Hawes v. Pacheco

• Decision Date: 10 August 2021
• Docket Number: No. 19-8047,19-8047
• Citation: 7 F.4th 1252
• Parties: Gregory M. HAWES, Petitioner - Appellant, v. Michael PACHECO, Warden, Wyoming State Penitentiary; Wyoming Attorney General, Respondents - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

7 F.4th 1252

Gregory M. HAWES, Petitioner - Appellant,

v.Michael PACHECO, Warden, Wyoming State Penitentiary; Wyoming Attorney General, Respondents - Appellees.

No. 19-8047

United States Court of Appeals, Tenth Circuit.

FILED August 10, 2021

John C. Arceci, Assistant Federal Public Defender, Denver, Colorado, (Virginia L. Grady, Federal Public Defender, Denver, Colorado, with him on the briefs; and Gregory M. Hawes, pro se, Rawlins, Wyoming), for Petitioner – Appellant.

Jenny L. Craig, Deputy Attorney General, Cheyenne, Wyoming, for Respondents – Appellees.

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

Wyoming state prisoner Gregory Hawes appeals the dismissal of his habeas corpus petition filed under 28 U.S.C. § 2254 to challenge his kidnapping conviction.This court granted a certificate of appealability ("COA") on the issue of whether application of the Wyoming kidnapping statute to him was constitutional under the Sixth and Fourteenth Amendments.

Under the statute, whether a kidnapping ends with a "safe release" of the victim can affect the defendant's sentence.At trial, the state district court imposed the burden to show safe release on Mr. Hawes.The jury found that he had not proved safe release, which subjected him to higher statutory minimum and maximum sentences.A state court denied his post-conviction challenge to the imposition of this burden.It relied on Wyoming Supreme Court decisions holding that a kidnapping defendant must prove safe release rather than the prosecution having to prove lack of safe release.

Mr. Hawes argues the Wyoming court's application of the statute violated his Sixth and Fourteenth Amendment rights under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), andMullaney v. Wilbur , 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508(1975).He makes colorable arguments, but he does not surmount the habeas restrictions that require us to (1) give deference to the state court's application of Supreme Court law under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and (2) accept the state court's interpretation of state law.Exercising jurisdiction under 28 U.S.C. § 1291and28 U.S.C. § 2253(a) and (c)(1)(A), we affirm.

I.BACKGROUND

A.Legal Background

1.Federal Law

a. U.S. Constitution

The Sixth Amendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury."U.S. Const. amend. VI.The Fourteenth Amendment guarantees that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law."U.S. Const. amend. XIV."Taken together, these rights indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ "Apprendi v. New Jersey , 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000)(alteration in original)(quotingUnited States v. Gaudin , 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444(1995) );seeIn re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368(1970)("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").

b. United States Supreme Courtcases

Four Supreme Court decisions are relevant to this appeal.

i. Mullaney

In Mullaney v. Wilbur , 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508(1975), the Supreme Court considered whether Maine's murder statute met the constitutional due process requirement that the state must prove every element of a criminal offense beyond a reasonable doubt.Seeid. at 684-85, 95 S.Ct. 1881.Under Maine law, murder required malice aforethought.Seeid. at 686, 95 S.Ct. 1881 n.3.Without malice aforethought, a "homicide would be manslaughter."Seeid. at 686, 95 S.Ct. 1881.In practice, "if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation."Id. at 686, 95 S.Ct. 1881.

The Court found this burden shifting unconstitutional.It "h[e]ld that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case."Id. at 704, 95 S.Ct. 1881.

ii.Patterson

Two years later, in Patterson v. New York , 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281(1977), the Court again considered the constitutionality of allocating a burden of proof to a criminal defendant.New York's homicide statute allowed a murder defendant"to raise an affirmative defense that he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse."Id.(quotations omitted)."[T]he defendant had the burden of proving his affirmative defense by a preponderance of the evidence."Id. at 200, 97 S.Ct. 2319.Doing so would reduce the offense from second-degree murder to manslaughter.Seeid. at 198-99, 97 S.Ct. 2319.

The Court found this scheme constitutionally permissible.It "decline[d] to adopt as a constitutional imperative ... that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused."Id. at 210, 97 S.Ct. 2319.The Court thus held that "the prosecution[must] prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged," but "[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required."Id.¹

iii.Apprendi

Nearly 25 years later, in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), the Court addressed what facts needed to be proved beyond a reasonable doubt based on their sentencing impact.In Apprendi , the defendant pled guilty to a firearms offense that carried a maximum statutory punishment of 10 years in prison.Seeid. at 468-70, 120 S.Ct. 2348.After the defendant entered his plea, the trial judge found by a preponderance of the evidence that the defendant intended to intimidate his victims because of their race, and thus enhanced his sentence under a separate hate crime statute.Seeid. at 468-71, 120 S.Ct. 2348.Under this statute, the defendant's maximum statutory punishment was 20 years.Seeid. at 469, 120 S.Ct. 2348.

The Court found the defendant's Sixth and Fourteenth Amendment rights had been violated.Seeid. at 476, 497, 120 S.Ct. 2348.It stated: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."Id. at 490, 120 S.Ct. 2348.

iv.Alleyne

More recently, in Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), the Court extended its Apprendi holding.Seeid. at 111-12, 133 S.Ct. 2151.In Alleyne , a jury convicted the defendant of "using or carrying a firearm in relation to a crime of violence."Seeid. at 103-04, 133 S.Ct. 2151.The statute of conviction required a mandatory minimum sentence of five years of imprisonment, but if the firearm was "brandished," it required a mandatory minimum of seven years.Seeid.(quoting18 U.S.C. § 924(c)(1)(A)(ii) ).The jury's findings did not indicate that the firearm was "brandished."Seeid. at 104, 133 S.Ct. 2151.But the sentencing judge determined it was, and thus applied the seven-year mandatory minimum.Seeid.

The Court found a constitutional violation.Seeid. at 117, 133 S.Ct. 2151." Apprendi concluded that any ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime."Id. at 111, 133 S.Ct. 2151(quotingApprendi , 530 U.S. at 490, 120 S.Ct. 2348 ).But "the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum."Id. at 112, 133 S.Ct. 2151."[T]he essential Sixth Amendment inquiry is whether a fact is an element of the crime."Id. at 114, 133 S.Ct. 2151.And "[w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury."

Id. at 114-15, 133 S.Ct. 2151."Juries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty."Id. at 113 n.2, 133 S.Ct. 2151."Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt."Id. at 117, 133 S.Ct. 2151.

To summarize, "[t]he essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime.It must, therefore, be submitted to the jury and found beyond a reasonable doubt."Id. at 115-16, 133 S.Ct. 2151.

2.Wyoming Law

a. Kidnapping statute

Section 6-2-201 of the Wyoming criminal code addresses "Kidnapping; penalties; effect of release of victim."Wyo. Stat. § 6-2-201.It provides:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:

(i) Hold for ransom or reward, or as a shield or hostage;

(ii)Facilitate the commission of a felony; or

(iii)Inflict bodily injury on or to terrorize the victim or

...