Shumway v. Payne
| Decision Date | 03 May 2000 |
| Docket Number | No. 99-35726,99-35726 |
| Citation | 223 F.3d 982 |
| Parties | (9th Cir. 2000) ALEXIS SHUMWAY, Petitioner-Appellant, v. ALICE PAYNE, Superintendent of Washington State Penitentiary at Purdy, Respondent-Appellee. Office of the Circuit Executive |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington, for the petitioner-appellant.
Paul D. Weisser and Daniel J. Judge, Deputy Attorney Generals, Olympia, Washington, for the respondent-appellee.
Appeal from the United States District Court for the Western District of Washington, D.C. No. CV-96-01941-WLD; William L. Dwyer, District Judge, Presiding
Before: Pamela Ann Rymer and Thomas G. Nelson, Circuit Judges, and William D. Browning, 1 District Judge.
Alexis Shumway appeals the federal district court's denial of her 28 U.S.C. S 2254 habeas corpus petition challenging her state conviction of first-degree murder. We have jurisdiction pursuant to 28 U.S.C. S 2253 and review the district court's decision de novo.2
Suzine Van Sickle died on November 18, 1990. On February 18, 1991, Alexis Shumway contacted the police, stating that she had information that Van Sickle, her grandmother, had been murdered. Police detectives met with Shumway at her home, where they recorded her statement. Shumway told police that she and her mother had fed her grandmother about fifty pills of Dilantin that had been ground up in a blender and mixed into some clam chowder. When her grandmother did not die from the overdose, Shumway told police that her mother smothered her grandmother with a pillow. Shumway admitted to assisting her mother in holding the pillow down.
The trial court denied Shumway's motion to sever, and Shumway and her mother were tried together. The trial court admitted, over objections, redacted copies of the statements each defendant had made to the police. Both Shumway and her mother were convicted of first-degree murder. Shumway received a sentence of 240 months' imprisonment, and her mother received a sentence of 420 months' imprisonment.
Shumway and her mother appealed their convictions to the Washington Court of Appeals. That court affirmed the convictions, finding that a jury instruction, while erroneous, was harmless error; that mandatory severance was not required because it found that Shumway's redacted statement did not directly refer to her mother and that her mother's redacted statement did not directly refer to Shumway; and that the trial court's denial of Shumway's motion for discretionary severance was not an abuse of discretion because the exculpatory statements that had been redacted would have been inadmissible hearsay at a separate trial.
Shumway filed a petition for discretionary review with the Washington Supreme Court. The Washington Supreme Court denied Shumway's petition for discretionary review, and the United States Supreme Court denied certiorari.
Shumway then filed a personal restraint petition in the Washington Court of Appeals. She raised the following three issues: (1) "The trial court's decision to deny the motion to sever violated the due process and confrontation clauses of the U.S. Constitution"; (2) "All statements Alexis made to Detective Mooney, after she was a suspect and retained counsel, should have been suppressed"; and (3) "Trial counsel were ineffective for failing to raise Alexis' diminished capacity as a defense at trial." The Court of Appeals dismissed Shumway's petition, finding that her first two issues were procedurally barred, and rejected the remaining issue based on its finding that Shumway failed to demonstrate that the defense of diminished capacity would have been available to her at trial. Shumway did not apply to the Washington Supreme Court for discretionary review of the court of appeals' dismissal of her personal restraint petition.
Shumway filed a petition for a writ of habeas corpus in federal district court on January 31, 1997. A magistrate judge believed that there was some question as to whether two of Shumway's issues would be found to be procedurally barred by a Washington court. The district court certified two questions to the Washington Supreme Court asking whether Shumway could then present her claims of severance and ineffective assistance of counsel to that court and whether a mandatory state procedural rule barred those claims. That court found that Shumway's claims would be barred by the Washington procedural rule barring post-conviction petitions for relief filed more than one year from the date the conviction became final.3 Upon return to the district court, a magistrate judge recommended that three of Shumway's issues raised in her federal habeas petition, the two that had been addressed by the Washington Supreme Court on certification and one additional issue regarding the redaction of Shumway's statement to police, were procedurally barred and her remaining claims concerned a jury instruction that amounted to harmless error. The district court adopted the magistrate judge's report and recommendation and denied Shumway's petition for a writ of habeas corpus. Shumway appeals.
In the instructions given to the jury by the trial court, instruction ten stated that, in order to convict, the jury had to find:
(1) That on or about the 18th day of November, 1990, the defendant or her accomplice caused the death of Suzine Van Sickle;
(2) That the defendant or her accomplice acted with intent to cause the death of Suzine Van Sickle;
(3) That the intent to cause the death was premeditated;
(4) That Suzine Van Sickle died as a result of defendant's or her accomplice's acts; and
(5) That the acts occurred in King County, Washington.
Shumway claims that this instruction was erroneous because it permitted the jury to split the act and the intent between the defendants and to convict her without finding she possessed the requisite criminal intent. When the Washington Court of Appeals addressed Shumway's contention that this instruction warranted reversal, the court stated:
We do not approve of the wording of this instruction because, as the defendants argue, under some circumstances it could allow a jury to assign the mental state to one defendant and the act to another, thereby avoiding the requirement that the jury find that the principal both performed the act and had the requisite mental state. However, the instruction does not mandate reversal in this case. The defendants have not established prejudice because there was sufficient evidence for a reasonable jury to find both defendants guilty as principals in the commission of the murder.
In its review of Shumway's direct appeal, the Washington Court of Appeal placed the burden of proof on Shumway to show that the error was not harmless, rather than on the State to show that the error was harmless. Therefore, Shumway argues, the Antiterrorism and Effective Death Penalty Act ("AEDPA")4 would not bar this court from granting relief because the Washington Court of Appeals applied a standard of review which was contrary to clearly established federal law as stated in Chapman v. California. 5
In Bains v. Cambra,6 we held that even where a state appellate court failed to apply the Chapman standard of review, as required by Supreme Court law, the harmless error standard announced in Brecht v. Abrahamson7 applies on federal habeas review. We must therefore determine whether the jury instruction resulted in an error that "had substantial and injurious effect or influence in determining the jury's verdict."8 We hold it did not.
If, as the Washington Court of Appeals noted, instruction ten allowed the jury to assign the mental state to one defendant and the act to another, that "error, " if any, was harmless under Washington law.9 The Washington Court of Appeals has approved the use of the instruction as it was worded in Shumway's case because "it is sufficient to convict all of the participants if the State can prove that the lifethreatening injury was inflicted by one or more of the participants during the [crime] and that at least one of the participants intended to inflict great bodily harm." 10 Under Washington law, to be convicted as an accomplice,"[j]urors need only conclude unanimously that both the principal(s) and the accomplice(s) participated in the crime, but need not be unanimous as to the manner of that participation."11
Shumway admitted to grinding Dilantin pills to poison her grandmother's soup and to holding a pillow down over her grandmother's face. Therefore, the fact that jury instruction ten may have split the mental state and the act among the defendants could not have had a "substantial and injurious effect or influence" on the jury's verdict because it was not an incorrect statement of Washington law. The arguably improper jury instruction was therefore harmless.
Shumway claims that redaction of portions of her statement to police violated her right to Due Process and to present a defense at trial. The district court found that this issue was procedurally barred because it had not been exhausted in state court proceedings.
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State."12 "[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." 13 To "fairly present" a federal claim to state courts, Shumway "had to alert the state courts to the fact that [she] was asserting a claim under the United States Constitution."14
In Shumway's ...
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