Tillman v. Cook

Citation215 F.3d 1116
Decision Date15 June 2000
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

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215 F.3d 1116 (10th Cir. 2000)
No. 98-4160
U.S. Court of Appeals, Tenth Circuit
June 15, 2000


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Michael R. Sikora and Loni F. DeLand of Salt Lake City, Utah for Petitioner-Appellant.

Marian Decker, Assistant Attorney General (Jan Graham, Utah Attorney General, with her on the brief), Salt Lake City, Utah for Respondent-Appellee.

Before Seymour, Chief Judge, and Kelly and Henry, Circuit Judges.

Henry, Circuit Judge.

ElRoy Tillman appeals the district court's denial of his petitions for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from his state court conviction for first-degree murder in the State of Utah and the resulting death sentence. Claiming his right to Due Process was violated, Mr. Tillman presents six grounds on which habeas relief may be predicated: (1) the reasonable doubt instruction given at his trial lowered the government's burden of proof; (2) the prosecutor made statements that rendered the sentencing procedure fundamentally unfair; (3) the jury convicted him on the basis of elements for which there was insufficient evidence; (4) his indictment was insufficient; (5) his sentence of death was arbitrary, and thus unconstitutional, because the distinction between first-degree and second-degree murder was entirely unclear to a jury, and; (6) his sentence of death was arbitrary and unconstitutional, because three of five Justices of the Utah Supreme Court have, in different decisions and on different grounds, dissented in some way from the affirmance of his conviction and sentence.


In accordance with Utah Code Ann. § 76-5-202 (1978), Mr. Tillman was convicted by a jury of first-degree murder, a capital crime, for the May 26, 1982 killing of Mark Schoenfeld. The same jury sentenced him to death. On appeal, the Utah Supreme Court affirmed his conviction and

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death sentence. See State v. Tillman, 750 P.2d 546 (Utah 1987) ("Tillman I").

Mr. Tillman then filed for post-conviction relief in state court, which was denied. See Tillman v. Cook, 855 P.2d 211 (Utah 1993) ("Tillman II"). After the United States Supreme Court denied his petition for a writ of certiorari, Mr. Tillman filed a federal habeas claim in the United States District Court for the District of Utah on March 8, 1994. The district court dismissed his petition without prejudice to allow exhaustion of state remedies. The Utah Supreme Court rejected Mr. Tillman's second petition for post-conviction relief, see Tillman v. Cook, No. 950178 (Utah S. Ct. Order filed June 18, 1995) ("Tillman III") (unpublished), and Mr. Tillman again filed for federal habeas relief in the U.S. District Court on August 13, 1995.

The district court denied federal habeas relief. See Tillman v. Cook, 25 F. Supp.2d 1245 (D. Utah 1998) ("Tillman IV"). This appeal follows the district court's grant of a certificate of probable cause.


A. Standard of Review

Mr. Tillman's right to appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, because his appeal was filed after its effective date, April 24, 1996. See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000). AEDPA amended, inter alia, 28 U.S.C. § 2253, which now requires a certificate of appealability (COA) be issued before a prisoner may appeal "the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." 28 U.S.C. § 2253(c)(1)(A). The amendment to § 2253 codified the standard for a certificate of probable cause (CPC) established in Barefoot v. Estelle, 463 U.S. 880, 893-94 (1983) (holding that to obtain a CPC, a prisoner must make "a substantial showing of the denial of a federal right" (internal quotations and alteration omitted)), except for substituting "constitutional" for "federal." 28 U.S.C. § 2253(C)(2); see Slack, 120 S. Ct. at 1603-04. While the Court's clarification in Slack may have some effect on non-constitutional claims, the standard remains the same for constitutional claims. See id.

Because the showing for a CPC is the same as that required for a COA, we construe Mr. Tillman's certificate of probable cause as a certificate of appealability. See Neely v. Newton, 149 F.3d 1074, 1077 (10th Cir. 1998), cert. denied, 525 U.S. 1107 (1999). However, we must review Mr. Tillman's claims individually, because § 2253(c)(3) requires the COA to "indicate which specific issue or issues satisfy the showing" of the denial of a constitutional right under § 2253. See 28 U.S.C. § 2253(C)(2) & (3).

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. . . . When the district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in it procedural ruling.

Slack, 120 S. Ct. at 1604. We hold Mr. Tillman satisfies the showing regarding his first five issues. For the reasons stated below in Part II.G of this opinion, we deny a COA on Mr. Tillman's final issue regarding dissents by three of the five Utah Supreme Court justices.

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Because he filed his federal habeas petition before its effective date, AEDPA determines Mr. Tillman's right to appeal, but that act does not govern our review of the district court's order. See Slack, 120 S. Ct. at 1602; Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). "Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court's ruling, for cases commenced there pre-AEDPA . . . ." Slack, 120 S. Ct. at 1602.

Under pre-AEDPA law, we presume state court factual determinations to be correct. See Williamson v. Ward, 110 F.3d 1508, 1513 & n.7 (10th Cir. 1997). We review the district court's factual findings for clear error and its conclusions of law de novo. See Foster v. Ward, 182 F.3d 1177, 1183 (10th Cir. 1999), cert. denied, 120 S. Ct. 1438 (2000). However, "[w]hen the district court's findings are based merely on a review of the state record, we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review." Smallwood v. Gibson, 191 F.3d 1257, 1264 n.1 (10th Cir. 1999), petition for cert. filed, Mar. 9, 2000. "We may grant relief to a state prisoner only if state court error deprived him of fundamental rights guaranteed by the Constitution of the United States." Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quotations omitted).

B. Reasonable Doubt Instruction

1. Retroactivity of Cage v. Louisiana

Mr. Tillman challenges the constitutionality of the reasonable doubt instruction given to the jury at the guilt phase of the trial. He alleges the instruction "unconstitutionally and impermissibly lowered the State's burden of proof," Aplt. Br. at 6., as did the instructions given in two cases decided after his conviction became final - Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), and Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990). Before reaching the merits of his argument, we must consider whether new rules regarding erroneous reasonable doubt instructions may be applied retroactively. Like the Second, Third, Fourth, Fifth, and Eleventh Circuits, we hold that the remedy for an unconstitutional reasonable doubt instruction must be applied retroactively.

The Supreme Court established in Teague v. Lane, 489 U.S. 288, 310 (1989), that "new constitutional rules of criminal procedure" are inapplicable to cases which became final prior to the announcement of the new rule. Teague denies habeas corpus petitioners the retroactive benefit of such new rules, subject to two exceptions. First, "a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal-lawmaking authority to proscribe.'" Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). Second, "a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id. (internal quotations omitted). To qualify under the second Teague exception, the new rule must (1) relate to the accuracy of the conviction and (2) "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242 (1990) (citations and internal quotations omitted).

A case announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final," Teague, 489 U.S. at 301 (emphasis omitted), or if it states a rule that is "susceptible to debate among reasonable minds," Butler v. McKellar, 494 U.S. 407, 415 (1990). While at

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the time of his conviction, "it was not a `new' notion that the standard of proof beyond a reasonable doubt in criminal cases implicates concerns of constitutional due process," Gaines v. Kelly, 202 F.3d 598, 602 (2d Cir. 2000), whether precedent dictated the result Mr. Tillman requests was certainly open to question. Compare Hopt v. Utah, 120 U.S. 430, 441 (1887) (suggesting that an instruction referring to the "weighty and important concerns...

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