Huffman v. Ricketts

• Decision Date: 28 December 1984
• Docket Number: No. 84-1847,84-1847
• Citation: 750 F.2d 798
• Parties: Scott Kevin HUFFMAN, Plaintiff-Appellee, v. James RICKETTS, Director of Arizona Department of Corrections, David Christensen, Superintendent of Arizona Department of Corrections, Rincon Unit, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 798

750 F.2d 798

Scott Kevin HUFFMAN, Plaintiff-Appellee, v. James RICKETTS, Director of Arizona Department of

Corrections, David Christensen, Superintendent of

Arizona Department of Corrections,

Rincon Unit, Defendants-Appellants.

No. 84-1847.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1984.

Decided Dec. 28, 1984.

Stephen M. Weiss, Whitehill, Stolkin, Karp, West, Weiss & Berger, Tucson, Ariz., for plaintiff-appellee.

Greg A. McCarthy, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellants.

Appeal from the United States District Court for the District of Arizona.

Before MERRILL, GOODWIN, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Appellants James Ricketts, Director of the Arizona Department of Corrections, and David Christensen, Superintendent of the Arizona Correctional Training Center, Rincon Unit (hereinafter "Arizona") where appellee Scott Kevin Huffman (hereinafter Huffman) was confined at the time he filed this action for habeas corpus relief, seeks reversal of district court's order which requires that Huffman be resentenced or granted a new trial.

I

Arizona law provides that if a defendant is found to have used a dangerous weapon in a manslaughter offense, he can be found to be guilty of reckless manslaughter with enhanced punishment. In his petition, Huffman requested that the district court enter an order "that the judgment of guilt entered against Petitioner be vacated, made void, and annulled" on due process grounds because the jury at his trial for Reckless Manslaughter was instructed by the Arizona State Court that "driving under the influence of intoxicating liquor is an act inherently dangerous to human life and safety." The district court concluded that this instruction "violated the Fourteenth Amendment's requirement that the state prove every element of a criminal offense beyond a reasonable doubt." The district court also concluded, however, that the conviction was not subject to reversible error because it could be read as conviction for unenhanced manslaughter as distinguished from reckless manslaughter and so read, was not tainted by the instruction.

II

Arizona has presented two issues for review:

One. Is Huffman precluded from federal habeas corpus relief because he failed to object to the giving of the challenged instruction as required under Arizona law?

Two. Did the challenged instruction reduce the state's burden of proving that Huffman used a dangerous instrument?

We discuss each contention and the facts pertinent thereto under separate headings.

III

A. Applicability of the Contemporaneous Objection Rule

Arizona argues that Huffman is barred from attacking the instruction on federal constitutional grounds because he failed to comply with Rule 21.3(c) of the Arizona Rules of Criminal Procedure. ¹ Rule 21.3(c) provides:

No party may assign as error on appeal the court's giving or failing to give any instruction or portion thereof or to the submission or the failure to submit a form of verdict unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

Ariz.Rev.Stat.Ann., Rule 21.3(c) (1973).

Arizona also argues that the Supreme Court's decision in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) bars consideration of Huffman's claim by a federal court.

In Engle v. Isaac, the Supreme Court noted that "respondents, who failed to comply with an Ohio rule mandating contemporaneous objections to jury instructions, may not challenge the constitutionality of those instructions in a federal habeas proceeding." Id. at 110, 102 S.Ct. at 1562. The Court further noted that the Ohio Supreme Court rejected Isaac's challenge to the trial court's burden of proof instructions because he made no objection at trial as required by Ohio law. Id. at 115, 102 S.Ct. at 1565.

The contemporaneous objection rule does not apply when, notwithstanding procedural default, a higher state court has addressed the merits of a constitutional claim. Washington v. Watkins, 655 F.2d 1346, 1368, reh'g denied, 662 F.2d 1116 (5th Cir.1981).

In Washington, the State argued that the failure of defendant's counsel to object to a jury instruction waived appellate consideration of this issue under Mississippi's contemporaneous objection rule and barred federal habeas corpus relief. The Fifth Circuit rejected this argument with the following analysis:

The second and more fundamental flaw with the State's [Wainwright v.] Sykes [433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ] argument lies in the fact that the Mississippi Supreme Court expressly addressed the merits of Washington's Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] claim in his direct appeal, rather than applying a contemporaneous objection rule to bar consideration of the merits. See 361 So.2d at 67-68. '[I]f neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.' County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213 2223, 60 L.Ed.2d 777 (1979) (footnote omitted). Accordingly, the Sykes rule is inapplicable to Washington's Lockett claim despite his trial counsel's failure to object to the relevant jury instructions. E.g., Braxton v. Estelle, 641 F.2d 392, 394 (5th Cir.1981); Holloway v. McElroy, 632 F.2d 605, 617 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).

Washington, 655 F.2d at 1368.

In his direct appeal to the Arizona Court of Appeals, Huffman argued that the trial court committed "fundamental error" because the instruction "acted to relieve the state of its burden of proof." While it is true that the Arizona Court of Appeals observed that "[n]o objection was made below to the instruction," it proceeded to decide the federal constitutional claim raised by Huffman by holding that "[t]he instruction did not relieve the state of its burden in proving these elements." State v. Huffman, 137 Ariz. 300, 670 P.2d 405, 408 (App.1983). By so ruling, the Arizona Court of Appeals failed to invoke the procedural bar contained in Rule 21.3(c). ² Huffman's failure to make a contemporaneous objection does not bar federal review of this matter. ³

B. Constitutional Propriety of the Instruction

Arizona contends that "the challenged instruction did not reduce the state's burden of proving that petitioner used a dangerous instrument." We review this federal constitutional question de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc) (petition for cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)).

The district court did not grant the relief requested in Huffman's petition. Huffman argued that the prosecutor had to convince the jury beyond a reasonable doubt that he was aware of and consciously disregarded a known risk to prove the elements of reckless manslaughter under Arizona law. He asserted that his conviction for reckless manslaughter was obtained in violation of the due process clause of the fifth and fourteenth amendments of the United States Constitution in that the instruction given by the court was the "functional equivalent of a directed verdict" on the issue of intent. Quoting Connecticut v. Johnson, 460 U.S. 73, 84, 103 S.Ct. 969, 976, 74 L.Ed.2d 823, 832 (1983). Huffman claimed that the instruction was "an irrebutable [sic] direction to the jury to find that the culpable mental state of 'recklessly' was involved." Therefore, the instruction violated the Supreme Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The district court rejected this argument without a discussion of its merits. The court held on this issue: "Petitioner's conviction for manslaughter was not tainted by the erroneous instruction. This conviction appears to be proper."

Huffman has not appealed the district court's determination that the instruction did not violate the fourteenth amendment's requirement that the prosecutor prove every element of the crime of reckless manslaughter beyond a reasonable doubt. In his petition, Huffman also contended that the giving of the instruction was "fundamental" error because it "alleviated the need for the state to prove" that he used or exhibited a dangerous instrument while committing the offense of reckless manslaughter. ⁴

The district court concluded that the Arizona court's instruction "may have created a presumption that driving while intoxicated involves the use of a dangerous instrument" in violation of Huffman's right to due process of law. The district court found that "this instruction violated the Fourteenth Amendment's requirement that the state prove every element of a criminal offense beyond a reasonable doubt," but cited no authority for the proposition that a punishment enhancement allegation is an "element of a criminal offense."

In a series of cases beginning with In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court has instructed 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." Id. at 364, 90 S.Ct. at 1072. In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court relied on Justice Harlan's concurrence in Winship in holding that a state statute which places the burden on the accused to prove he acted in the heat of passion on sudden provocation in order to reduce a murder charge to manslaughter violates due process. Id. at 703-704, 95 S.Ct. at 1892. In Mullaney, the jury was instructed that malice aforethought was to be conclusively presumed if the evidence established that the homicide was intentional or unlawful,...