Harvey v. Shillinger, 95-8011

• Decision Date: 26 February 1996
• Docket Number: No. 95-8011,95-8011
• Citation: 76 F.3d 1528
• Parties: Jetty Lee HARVEY, Petitioner-Appellant, v. Duane SHILLINGER, Warden, Wyoming State Penitentiary; Attorney General of the State of Wyoming, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1528

76 F.3d 1528

Jetty Lee HARVEY, Petitioner-Appellant, v. Duane SHILLINGER, Warden, Wyoming State Penitentiary;

Attorney General of the State of Wyoming,

Respondents-Appellees.

No. 95-8011.

United States Court of Appeals, Tenth Circuit.

Feb. 26, 1996.

Mary Beth Wolff (William U. Hill, Attorney General with her on the briefs), Special Assistant Attorney General, Cheyenne, Wyoming, for appellees.

Howard A. Pincus (Michael G. Katz, Federal Public Defender with him on the briefs), Assistant Federal Public Defender, Denver, Colorado, for appellant.

Before KELLY, BARRETT and JONES ^*, Circuit Judges.

BARRETT, Senior Circuit Judge.

Jetty Lee Harvey (Harvey) appeals from the district court's order of February 1, 1995, Harvey v. Shillinger, 893 F.Supp. 1021 (D.Wyo.1995) (Harvey III ), dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Facts

On January 9, 1986, Harvey and two others were charged in the District Court, Third Judicial District, Sweetwater County, Wyoming, with kidnapping and sexual assault in the first degree or aiding and abetting in those offenses. Following a three-day jury trial in July, 1987, Harvey was convicted of all charges. At sentencing, on October 23, 1987, the trial court asked Harvey if he had anything to say in mitigation of punishment. After being sworn in, Harvey made an allocution statement to the trial court under oath. He was subsequently sentenced to not less than twenty years nor more than thirty years imprisonment on each charge, to run concurrently.

On direct appeal to the Wyoming Supreme Court, Harvey's convictions were vacated on speedy trial grounds. See Harvey v. State, 774 P.2d 87 (Wyo.1989) (Harvey I ).

On July 7, 1989, Harvey was charged with conspiracy to commit kidnapping and conspiracy to commit sexual assault. After a plea agreement fell through and the Wyoming Supreme Court denied a writ of prohibition, Harvey proceeded to trial on the conspiracy charges. At trial, the prosecution read portions of Harvey's allocution statement made at his first sentencing hearing in evidence, including the following:

I meant this woman no harm. In fact, I even stopped her from being harmed at the end. But before that, there was--I even tried stopping. I tried resisting long before she was even abducted. Everett was just insistent from two blocks past her to two blocks to her, telling me to grab her. Grab her. And I was saying, 'No. I don't want this.' And even when I pulled up beside her and I rolled down my window, she walked by. I just asked her if she wanted a ride because it was cold. She never looked at me. She never answered. She just kept her head down, her hands in her coat pocket and she walked by. And I turned to Everett and I said, 'See, she doesn't even want a ride.' And he says, 'No. All you got to do is grab her.' He throws it into reverse and backs up past the woman, slapping me, 'Just grab her. Grab her.' And that's when I finally broke down on it there. I got out and stepped out in front of her. She walked up to me, lifted her head, looked at me and I said, 'Hey, look. Just get in and we'll give you a ride home.' And she turned and walked around me. And that's when I heard Everett say, 'Grab her, chicken shit.' And that was the final straw of the dare.

I turned and grabbed her by the coat, the shoulder, pulled her off her feet toward the pickup. Picked her up and put her in the vehicle. She was laying between the seats with her hands up like this. She was saying, 'Don't hurt me.' I said, 'No one is going to hurt you.' She relaxed. I turned back to roll up my window and she starts kicking the dash with her boots and hollering, 'Don't hurt me. Don't hurt me.' I grabbed her legs by the boots and I said, 'Don't worry. No one is going to hurt you.' ¹

And then Everett Phillips--I don't know where we were going. He pulls into this trailer park and start hollering, 'I want some. I want some.' I says, 'No, Everett. Let's take the woman home.' And he goes, 'Well, the bitch can suck it.' And I grabbed his arm then and I said, 'No, Everett. We're taking her home. Let's go.' And that is when I saw a cop car go by through the window. And I said, 'Now there is a cop. Let's just take her home.'

And when we stopped, the cops, I didn't even know it was cops. I could see lights in the mirror. Everett got out and went back to them. He was gone for, anyway, two minutes and there was no struggle in the back. There was no one hollering, screaming. I just looked in the mirror. And then as I'm looking in the mirror back a couple of minutes or so, this woman, Sharon Brouillette, she got between the seats and started headed for the driver's door. And I just stepped out of the truck. And the police officer told me to stop and put my hands on the camper. That's just what I done until after the fight with David Swazo. They cuffed us and took us to jail. But, at the time of all of this, there was a real--there was a big factor too of very drunk.

(Exhibits to Motion to Supplement the Record, Exhibit B at 1168-1170).

On January 17, 1990, following a jury trial, Harvey was convicted of conspiracy to commit kidnapping and acquitted of conspiracy to commit sexual assault. He was sentenced to twelve to fifteen years in the Wyoming State Penitentiary.

Harvey appealed his conspiracy conviction to the Wyoming Supreme Court alleging, inter alia, double jeopardy, speedy trial violation, violation of right to an impartial jury, and improper use of his allocution statement. On June 11, 1992, the Wyoming Supreme Court affirmed his conspiracy conviction. See Harvey v. State, 835 P.2d 1074 (Wyo.), cert. denied, 506 U.S. 1022, 113 S.Ct. 661, 121 L.Ed.2d 586 (1992) (Harvey II ).

On April 5, 1993, Harvey petitioned the federal district court for a writ of habeas corpus alleging: improper use of his allocution statement made at the sentencing phase of his first trial; ineffective assistance of counsel at his first sentencing; denial of his right to speedy trial; double jeopardy; and Wyoming Supreme Court Justice Thomas' participation in the second appeal violated "fundamental fairness" principles.

On February 1, 1995, the district court dismissed Harvey's petition. See Harvey III, 893 F.Supp. 1021. The district court found that: the use of Harvey's allocution statement at his conspiracy trial was not error because he "voluntarily, knowingly, and intelligently waived his right against self-incrimination at his first sentencing hearing," id. at 1030; Harvey's was not denied effective assistance of counsel; "prosecution of [Harvey] on conspiracy charges after his conviction for the substantive offenses, does not violate double jeopardy principles," id. at 1032; Harvey's right to a speedy trial was not violated; and Justice Thomas' participation in Harvey's direct appeal did not violate his right to due process. We agree.

Issues

On appeal, Harvey contends that the district court erred in dismissing his petition for a writ of habeas corpus because: (1) his conspiracy conviction violated the principles of double jeopardy; (2) his Sixth Amendment right to a speedy trial was violated; (3) the use of his allocution statement violated his Fifth Amendment and Fourteenth Amendment rights; and (4) trial counsel's failure to advise him of the consequences of making an allocution statement at his first sentencing hearing deprived him of his Sixth Amendment right to effective assistance of counsel. ²

We review a district court's legal conclusions in dismissing a petition for a writ of habeas corpus de novo. Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir.1993). "Legal conclusions and mixed questions of law and fact are reviewed de novo, although findings of fact underlying mixed questions are accorded the presumption of correctness." Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir.1992).

Discussion

I. Double Jeopardy

Harvey contends that his second trial and conviction for conspiracy to commit kidnapping after the Wyoming Supreme Court vacated his convictions for kidnapping and sexual assault violates the Double Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." In United States v. Felix, 503 U.S. 378, 380-81, 112 S.Ct. 1377, 1379, 118 L.Ed.2d 25 (1992), the Supreme Court held that "prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause." See also Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946) ("[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses ... [a]nd the plea of double jeopardy is no defense to a conviction for both offenses.").

Accordingly, we hold that prosecuting Harvey on conspiracy charges after his convictions for the substantive offenses were vacated did not violate his right to be protected from double jeopardy.

II. Speedy Trial

Harvey contends that he was denied his Sixth Amendment right to a speedy trial by the delay between his original arrest on the substantive offenses on January 5, 1986, and his second trial on the conspiracy charges on January 8, 1990.

"A Sixth Amendment speedy trial claim is assessed by balancing the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial, and whether the delay prejudiced the defendant." United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.1994) (quoting United States v. Tranakos, 911 F.2d 1422, 1427 (10th Cir.1990)). See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972) (identifying four factors in speedy trial balancing test). While no single factor is "either a necessary or sufficient condition to the finding of a...