Romo v. Cowley
| Decision Date | 29 November 1993 |
| Citation | 89 F.3d 851 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Petitioner Johnnie Romo originally filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that the delay in his state court direct appeal 1 violated his constitutional rights. Subsequently, the Oklahoma Court of Criminal Appeals affirmed petitioner's conviction. Thus, petitioner could prevail on his habeas claim only if he could show that the delay itself actually prejudiced the outcome of his appeal. Harris v. Champion, 15 F.3d 1538 (10th Cir.1994). The district court held that petitioner failed to show any prejudice resulting from the delay.
Petitioner was charged in Oklahoma state court with one count of robbery with firearms, after former conviction of two or more felonies. He was also charged with two counts of assault with intent to kill, based on the state's theory that petitioner, with the aid of several cohorts, had injected two robbery victims with potentially lethal doses of insulin. The trial court quashed the assault charges because at the preliminary hearing the state failed to establish probable cause that petitioner was the person who made the injections.
At petitioner's trial on the robbery charge, the state introduced evidence of the insulin injections on the theory that the injections were part of the res gestae of the robbery and to show motive, intent and identity of the defendant.. On appeal, petitioner asserted that the use of evidence of the injections created a double jeopardy problem. The state responded by erroneously arguing in its appellate brief that the two assault charges were still pending and that any double jeopardy claim was premature. The Oklahoma Court of Criminal Appeals summarily affirmed the conviction.
Petitioner claims that the delay in his appeal violated his constitutional rights. See Harris v. Champion, 15 F.3d at 1559 (). If the petitioner's direct criminal appeal has already been decided, and his conviction has been affirmed, he is entitled to habeas relief only if he can show "actual prejudice to the appeal, itself, arising from the delay." Id. at 1566 ().
Petitioner's claim of actual prejudice begins with his allegation that the trial court's order quashing the assault charges was missing from the record on appeal, and that the appellate delay caused the order to be missing. He then argues the missing order deprived him of effective assistance of appellate counsel because if the record had been complete, his attorney could have effectively argued on appeal that double jeopardy, the doctrine of collateral estoppel, and various state statutes prevented the use of the insulin injection evidence at his robbery trial. Assuming that the order was in fact missing from the record and that the order was missing because of delay in the adjudication of petitioner's direct criminal appeal, we nevertheless hold that petitioner suffered no actual prejudice.
Even if jeopardy attached when the assault charges were quashed, petitioner's double jeopardy claim fails because the use of the insulin injection evidence at his robbery trial was not a second prosecution of the assault charges. See United States v. Felix, 503 U.S. 378, 385 (1992) (). In considering the double jeopardy implications of prior acts evidence under Fed.R.Civ.P. 404(b), the Supreme Court has recognized the "basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct." Felix, 503 U.S. at 387 ( Dowling v. United States, 493 U.S. 342 (1990)). The "mere overlap in proof between two prosecutions does not establish a double jeopardy violation." Id. at 386. In this case, the insulin injection evidence was introduced in the robbery trial as res gestae of the robbery itself. See Reyes v. Oklahoma, 751 P.2d 1081, 1083 (Okla.Crim.App.1988) (). No double jeopardy violation occurred because the "mere overlap in proof" between the assault and the robbery charges did not amount to multiple prosecution for the same offense.
Petitioner also argues that the collateral estoppel component of the Double Jeopardy Clause barred the use of the insulin injection evidence at his robbery trial. See Dowling, 493 U.S. at 347 (...
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Romo v. OK Dep't of Corrections
...prejudice for failure to exhaust state remedies, Petitioner's original petition was decided on the merits in Romo v. Cowley, 89 F.3d 851, 1996 WL 308709 (10th Cir. 1996) (Table). It was not dismissed for failure to exhaust state remedies. Petitioner's current habeas action therefore cannot ......