Hopkinson v. Shillinger

• Decision Date: 24 October 1989
• Docket Number: No. 86-2571,86-2571
• Citation: 888 F.2d 1286
• Parties: Mark A. HOPKINSON, Petitioner-Appellant, v. Duane SHILLINGER, and the Attorney General of the State of Wyoming, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1286

888 F.2d 1286

Mark A. HOPKINSON, Petitioner-Appellant, v. Duane SHILLINGER, and the Attorney General of the State of

Wyoming, Respondents-Appellees.

No. 86-2571.

United States Court of Appeals, Tenth Circuit.

Oct. 24, 1989.

Rehearing Denied Dec. 1, 1989.

Daniel J. Sears, Denver, Colo. (Leonard D. Munker, Public Defender, and Norm Newlon, Asst. Public Defender, State of Wyo., Cheyenne, Wyo., with him on the briefs), for petitioner-appellant.

Terry L. Armitage, Asst. Atty. Gen. (Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., with him on the briefs), State of Wyo., Cheyenne, Wyo., for respondents-appellees.

Before HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

ON REHEARING EN BANC

STEPHEN H. ANDERSON, Circuit Judge.

Mark A. Hopkinson was convicted in Wyoming State Court on four counts of first degree murder and two counts of conspiracy to commit first degree murder. The first three counts of murder arose out of his hiring Michael Hickey to bomb Vincent Vehar's home. That bombing killed Vehar, Vehar's wife, and one of his sons; another son was injured in the blast but survived. The fourth murder count was for procuring the killing of Jeff Green. Hopkinson was sentenced to life imprisonment for each of the Vehar murders, and to death for the murder of Green. See Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982) (Hopkinson I ). Hopkinson was also convicted in the same trial of conspiracy with Harold James Taylor to commit the first degree murder of Vehar and conspiracy with Hickey to commit the first degree murder of William Roitz.

On appeal Hopkinson's death sentence for the murder of Green was vacated by the Wyoming Supreme Court. Id. A second sentencing proceeding was conducted and Hopkinson was again sentenced to death. The Wyoming Supreme Court affirmed that sentence. Hopkinson v. State, 664 P.2d 43 (Wyo.), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) (Hopkinson II ). After subsequent unsuccessful challenges in state court ¹ Hopkinson sought federal habeas relief with respect to his convictions for first degree murder and his sentence of death. His petition was summarily dismissed by the district court. Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986).

A panel of this court unanimously affirmed the district court on virtually all issues, and affirmed with one dissent on the subject matter of this en banc review. Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.1989), reh'g granted, March 23, 1989. The court thereafter agreed to consider en banc whether certain remarks by the prosecutor in the second sentencing proceeding violated the rule set out in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and, if so, the standard of review to be applied to such a violation, and whether applying that standard Hopkinson's death sentence must be vacated. The court also directed the parties to address whether Caldwell can be applied retroactively to this case. See Teague v. Lane, --- U.S. ----, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). On the latter question we conclude that Caldwell does apply. On the former, we hold that Hopkinson's death sentence was not imposed unconstitutionally.

I.

Because Caldwell was decided in 1985, two years after Hopkinson's second capital sentence became final, principles of nonretroactivity may apply to this collateral review. See Teague v. Lane, --- U.S. ----, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). However, we must decide first whether the issue is properly before us.

A.

The state has interposed no defense to the Caldwell issue on nonretroactivity grounds, thus raising a preliminary question of waiver. See opinions of Justices Brennan and Blackmun respectively accompanying and dissenting to remand in Zant v. Moore, --- U.S. ----, 109 S.Ct. 1518, 103 L.Ed.2d 922 (1989); Penry v. Lynaugh, 109 S.Ct. at 2963 (Stevens, J., concurring and dissenting in part). We hold that the nonretroactivity defense is not waived, and should be considered.

Our analysis of retroactivity in this case is based upon and dictated by the "novel threshold test for federal review of state criminal convictions," announced in Teague. Teague v. Lane, 109 S.Ct. at 1084 (Brennan, J., dissenting). It was not previously available to the state. Arguably, the state could have raised the defense of nonretroactivity on other grounds, but they would have been largely irrelevant to the analysis required by Teague. Furthermore, the retroactivity approach adopted in Teague was not applied in the capital sentencing context until June of this year. Penry v. Lynaugh, 109 S.Ct. at 2944. Finally, and more fundamentally, we sua sponte raised the issue in this case because the very scope of the writ of habeas corpus, and therefore our power to grant relief, is implicated. Cf. Teague v. Lane, 109 S.Ct. at 1069. Pursuant to our order, the parties have fully briefed the question.

B.

Under Teague, new rules cannot be applied in cases on collateral review, including capital cases, unless they fall into one of two exceptions. Teague v. Lane, 109 S.Ct. at 1073, 1075; Penry v. Lynaugh, 109 S.Ct. at 2944.

The initial question, therefore, is whether Caldwell erected a "new rule" when it declared that "[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell v. Mississippi, 472 U.S. at 328-29, 105 S.Ct. at 2639.

In Penry the Supreme Court described "new rules" as follows:

"As we indicated in Teague, '[i]n general ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.' [Teague v. Lane, 109 S.Ct. at 1070.] Or, '[t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.' Ibid. (emphasis in original). Teague noted that '[i]t is admittedly often difficult to determine when a case announces a new rule.' Ibid. Justice Harlan recognized 'the inevitable difficulties that will arise in attempting "to determine whether a particular decision has really announced a 'new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." ' [Mackey v. United States, 401 U.S. 667, 695, 91 S.Ct. 1160, 1181, 28 L.Ed.2d 404 (1971) ] (separate opinion of Harlan, J.) (quoting Desist v. United States, 394 U.S. 244, 263 [89 S.Ct. 1030, 1041, 22 L.Ed.2d 248] (1969) (Harlan, J., dissenting)."

Penry v. Lynaugh 109 S.Ct. at 2944.

Applying the "breaks new ground" description to the subject matter of Caldwell as a general proposition, the initial impulse is that it is not a novel constitutional idea that a jury should understand its role and responsibility in a capital sentencing proceeding.

                The majority opinion in Caldwell does not state that it is announcing a new rule.  That opinion also points out, and Hopkinson reminds us, that state supreme courts have routinely considered it error for a prosecutor to mislead a jury into thinking that the ultimate determination of death rests with others.  Caldwell v. Mississippi, 472 U.S. at 333-34, 105 S.Ct. at 2641-42.    Appellant's Brief on Issue of Retroactivity at 7.  Thus, Hopkinson reasons, a constitutional rule on the point would not break new ground and it would not impose a new obligation on the states.  See Dugger v. Adams, --- U.S. ----, n. 3, 109 S.Ct. 1211, n. 3, 103 L.Ed.2d 435 (1989)
                

However, we effectively reached a different conclusion in our recent decision in Dutton v. Brown, 812 F.2d 593, 596 (10th Cir.) (en banc), cert. denied, 484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987). In Dutton, a Caldwell issue was raised for the first time in a federal habeas proceeding challenging a death sentence imposed in state court. Although failure to raise the issue in state court constituted a procedural default, we held that cause for the default existed on the ground that Caldwell announced a new rule. Our language in Dutton does not suggest that Caldwell was dictated by past precedent:

"We believe cause existed for the procedural default because trial counsel, at the time of trial in 1979, could not have known that the prosecutor's remarks might have raised constitutional questions. The law petitioner relies on did not become established until the Caldwell decision in 1985. We cannot expect trial counsel 'to exercise extraordinary vision or to object to every aspect of the proceeding in the hope that some aspect might mask a latent constitutional claim.' Engle v. Isaac, 456 U.S. 107, 113, 102 S.Ct. 1558, 1564, 71 L.Ed.2d 783 (1982). In Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984), the Court ruled that cause exists for defense counsel's failure to raise an issue when a subsequent Supreme Court decision articulates a constitutional principle that had not been recognized previously. Consequently, the failure of counsel to raise a constitutional issue reasonably unknown to him satisfied the 'cause' requirement. Id. at 14, 104 S.Ct. at 2909."

Id. at 596 (emphasis added).

Echoing the notion that Caldwell was "new," the dissent to the panel opinion in this case comforted the trial court and the prosecution with regard to the alleged error by saying: "In fairness to the court and counsel, the sentencing proceeding was three years before Caldwell was decided...." Hopkinson v. Shillinger, 866 F.2d at 1238 (Logan, J., dissenting).

We are not alone in the view expressed in Dutton that the novelty of Caldwell 's Eighth...