Evans v. Ray

• Decision Date: 03 December 2004
• Docket Number: No. 03-6012.,03-6012.
• Citation: 390 F.3d 1247
• Parties: Robert Simpson EVANS, Jr., Petitioner-Appellant, v. Charles RAY, Warden of the Davis Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

390 F.3d 1247

Robert Simpson EVANS, Jr., Petitioner-Appellant, v. Charles RAY, Warden of the Davis Correctional Center, Respondent-Appellee.

No. 03-6012.

United States Court of Appeals, Tenth Circuit.

December 3, 2004.

Steven Michael Presson (Robert W. Jackson with him on the briefs), Jackson & Presson, P.C., Norman, OK, for Petitioner-Appellant.

William R. Holmes, Assistant Attorney General of Oklahoma (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before EBEL, HOLLOWAY, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Robert Simpson Evans, Jr. ("Petitioner") was convicted and sentenced to life imprisonment for first degree child abuse murder. On direct appeal to the state court, Petitioner argued that the retroactive application of Fairchild v. State, 998 P.2d 611 (Okla.Crim.App.1999), which he contends changed the mens rea element of Oklahoma's child abuse murder statute from specific to general intent, violates ex post facto principles as incorporated in the Due Process Clause of the Fourteenth Amendment. The state court disagreed and affirmed his conviction. Petitioner now makes the same argument on federal habeas review. Because we conclude that the state court reasonably applied the Supreme Court's precedent on ex post facto principles regarding judicial rules, we AFFIRM.

BACKGROUND

On November 9, 2000, Petitioner was found guilty of first degree child abuse murder under Okla. Stat. tit. 21, § 701.7(C),¹ and was sentenced to life in prison. The conviction arose out of the death of Petitioner's two-year-old stepson, Daquinlan McKnight, on November 22, 1996, as a result of complications from burns suffered by the child on November 12, 1996. The jury instructions required only general intent, allowing the jury to convict Petitioner if it found that he had acted with the desire to "vex, annoy or injure" the child, even if he did so without "any intent to violate the law."²

On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA), Petitioner argued that the law at the time of his actions in 1996 clearly required specific, not general, intent. Although the OCCA in 1999 construed the child abuse murder statute to require only general intent in Fairchild, 998 P.2d at 622-23, Petitioner insisted that the retroactive application of that decision to his particular case violated ex post facto principles. The OCCA disagreed and affirmed his conviction.

On April 17, 2002, Petitioner filed a petition for habeas corpus in the Western District of Oklahoma, making the same ex post facto argument that he had made before the state appellate court. On December 30, 2002, the district court denied habeas relief.

Petitioner filed a timely notice of appeal and application for certificate of appealability (COA). On July 22, 2003, we granted COA and directed the parties to address Petitioner's ex post facto argument on appeal.

DISCUSSION

I. Jurisdiction

Although Petitioner claims to bring this action under both 28 U.S.C. § 2241 and § 2254, we construe his petition as one under § 2254 because he is challenging the fact of his conviction rather than the execution of his sentence. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000). We review the district court's denial of a § 2254 habeas petition under 28 U.S.C. § 2253.

II. Standard of Review

A petition for habeas corpus brought under § 2254(d) will only be granted if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or if it "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)(1)-(2).

The Supreme Court has clarified that a state court determination is contrary to clearly established Supreme Court precedent where "the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from" the result reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Cannon v. Gibson, 259 F.3d 1253, 1260 (10th Cir.2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1966, 152 L.Ed.2d 1026 (2002) (same).

In examining whether the state court's decision involved an unreasonable application of clearly established federal law as determined by the Supreme Court, it is not enough that the state court applied clearly established federal law erroneously or incorrectly. Rather, the application must be unreasonable. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001) ("The Supreme Court has cautioned `that an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.'") (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495).

We review the district court's factual findings for clear error and its legal basis for dismissal of a habeas petition de novo. Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.2001), cert. denied, 535 U.S. 1034, 122 S.Ct. 1789, 152 L.Ed.2d 649 (2002).

III. Analysis

A. Ex post facto principles as implicated in the retroactive application of judicial decisions

Article I, § 10 of the U.S. Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." U.S. Const. art I, § 10, cl. 1. To fall within the Ex Post Facto Clause, "a law must be retrospective — that is, `it must apply to events occurring before its enactment' — and it `must disadvantage the offender affected by it.'" Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). The Supreme Court long ago described categories of laws that were prohibited by the Ex Post Facto Clause, including laws that criminalize innocent action taken before the passage of the law, as well as laws that inflict a greater punishment than was provided for when the crime was committed. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388-90, 1 L.Ed. 648 (1798). "`The purposes behind the prohibition on ex post facto laws are twofold: to restrain legislatures and courts from arbitrary and vindictive action and to prevent prosecution and punishment without fair warning.'" Devine v. New Mexico Dep't of Corrections, 866 F.2d 339, 344 (10th Cir.1989) (quoting Rubino v. Lynaugh, 845 F.2d 1266, 1272 (5th Cir.1988)).

"The Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (citation omitted); see also Rogers v. Tennessee, 532 U.S. 451, 460, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) ("The Ex Post Facto Clause, by its own terms, does not apply to courts."). However, the rationale of providing fair warning to criminal defendants is inherent in the notion of due process. Bouie v. City of Columbia, 378 U.S. 347, 354-55, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

Although ex post facto principles are thus relevant to the retroactive application of judicial decisions through the due process clause of either the Fifth or the Fourteenth Amendment, the Ex Post Facto Clause is not incorporated wholesale or "jot-for-jot." Rogers, 532 U.S. at 459, 121 S.Ct. 1693. "Extending the Clause to courts through the rubric of due process ... would circumvent the clear constitutional text" and "would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other." Id. at 460, 121 S.Ct. 1693. The Court explained that a court's" `opportunity for discrimination'" is more limited than a legislature's. Id. at 460-61, 121 S.Ct. 1693 (quoting James v. United States, 366 U.S. 213, 247 n. 3, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961) (Harlan, J., concurring in part and dissenting in part)).

Therefore, the prohibition of the ex post facto application of judicial decisions is less extensive than the prohibition of ex post facto statutes. See Wayne R. LaFave, Substantive Criminal Law § 2.4(c) (2d ed.2003). The Rogers Court distilled the ex post facto test for judicial opinions into the following: "[D]ue process limitations on the retroactive application of judicial interpretations of criminal statutes" only apply to those decisions "that are `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'" 532 U.S. at 461, 121 S.Ct. 1693 (quoting Bouie, 378 U.S. at 354, 84 S.Ct. 1697). For example, in Rogers, the Tennessee supreme court had abolished the common law doctrine requiring a murder victim to have died within one year and a day after the defendant's actions before the defendant could be convicted of murder. The Supreme Court held that the retroactive application of the judicial abolition of the "year and a day" rule did not violate due process because the rule itself was not well-established prior to the judicial decision, and thus the abolition of this "common law relic" was not unexpected or indefensible. Rogers, 532 U.S. at 462-64, 121 S.Ct. 1693.

In Bouie, the South Carolina supreme court had construed a trespassing statute to include remaining on the premises after having been asked to leave, even though the "narrow and precise" language of the trespass statute only prohibited "entry" after notice. 378 U.S. at 349, 351-52, 84 S.Ct. 1697. Because such narrow and precise language "lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial...