Smith v. Dinwiddie

• Decision Date: 12 December 2007
• Docket Number: No. 06-5116.,06-5116.
• Parties: Kip Antonio SMITH, Petitioner-Appellant, v. Walter N. DINWIDDIE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

510 F.3d 1180

Kip Antonio SMITH, Petitioner-Appellant, v. Walter N. DINWIDDIE, Warden, Respondent-Appellee.

No. 06-5116.

United States Court of Appeals, Tenth Circuit.

December 12, 2007.

Fred Randolph Lynn, Tulsa, OK, for Petitioner-Appellant.

Theodore M. Peeper, Assistant Attorney General, Office of the Attorney General of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.

Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This habeas petition presents an unusual question of collateral estoppel. In 2000, Kip Antonio Smith was convicted of sexual abuse of a minor child. But only fourteen months earlier, in a civil deprived-child action, a jury had rejected the state's allegations that he had sexually abused a child in a manner that was shocking and heinous or which caused severe harm or injury. In his state appeal, Smith unsuccessfully argued that the jury's findings in the earlier civil proceeding precluded a contrary finding in his criminal case. See Smith v. Oklahoma, 46 P.3d 136, 137 (Okla.Crim. App.2002).

Smith petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2254. The district court denied Smith's petition, finding that the decision of the Oklahoma Court of Criminal Appeals (OCCA) in the state appellate proceedings was not contrary to, or an unreasonable application of, clearly established federal law.

We agree and therefore affirm the district court's denial of Smith's application for a writ of habeas corpus.

I. Background

On November 30, 1998, the State of Oklahoma filed a petition to terminate Kip Smith's parental rights over his two daughters, E.S. and K.S., following allegations he had sexually molested their half-sisters, B.J. and A.H. At the time, Smith was divorced from E.S. and K.S.'s mother, but had retained custody.

Under Oklahoma law, deprived-child/termination proceedings are designed to establish the status of children and their parents. In particular, the proceedings answer whether a child is deprived and whether the parents should retain the right to care for them. Oklahoma defines a "deprived child" as (1) "destitute, homeless or abandoned"; (2) lacking "proper parental care or guardianship"; or (3) living in an unfit place "by reason of neglect, cruelty, or depravity." Okla. Stat. tit. 10, § 7001-1.3(a), (b). If the child is found to be deprived and an aggravating factor is present, parental rights may be terminated. Id., § 7006-1.1(A). One aggravating factor is a finding the parent has physically or sexually abused the child or the child's sibling in a manner "that is heinous or shocking to the court" or that caused "severe harm or injury" to the child. Id., § 7006-1.1(A)(10).

The deprived-child/termination action against Smith went to trial in juvenile court on January 19, 1999. The state called five witnesses: B.J., A.H., a police detective, a social worker, and a nurse practitioner. The thrust of the state's case was Smith had sexually abused B.J. and A.H. while they were under his care. The state sought a jury verdict that E.S. and K.S. were deprived children and should be removed from Smith's custody. Smith testified in his defense, claiming B.J. had previously alleged he abused her, only to later recant. He also said he thought B.J. had been coached to give certain testimony by her mother, Smith's ex-wife.

During deliberations, the jury sent two hand-written notes to the judge. The first asked, "If we feel that [B.J.] was abused, but not by Kip Smith, should we still consider that [E.S. and K.S.] are deprived since Kip Smith has no control over [B.J.]?" Transcript of Proceedings, Case No. JVD-98-254 (Dist. Ct. Tulsa Co. Jan 21, 1999). The court told the jury to refer to the instructions it had already issued.¹ The jury's second note to the judge read, "We are close. Please reaffirm the following. If we say the children are deprived, are we in any way implicating Kip Smith in sexual abuse and altering his parental rights? Or are we only moving on to possibly more evidence regarding his actual actions?" Id. The court responded to this note by again referring the jury to the instructions.

The jury then returned a general verdict finding that E.S. and K.S. were deprived. But the jury also answered "no" to four special interrogatories regarding sexual abuse.² Since the jury found Smith's conduct did not match the allegations in the interrogatories (despite a general verdict that the children were deprived), the court did not reach the issue of whether Smith's parental rights should be immediately terminated. As the court explained to the jury:

Ladies and gentlemen of the jury, you reached a verdict finding that the two minor children in this case were deprived children. You, also, came to the conclusion that based on the evidence presented at trial, that they were not deprived based on sexual or physical abuse of a shocking and heinous nature. That is one of the requirements under the law in order for the State of Oklahoma to proceed with immediate termination, which would have been the second part of this trial. Based on your answers to those questions, the State of Oklahoma is not going to be able to proceed with immediate termination.

Transcript of Proceedings, Case No. JVD-98-254 (Dist. Ct. Tulsa Co. Jan. 21, 1999). Nevertheless, the deprived-child finding allowed the court to terminate, at a later time, Smith's parental rights if the court subsequently found termination was in the best interests of the children. Ultimately, the court made this determination and awarded sole custody of E.S. and K.S. to their natural mother.

While this deprived-child/termination civil action was pending, prosecutors charged Smith with criminal child sexual abuse of B.J. in violation of Okla. Stat. tit. 10, § 7115.³ Several months later, after the deprived-child action had concluded, the state was ready to begin the criminal trial. Smith moved to dismiss the charges against him based on the doctrine of collateral estoppel. He argued the civil court jury had found he did not sexually abuse B.J. and, therefore, the state was barred from proceeding with its criminal case.

The criminal court denied the motion, concluding that the ultimate facts in the deprived-child/termination case were different than those in the criminal case. In the criminal proceeding, the state was not required to prove Smith sexually abused B.J. in a manner that was shocking and heinous or that caused her severe harm or injury, as had been the case in the deprivation action. Rather, it had to prove only that Smith had sexually abused B.J. — without further proof of aggravating factors. A jury trial began on March 6, 2000, and Smith was convicted and sentenced to 15-years imprisonment.

Smith appealed his sentence directly to the OCCA. In rejecting his collateral estoppel argument, the OCCA agreed with the trial court that the two proceedings sought to prove different ultimate facts. Smith, 46 P.3d at 137-38. The OCCA determined the special interrogatories permitted a finding that Smith had sexually abused B.J. in a manner that was not shocking and heinous and did not cause severe harm or injury to the child. Id. at 138. One judge dissented, arguing every act of child sexual abuse was heinous and shocking and necessarily caused severe harm or injury. Id. at 139.

Smith petitioned for habeas relief under 28 U.S.C. § 2254. Although the federal district court initially denied his petition, we granted a certificate of appealability. Smith v. Beck, 130 Fed.Appx. 244, 245 (10th Cir.2005). We remanded the case for a complete review of the record in light of the collateral estoppel principles set forth in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Id. at 246. On remand, the district court once again denied relief. Smith v. Dinwiddie, No. 02-601, 2006 WL 1666184, at *9 (N.D. Okla. June 8, 2006). The district court found the OCCA had properly applied the doctrine of collateral estoppel and the ruling was not contrary to, or an unreasonable application of, clearly established federal law.

II. Analysis

A. Standard of Review

We have jurisdiction to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Relief is permissible only if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). See generally Maynard v. Boone, 468 F.3d 665 (10th Cir. 2006).

For a decision to be contrary to clearly established federal law,

[A] petitioner could show that the state court applies a rule that contradicts the governing law set forth in Supreme Court cases or that the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [their] precedent.

Maynard, 468 F.3d at 669 (internal quotation marks and alterations omitted). For a decision to involve an unreasonable application of clearly established federal law, a petitioner must show the state court's application of federal law was "objectively unreasonable," which means "most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Id. at 671. "It is not enough that the decision is clearly wrong or that the reviewing court would have reached a contrary decision.... [T]he state court decision must be at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary as to be unreasonable." Id. (internal quotation marks omitted).

The only federal law that can be clearly established for purposes of Smith's § 2254(d) appeal is Supreme Court p...