Sexton v. Kemna

• Decision Date: 29 January 2002
• Docket Number: No. 00-2764.,00-2764.
• Parties: John SEXTON, Petitioner-Appellant, v. Mike KEMNA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

278 F.3d 808

John SEXTON, Petitioner-Appellant, v. Mike KEMNA, Respondent-Appellee.

No. 00-2764.

United States Court of Appeals, Eighth Circuit.

Submitted: September 12, 2001.

Filed: January 29, 2002.

COPYRIGHT MATERIAL OMITTED

Patrick J. Berrigan, Kansas City, Missouri, for appellant.

Stephen D. Hawke, Jefferson City, Missouri (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before LOKEN, RICHARD S. ARNOLD, and FAGG, Circuit Judges.

LOKEN, Circuit Judge.

Missouri inmate John Sexton appeals the denial of his petition for a writ of habeas corpus. Sexton argues that the state courts violated North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), by imposing the same forty-year sentence for fewer counts of conviction after Sexton successfully appealed his initial conviction. He further argues the evidence was constitutionally insufficient to convict him of sodomy, he was denied his constitutional right to confront the victim at trial, and he was denied effective assistance of counsel. We affirm.

I. Background.

In January 1994, a jury convicted Sexton of one count of rape and five counts of sodomy. The victim was Sexton's minor stepdaughter, R.C. The trial court sentenced him to five concurrent twenty-year sentences on the sodomy counts and a consecutive twenty-year sentence on the rape count, for a total prison term of forty years. On appeal, the Missouri Court of Appeals overturned the convictions and remanded for a new trial. State v. Sexton, 890 S.W.2d 389, 392 (Mo.App.1995).

At the second trial, Sexton was again charged with one count of rape and five counts of sodomy.¹ R.C. testified that Sexton's abuse began shortly after her mother married him, when R.C. was nine years old. The abuse usually occurred when R.C.'s mother was at work. R.C. testified that Sexton demanded oral sex three to four times a week from the time she was approximately ten years old until she reported the abuse in November of 1992. In addition to coercing oral sex, R.C. testified that Sexton touched her vagina, breasts, and buttocks with his fingers and tongue, placed his penis in her vagina on numerous occasions, and at least once inserted his penis into her rectum. Early in the abuse period, Sexton threatened to kill R.C. if she ever told anyone about his conduct or tried to leave his home. Later, Sexton and his wife forced R.C. to take birth control pills, justifying the measure as a means of preventing pregnancy if R.C. were ever raped. Sexton also used sexual abuse to control and punish R.C., demanding sexual contact if R.C. wished to associate with friends, and forcing her to choose between a whipping and oral sex if she misbehaved.

The second jury found Sexton not guilty of the rape charge, but convicted him of the five sodomy charges. The trial court sentenced him to five concurrent forty-year terms for the sodomy offenses. Thus, his total sentence was again a forty-year prison term. On direct appeal, the Missouri Court of Appeals overturned one sodomy conviction because the victim did not testify to any instance of that type of deviate sexual intercourse. The court upheld the other four sodomy convictions, rejected Sexton's argument under North Carolina v. Pearce, and affirmed his forty-year sentence. State v. Sexton, 929 S.W.2d 909, 918 (Mo.App.1996). After the Missouri courts denied his motion for state post-conviction relief as untimely, Sexton filed this petition for a federal writ of habeas corpus. The district court² denied relief but granted him a certificate of appealability on five issues. Sexton's counsel filed briefs addressing three of those issues. Sexton filed pro se briefs addressing the other two.

II. Discussion.

The Anti-terrorism and Effective Death Penalty Act of 1996 amended the federal habeas corpus statute to provide that relief may not be granted to a person in state custody unless the underlying state proceeding:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court recently clarified the proper interpretation § 2254(d)(1). Writing for a majority of the Court on this issue, Justice O'Connor explained that the "contrary to" clause limits habeas relief to cases in which "the state court arrives at a conclusion opposite to that reached by this Court on a question of law or ... decides a case differently than this Court has on a set of materially indistinguishable facts." The "unreasonable application" clause permits the writ to issue only "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A. The North Carolina v. Pearce Issue.

In North Carolina v. Pearce, the Supreme Court considered whether the U.S. Constitution limits the discretion of state courts in sentencing criminal defendants who successfully appeal their initial convictions but are convicted again after a new trial. The Court emphasized that there is no constitutional bar to imposing a more severe sentence after the second conviction. 395 U.S. at 723, 89 S.Ct. 2072. However, "Due Process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725, 89 S.Ct. 2072. To guard against the danger of vindictiveness, the Court held that, "whenever a judge imposes a more severe sentence upon a defendant after a new trial," the record must demonstrate that the greater severity was based upon "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 726, 89 S.Ct. 2072.

Sexton argues that the forty-year sentence imposed after his second trial violates this principle. Though he received a total sentence of forty-years after each trial, Sexton explains that his second sentence was more severe, and therefore Pearce's presumption of vindictiveness applies, because (i) the second jury found him not guilty of the rape charge that accounted for one-half of his initial forty-year sentence, and (ii) the trial court "doubled" his first twenty-year sentence on the sodomy charges so as to impose the second forty-year sentence. The Missouri Court of Appeals rejected this contention, concluding that the presumption of vindictiveness does not apply because Sexton received the same forty-year sentence after both convictions. Relying on a Seventh Circuit decision, United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987), the Missouri court reasoned that, when a multi-count conviction is reversed on appeal, and defendant is convicted or resentenced on one or more of those counts on remand, "the trial judge has the authority to re-evaluate the sentencing package in light of the changed circumstances and resentence the defendant to effectuate the original sentencing intent without violating Pearce." 929 S.W.2d at 914; accord United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989) (en banc).

This court recently confirmed, in a case involving a one-count conviction, that the Pearce presumption of vindictiveness does not apply when the same sentence is imposed following a successful appeal. United States v. Arrington, 255 F.3d 637, 639 (8th Cir.2001). The issue, then, in this multi-count case, is whether the "same sentence" inquiry should be made on a count-by-count basis, or simply by comparing the total prison sentence imposed before and after the successful appeal. A number of our sister circuits have considered this issue in the context of federal prosecutions, where we have supervisory as well as constitutional jurisdiction. Most concluded, as the Missouri Court of Appeals did in this case, that the total sentences should be compared. Two circuits instead compared the total sentence after remand with the total sentence imposed on those same counts before the appeal. See United States v. Vontsteen, 950 F.2d 1086, 1092-93 (5th Cir.1992) (en banc) (collecting cases). Our research uncovered three pre-AEDPA circuit decisions in which state inmates sought federal habeas relief under Pearce from their multi-count state court sentences. Relief was denied in all three because the second sentence was not more severe, but the cases were not factually similar to this case. See Washington v. Regan, 510 F.2d 1126 (3d Cir.1975); Timmons v. Richards, 940 F.2d 666, 1991 WL 153443 (7th Cir.1991) (unpublished); Thomas v. Sutton, 857 F.2d 1469, 1988 WL 92922 (4th Cir.1988) (unpublished). See also Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir.1990) (Pearce presumption "should not be mechanically applied when some of a defendant's individual sentences are increased, but his aggregate sentence is reduced on remand following a successful appeal").³

Though these prior circuit court decisions do not provide a definitive answer to our issue, they tend to confirm that the Missouri Court of Appeals decision was not an unreasonable application of Pearce within the meaning of 28 U.S.C. § 2254(d)(1). In addition, later Supreme Court decisions have not broadly extended the Pearce presumption of vindictiveness. See Alabama v. Smith, 490 U.S. 794, 801-03, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (no presumption when sentence following trial is more severe than previous sentence following guilty plea; Pearce overruled on this issue); Chaffin v. Stynchcombe, 412 U.S. 17, 24-29, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (no presumption when more severe sentence...