Hernandez v. Starbuck

• Decision Date: 09 November 1995
• Docket Number: No. 94-8086,94-8086
• Citation: 69 F.3d 1089
• Parties: Rudy HERNANDEZ, Petitioner-Appellant, v. Gary STARBUCK, Superintendent of the Wyoming Honor Farm; Attorney General of the State of Wyoming, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1089

69 F.3d 1089

Rudy HERNANDEZ, Petitioner-Appellant, v. Gary STARBUCK, Superintendent of the Wyoming Honor Farm Attorney General of the State of Wyoming Respondents-Appellees.

No. 94-8086.

United States Court of Appeals Tenth Circuit.

Nov. 9, 1995.

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender with him on the brief), Denver, Colorado, for Petitioner-Appellant.

Paul S. Rehurek, Senior Assistant Attorney General, Cheyenne, Wyoming, for Respondents-Appellees.

Before MOORE, ANDERSON and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Hernandez appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We exercise jurisdiction under 28 U.S.C. Secs. 2253 and 1291. ¹

In January 1993, Mr. Hernandez pleaded guilty to drug charges in Wyoming district court. According to the original sentencing transcript, the court orally imposed the following sentence: "It's the judgment and sentence of the Court today you're [sentenced] to not more than four years and less than two years to the Wyoming State Penitentiary." The court later filed a judgment and sentence imposing a sentence of "not less than four (4) years nor more than six (6) years."

In May 1993, Mr. Hernandez filed a motion in state court to amend his judgment and sentence, requesting he be given credit for one year prison time he had already served in state prison in connection with another drug charge. The state court denied this motion shortly after it was filed. In September 1993, the state court, perhaps not remembering it had already ruled on Mr. Hernandez's motion, reviewed Mr. Hernandez's file to determine whether his sentence should be amended. During this review, the court discovered the discrepancy between the sentencing transcript and the judgment and sentence. It stated the official transcript was "clearly erroneous because it was my intent, and I believe my statement, that the sentence imposed was not less than four nor more than six years," and notified Mr. Hernandez and the State of Wyoming it intended to amend the transcript to reflect the higher sentence. The court set the matter for hearing, directed Mr. Hernandez to show cause why the alteration should not be made, and appointed a public defender to assist Mr. Hernandez in the matter. Neither Mr. Hernandez nor his public defender responded to the order to show cause. Apparently without holding the scheduled hearing, the judge amended the sentencing transcript to reflect a sentence of four to six years.

Mr. Hernandez presented his only state challenge to the Wyoming District Court's actions in a petition to the Wyoming Supreme Court for writ of review. ² The petition asserted:

In this case, a conflict existed between the district court's ... oral pronouncement of sentence and the written Judgment and Sentence. This Court has repeatedly held that an orally pronounced sentence governs over a subsequent, inconsistent written judgment when the two conflict. The case must be remanded to accurately reflect what was unambiguously pronounced at the sentencing hearing.

As the transcript unambiguously shows in this case, the oral pronouncement at sentencing reflects a sentence of not less than two nor more than four years to be served at the Wyoming State Penitentiary. Ten months later, the [trial] court, on its own initiative, amended the written record to reflect a sentence of not less than four nor more than six years. This modification is clearly improper. The Petitioner has the right to expect that his sentence is final when it is pronounced in open court. It is an abuse of discretion for the district court to modify this sentence almost a year later to reflect a two year increase. It subjects the Petitioner to double jeopardy in that he is being punished twice for the same offense.

(Citations omitted.) The Wyoming Supreme Court denied Mr. Hernandez's petition without comment. Mr. Hernandez then filed a petition for a writ of habeas corpus in federal district court. The district court construed Mr. Hernandez's petition to allege "he was denied effective assistance of counsel and deprived of due process when the state court" amended the sentencing transcript to reflect the higher sentence. The district court rejected Mr. Hernandez's due process claim both on the merits and because he failed to fairly present the claim to the Wyoming Supreme Court. The court also rejected Mr. Hernandez's ineffective assistance of counsel claim, but its order did not specify the grounds for the decision or whether the dismissal of that claim was with or without prejudice.

Mr. Hernandez now contends the district court erred when it denied his petition. He claims the original transcript reflected his true sentence and, by changing it, the state court violated several constitutional provisions, including the right to effective assistance of counsel, the Confrontation Clause, due process, and the right not to be subjected to double jeopardy. Because Mr. Hernandez has not exhausted his state court remedies, we do not address the merits of his claims.

"An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. Sec. 2254(b). This principle, known as the doctrine of exhaustion, requires a state prisoner to fairly present his federal constitutional claims to the state courts before he may raise those claims in a federal habeas corpus petition. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). The exhaustion requirement reflects a policy of comity, whereby a federal court will not interfere with a state court conviction without giving the state courts an opportunity to correct any alleged constitutional violations. Picard, 404 U.S. at 275-76, 92 S.Ct. at 512-13. Steadfast adherence to this policy protects state courts' role in the enforcement of federal law. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). A state prisoner bears the burden of showing he has exhausted available state remedies. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992).

We begin with Mr. Hernandez's claim he received ineffective assistance of counsel. It is undisputed no appearance was entered on his behalf in response to the state court's order to show cause why the sentencing transcript should not be altered. Mr. Hernandez's petition to the Wyoming Supreme Court did not raise this issue. In fact, in his brief to this court, Mr. Hernandez concedes he "did not raise [the] ineffective assistance claim in the state courts." Thus, Mr. Hernandez did not fairly present the claim to the Wyoming state courts as required under Picard, 404 U.S. at 275-76, 92 S.Ct. at 512-13. Mr. Hernandez, nevertheless, contends we should reach the merits of his ineffective assistance claim. He argues the State of Wyoming has waived the exhaustion defenses by not asserting it properly.

First, Mr. Hernandez contends the State did not assert the exhaustion defense in district court in response to his claim of ineffective assistance of counsel. Second, he asserts that even if the State raised exhaustion as a defense in district court, it has now waived the defense on appeal by failing to reassert it in its answer brief to this court.

In response to Mr. Hernandez's first argument, we find the State of Wyoming properly asserted the exhaustion defense in district court. Paragraph 14 of the State of Wyoming's Answer filed in district court states, "if a federal right is involved, petitioner has failed to exhaust state remedies."

In making his second waiver argument, Mr. Hernandez correctly notes the State of Wyoming's brief in this court only addresses his ineffective assistance claim on the merits. The brief does not reassert the exhaustion defense raised in district court. Mr. Hernandez contends a state can waive the exhaustion defense by not asserting it at the appellate level, even after properly raising the defense in district court.

We reject Mr. Hernandez's contention. The exhaustion requirement is not one to be overlooked lightly. Principles of comity and federalism demand that the requirement be "strictly enforced." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674; see Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (the exhaustion requirement "is principally designed to protect the state courts' role in the enforcement of federal law"). However, the doctrine of exhaustion is not jurisdictional; a prisoner's failure to exhaust his state remedies does not take away the federal courts' power to hear the prisoner's federal claims. Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 1673, 95 L.Ed.2d 119 (1987); Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984). In a logical extension of this principle, the Supreme Court has recognized a state can waive the exhaustion defense:

When the State answers a habeas corpus petition, it has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies.

....

... [T]here are exceptional cases in which the State fails, whether inadvertently or otherwise, to raise an arguably meritorious nonexhaustion defense. The State's omission in such a case makes it appropriate for the court of appeals to take a fresh look at the issue. The court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim.

Granberry, 481 U.S. at 134, 107 S.Ct. at 1675.

In keeping with Granberry, we have held, "[w]hen the [state] fail[s] to assert an exhaustion...