did not object to the instructions given to the jury. He was found guilty of second degree burglary and appealed to the Colorado Court of Appeals.

The state appellate court was of the view that the trial court erred by failing to include the term "unlawful entry" when listing the elements of second degree burglary, even though it used the term in defining the elements. Because Esquibel failed to object to the instruction at trial, however, the court applied the plain error standard of review, holding that "the failure to include the term 'unlawful entry' in the second degree burglary instruction does not rise to the level of plain error. The error is harmless beyond a reasonable doubt." Esquibel, 794 P.2d at 1066. The Colorado Supreme Court refused to grant certiorari, letting stand the Court of Appeals ruling.

Thereafter, Esquibel filed a petition for a writ of habeas corpus pursuant to Section 2254. The action was referred to a magistrate judge who recommended denial of the petition, concluding that an examination of the trial record "shows that the omission of the element of 'unlawful entry' from the jury instruction did not render the trial so fundamentally unfair that Mr. Esquibel was denied a fair trial in a constitutional sense." Esquibel v. Rice, No. 91-B-1488 (D.Colo. May 13, 1992) (Amnd. Rec. of Mag. Schlatter). On October 7, 1992 the district court adopted the findings of the magistrate and denied the petition.

Esquibel now appeals to this court. He raises a total of seven issues in his brief that may be distilled to two basic contentions: The trial court failed to use the term "unlawfully" in conjunction with the word "enters" in listing the elements of second degree burglary, even though it used the term "unlawfully enters" in defining the term "enters"; this failure (1) denied Esquibel rights protected by the due process clause and (2) the denial of these rights could not be considered harmless error, because they are rights guaranteed by the Sixth and Fourteenth Amendments under Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). Because this is federal habeas corpus and the infirmity alleged is limited to the jury instructions at the state trial, our review is quite limited:

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," Cupp v. Naughten, 414 U.S., at 147 , not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146 .

Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977). To be sure, if we conclude that there was no due process violation, we do not meet the question of harmless error.

II.

In determining whether the district court properly dismissed Appellant's habeas petition, it is helpful to understand what is not before us.

A.

The Colorado Court of Appeals determined that "the failure to include the term, 'unlawful entry' in the second degree burglary instruction does not rise to the level of plain error. The error is harmless beyond a reasonable doubt." Esquibel, 794 P.2d at 1066. Because that court relied on People v. Rodgers, 756 P.2d 980 (Colo.1988), we must conclude that it utilized a federal constitutional law analysis in its laconic discussion.

Whether or not the Colorado Court of Appeals' analysis was premised on federal law, a federal court does not review the decision of a state appellate court when entertaining a petition for habeas corpus. Rather, a federal court's inquiry is limited to the lawfulness of the present detention of a state prisoner. The federal habeas corpus statute permits a federal court to entertain a habeas petition on behalf of a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254(a). In the felicitous expression of Justice Brennan, the "jurisdictional prerequisite is not the judgment of a state court but detention simpliciter." Fay v. Noia, 372 U.S. 391, 430, 83 S.Ct. 822, 844, 9 L.Ed.2d 837 (1963). We...

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