Oken v. Warden MSP

• Decision Date: 03 October 2000
• Docket Number: No. 99-1829,99-1829
• Citation: 233 F.3d 86
• Parties: (1st Cir. 2000) STEVEN H. OKEN, Petitioner, Appellant, v. WARDEN, MSP; WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER, Respondents, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 86

233 F.3d 86 (1st Cir. 2000)

STEVEN H. OKEN, Petitioner, Appellant, v. WARDEN, MSP; WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER, Respondents, Appellees.

No. 99-1829.

United States Court of Appeals, For the First Circuit.

Heard Oct. 3, 2000.

Decided December 1, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE.

Hon. Gene Carter, U.S. District Judge.

Robert L. Sheketoff, with whom Sheketoff & Homan were on brief, for appellant.

Joseph A. Wannemacher, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, and Charles K. Leadbetter, Assistant Attorney General of Counsel, were on brief for appellees.

Before Boudin, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

This case presents an issue of first impression: whether state post-conviction review proceedings must comply with certain procedures under the Confrontation and Due Process clauses of the United States Constitution. Petitioner Steven Oken was sentenced in Maine to life imprisonment for murdering a Maine woman. He was sentenced to death in Maryland for murdering a woman there (and was also convicted and sentenced to life imprisonment for murdering another woman there). In imposing the death sentence on him in Maryland, the jury was told that he had been convicted of murder in Maine and sentenced to life imprisonment for that crime.

This case concerns one step in an apparent effort by Oken to undo the Maine murder conviction. The Maine courts rejected his direct appeal of the conviction, and later his post-conviction attack which argued that he had been denied effective assistance of counsel when he entered his Alford plea to the Maine murder charge. Oken argued he had been told by his counsel that his Maine plea could not be used in Maryland. Oken then filed a federal habeas corpus petition. The essence of his argument is that his constitutional rights were abridged during the post-conviction proceedings in the Maine courts when, imprisoned in Maryland, he was not brought back to Maine to be physically present to confront his former lawyer on the ineffective assistance issue, and because the other procedures used by Maine to protect his rights were inadequate.

Federal habeas review of state proceedings is narrow, particularly in the aftermath of the Antiterrorism and Effective Death Penalty Act ("AEDPA").¹ The district court denied his habeas petition. We affirm that decision. Given that this case involves a man's life, we choose to affirm not for reasons having to do with the narrowness of federal habeas review, but because we believe that Oken's constitutional rights were not violated at all. Accordingly, there is no basis for federal habeas relief.

The question before us is not whether the Maine state court was required to grant Oken an evidentiary hearing on his petition for post-conviction relief. The state court did so. It is also not whether the state court was required to permit Oken to testify as part of the evidentiary hearing. The state court did that as well. Rather, the question is whether the Constitution compelled the state court to have Oken physically present in post-conviction proceedings: (1) during the examination of one of Oken's two former attorneys, whose assistance Oken was challenging as ineffective, when Oken was given the transcript of that testimony and consulted with his new counsel before the later cross-examination of that former attorney, and (2) to hear Oken's own testimony in person rather than by deposition testimony.

We hold there was no such constitutional requirement. This is so even though the state post-conviction proceeding was the first occasion and opportunity for Oken to "confront" the witness, Oken's former attorney. In this post-conviction context, we think the question turns on the due process test of fundamental fairness, and the procedures used in the Maine post-conviction proceeding were fundamentally fair.

I.

Steven Oken sexually assaulted, tortured, and then murdered Dawn Garvin in Baltimore County, Maryland on November 1, 1987. He sexually assaulted and murdered his sister-in-law, Patricia Hirt, also in Baltimore County, about two weeks later. Oken then traveled north to Kittery, Maine, where, on the evening of November 16, 1987, he killed Lori Ward, a clerk at a motel where he had stopped. Oken was taken into custody in Freeport, Maine, on the day after the Ward murder and charged with murder, armed robbery, and theft. Oken was later charged by the Maryland authorities with the two Baltimore County murders. Oken retained Baltimore attorney Benjamin Lipsitz to represent him on the Maryland and Maine charges, and also retained Portland, Maine attorney Richard Emerson to represent him on the Maine charges.

On April 21, 1989, Oken entered a conditional plea of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to all of the Maine charges. At that time, two murder charges were pending against Oken in Maryland. After his conditional plea² on the Maine charges was accepted, Oken was sentenced to concurrent terms of life imprisonment on the Maine murder charge, twenty years on the robbery charge, and five years on the theft charge. Oken then appealed the denial of his motion to suppress evidence obtained during a warrantless search of Oken's Kittery hotel room. That appeal was denied, see State v. Oken, 569 A.2d 1218, 1221 (Me. 1990), and the life sentence was also affirmed.³ Oken was represented throughout the Maine criminal proceeding by Lipsitz and Emerson, and Emerson continued to represent Oken in his direct appeal of the denial of the suppression motion.

In October 1989, the Governors of Maine and Maryland agreed to return Oken to Maryland to stand trial on the Maryland charges, notwithstanding the Interstate Agreement on Detainers ("IAD"). Oken was tried on the first Maryland murder charge and found guilty.⁴ During the penalty phase of this proceeding, the jury, which had been informed of the Maine sentence, sentenced Oken to death. Oken pled guilty to the second Maryland murder charge and was sentenced to life imprisonment for that crime. His Maryland appeals were unsuccessful. See Oken v. State, 612 A.2d 258 (Md. 1992), cert. denied, 507 U.S. 931 (1993). Oken was represented throughout these Maryland proceedings by Lipsitz.

In 1991, while incarcerated in Maryland, Oken sought post-conviction relief from the Maine conviction in Maine Superior Court. Oken alleged that he had received ineffective assistance of counsel from Lipsitz and Emerson in that these attorneys assured him that entering an Alford plea to the Maine charges would insulate him from a death sentence in Maryland since, under the IAD, any sentence imposed in Maine must be served before execution of a Maryland sentence. Oken also claimed that his attorneys advised him that by entering such a plea, the conviction could not be considered during any Maryland proceedings, either at trial or during sentencing. Additionally, Oken alleged that his counsel advised him that the maximum sentence he would receive for his Alford plea would be sixty years. Oken further claimed that had he known that these assurances were inaccurate, he would not have given up his right to a jury trial in Maine by entering a plea. Oken was represented by court-appointed counsel different from the attorneys who had represented him previously in the Maine criminal proceedings.

In 1993, Oken moved in the Maine post-conviction proceedings for a writ of habeas corpus ad testificandum directing that he be transported from Maryland to Maine for the post-conviction hearing. The court declined to issue the writ,⁵ but did authorize depositions of Oken and others in Maryland. Oken and Lipsitz, the Maryland attorney who represented him in Maine, were deposed in Maryland on June 23, 1993. Oken was present and represented by counsel during Lipsitz's deposition. Lipsitz was also present at Oken's deposition. Oken's father, mother, and sister were also deposed in Maryland, but not in Oken's presence.⁶

In June 1995, the court denied Oken's renewed motion seeking a writ of habeas corpus ad testificandum. An evidentiary hearing was held in Maine in Oken's absence, and over his objection, on June 7, 1995. Oken was represented by counsel at the hearing, and the court ordered that a transcript of the hearing be prepared. At the hearing, the court heard testimony from three witnesses: the Maine attorney (Emerson) who represented Oken when he entered the Alford plea; Dr. Susan Righthand of the Maine Forensic Service; and Oken's mother. Transcripts of the depositions of Oken, his sister, and his Maryland attorney (Lipsitz) were admitted into evidence, as were the affidavits of Thomas Sanders, another Maryland attorney, and Dr. Henry Payson, a psychiatric expert retained by Oken.

After traveling to Maryland to consult with Oken, Oken's post-conviction attorney recalled Emerson for further cross-examination at a second hearing on April 2, 1996. This hearing was also held in Oken's absence and over his objection. Again, a transcript was made of the hearing. After reviewing the transcripts and evidence with his post-conviction attorney, Oken was deposed again in Maryland on June 17, 1996. Oken's counsel and Oken personally then submitted a second round of briefs and other materials to the court.

The superior court denied the petition July 15, 1997. First, characterizing Oken's former Maine attorney as a "credible, competent and compelling witness to the events surrounding Oken's plea," the court found that Oken's former attorneys did not guarantee Oken that he would serve his entire sentence in Maine before being returned to Maryland. The court also found that Oken was informed of the risk that the IAD would be circumvented by an executive agreement, thus allowing Oken to be returned to Maryland for trial and execution of any sentence imposed after trial. Secon...