Osborn v. Shillinger

• Decision Date: 08 July 1993
• Docket Number: No. 92-8059,92-8059
• Citation: 997 F.2d 1324
• Parties: Kevin Winston OSBORN, Petitioner-Appellant, v. Duane SHILLINGER, and Attorney General of the State of Wyoming, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1324

997 F.2d 1324

Kevin Winston OSBORN, Petitioner-Appellant, v. Duane SHILLINGER, and Attorney General of the State of Wyoming, Respondents-Appellees.

No. 92-8059.

United States Court of Appeals Tenth Circuit.

July 8, 1993.

Kevin Winston Osborn, pro se.

Paul S. Rehurek, Sr. Asst. Atty. Gen., Cheyenne, WY, for respondents-appellees.

Before BALDOCK and KELLY, Circuit Judges, and BENSON, ^* District Judge. ^**

BALDOCK, Circuit Judge.

Petitioner Kevin Winston Osborn appeals from the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. On this appeal, Osborn claims that the district court erred in dismissing his claims (1) that his guilty plea to murder and other charges was coerced and (2) that the sentences imposed were vindictive and therefore violated due process. We affirm.

The factual background and history of extensive criminal and habeas proceedings involving this case are contained in the district court's opinion and in the Wyoming Supreme Court's opinion affirming Osborn's most recent conviction. See Osborn v. Shillinger, 803 F.Supp. 371, 372-73 (D.Wyo.1992); Osborn v. State, 806 P.2d 259, 260-62 (Wyo.1991). For the present case, we need only briefly sketch the background of Osborn's claims. At his initial, consolidated criminal proceeding in 1982, Osborn pleaded guilty to murder and attempted murder and related charges arising out of an incident in Sweetwater County and then pleaded guilty to murder and related charges arising out of an incident in Uinta County. Osborn was sentenced to two life sentences plus forty-five to fifty years consecutively for the Sweetwater County crimes. His conviction of the Sweetwater murder was used as an aggravating circumstance in the sentencing hearing for the Uinta murder, and Osborn was sentenced to death for the Uinta murder and to two concurrent sentences of forty-five to fifty years for the related crimes in Uinta County, and this sentence was to run consecutive to the Sweetwater sentence. Thus, in total Osborn received a death sentence plus two life sentences and ninety to one hundred years, all to run consecutively.

Osborn sought habeas relief for his Uinta death sentence, and this court affirmed the district court's grant of relief on the basis of ineffective assistance of counsel at the trial and sentencing hearing. Osborn v. Shillinger, 861 F.2d 612, 626-30 (10th Cir.1988). Upon retrial for the Uinta murder, Osborn again pleaded guilty. This time he received a life sentence for the murder as well as two forty-five to fifty-year sentences, all of which was concurrent to the existing Sweetwater sentences.

Osborn then sought and obtained habeas relief for the Sweetwater convictions on the same basis as for his original Uinta convictions, and he again stood for retrial. Though the state originally sought only a life sentence for the Sweetwater murder, on retrial the state sought the death penalty, relying in part on the Uinta murder as an aggravating circumstance. After two days of trial, Osborn again pleaded guilty to the Sweetwater charges in return for the state not seeking the death penalty. He was again given two life sentences and a sentence of twenty-two to twenty-five years, and these sentences were to be served consecutive to each other and consecutive to the Uinta sentences.

Osborn first claims that his guilty plea was coerced rather than voluntary. His primary argument is that he pleaded guilty only to avoid the death penalty and that the state's seeking the death penalty was unconstitutional on double jeopardy grounds because he had been "acquitted" of the death penalty in the original Sweetwater proceeding since the state had not sought the death penalty during that proceeding. Appellant's Br. at 21. To a lesser extent, he also claims that a number of errors by the court and his counsel prior to his plea also coerced him into making the plea: the court excluded him from voir dire of several jurors; the court seated a juror who was allegedly prejudiced against him; the court ordered all witnesses excluded from the courtroom during trial but allowed a prosecution witness to sit at the prosecutor's table; his attorney failed to appeal the court's interlocutory ruling allowing the state to seek the death penalty; and his attorney failed to subpoena certain witnesses. Id. at 11-16. Osborn's second claim is that the court acted vindictively when it imposed harsher sentences at his second Sweetwater hearing (because his second Sweetwater sentences were consecutive rather than concurrent to the second Uinta sentences) and that this violated his due process rights. Id. at 27-31.

In dismissing Osborn's petition, the district court concluded that Osborn's guilty plea was not coerced. It found that the state's decision not to seek the death penalty at the original proceeding did not constitute an "acquittal" of the death penalty and that the state was not barred from seeking the death penalty on retrial. Osborn v. Shillinger, 803 F.Supp. at 375-76. Relying primarily on Brady v. United States, 397 U.S. 742, 749-50, 90 S.Ct. 1463, 1469-70, 25 L.Ed.2d 747 (1970), the district court found that neither the fact that Osborn pleaded guilty to avoid the death penalty nor the alleged court and counsel errors prior to his plea made his plea involuntary. Osborn v. Shillinger, 803 F.Supp. at 374-76. The court also determined that there was no evidence of vindictiveness on the part of the sentencing authority, and thus he was not entitled to a presumption of vindictiveness, and that Osborn had not carried his burden of proving vindictiveness. Id. at 377. The court therefore dismissed the petition.

We first address Osborn's coercion claim. "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)); see also McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). A valid guilty plea may not be obtained through coercion. See, e.g., Brady, 397 U.S. at 750, 90 S.Ct. at 1470; Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Whether a guilty plea is knowing and voluntary under the constitution is a question of federal law. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). "The voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it." Brady, 397 U.S. at 749, 90 S.Ct. at 1469.

Generally, a collateral attack on a conviction resulting from a guilty plea is "confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Thus, a guilty plea bars subsequent challenges based on nonjurisdictional, pre-plea errors. See, e.g., Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975); Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."). The district court's alleged errors in excluding him from jury voir dire, seating an allegedly biased juror, and allowing a prosecution witness in the courtroom when not testifying are such pre-plea errors that Osborn cannot collaterally attack. Moreover, we agree with the district court that these alleged errors do not make Osborn's guilty plea involuntary. Had Osborn believed these alleged errors were so prejudicial as to deny him a fair trial, he should have challenged them directly in the trial court, on appeal, or in a collateral attack rather than pleading guilty. See Broce, 488 U.S. at 571, 109 S.Ct. at 763; McMann v. Richardson, 397 U.S. 759, 768, 90 S.Ct. 1441, 1447, 25 L.Ed.2d 763 (1970).

Osborn's claim that the state's seeking the death penalty was unconstitutional because he had already been acquitted of the death penalty amounts to a double jeopardy challenge to the trial court's power to hale him into court; it thus can be raised collaterally notwithstanding his guilty plea. See Broce, 488 U.S. at 574-75, 109 S.Ct. at 765; Menna, 423 U.S. at 62, 96 S.Ct. at 242. We agree with the district court that this claim fails on the merits because Osborn had not been "acquitted" of the death penalty at his earlier proceeding. Whether the earlier proceeding acquitted Osborn turns on "whether the sentencer or reviewing court has decided that the prosecution has not proved its case that the death penalty is appropriate." Poland v. Arizona, 476 U.S. 147, 155, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986) (quotation and emphasis omitted); see also United States v. Wood, 958 F.2d 963, 972 (10th Cir.1992) (no acquittal where issue not resolved in defendant's favor). The state did not present evidence in support of the death penalty, and the trial court did not make any findings on the issues to be resolved in deciding between life and death. Thus, there was no determination that the death penalty was inappropriate, and the state's subsequently seeking the death penalty did not place Osborn in double jeopardy.

Osborn also alleges that the ineffectiveness of his counsel coerced him to plead guilty. ¹ The two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), determines whether a defendant's counsel was ineffective. To prevail on an ineffectiveness claim, a defendant must show both that his counsel's performance was substandard and that he...