Wood v. Milyard

• Decision Date: 08 July 2013
• Docket Number: No. 09–1348.,09–1348.
• Citation: 721 F.3d 1190
• Parties: Patrick WOOD, Petitioner–Appellant, v. Kevin MILYARD, Warden, Sterling Correctional Facility; The Attorney General of the State of Colorado, Respondents–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

721 F.3d 1190

Patrick WOOD, Petitioner–Appellant,

v.Kevin MILYARD, Warden, Sterling Correctional Facility; The Attorney General of the State of Colorado, Respondents–Appellees.

No. 09–1348.

United States Court of Appeals, Tenth Circuit.

July 8, 2013.

Kathleen A. Lord of Lord Law Firm, LLC, Denver, CO, for Petitioner–Appellant.

John J. Fuerst III, Senior Assistant Attorney General, State of Colorado, Denver, CO, (John W. Suthers, Attorney General, with him on the brief), for Respondents–Appellees.

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Patrick Wood's case has labored its way through the state court system, through the lower federal courts, all the way to the United States Supreme Court—and back again—for the better part of three decades. Today, we take one step closer to a final resolution.

Twenty-seven years ago Mr. Wood entered a pizza delivery store to commit a robbery. It ended badly: he wound up shooting and killing the assistant manager. As Mr. Wood sought to flee, restaurant employees heroically captured and disarmed him, holding him until the police arrived. After a bench trial, Mr. Wood was convicted of first degree felony murder, second degree murder, and several lesser charges. When his direct appeal and state habeas efforts proved fruitless, Mr. Wood turned his eye to federal court. Eventually, this court rejected Mr. Wood's federal habeas petition as untimely, noting on its own motion that the statute of limitations barred his way.

That, however, turned out to be anything but the end of things. The Supreme Court took Mr. Wood's case and reversed. Though it did not question the untimeliness of Mr. Wood's petition, the Supreme Court did question this court's decision to raise the issue sua sponte. It was the Supreme Court's judgment that the State of Colorado had waived any statute of limitations defense. Wood v. Milyard, ––– U.S. ––––, 132 S.Ct. 1826, 1834–35, 182 L.Ed.2d 733 (2012).

So it is the case now returns to us. We find ourselves facing two claims on which this court originally granted a certificate of appealability: one alleging that Mr. Wood's double jeopardy rights were violated by his simultaneous convictions for first and second degree murder in a case involving the death of a single victim, the other alleging that Mr. Wood's waiver of his Sixth Amendment right to a jury trial was not voluntary, knowing, and intelligent because of his attorney's bad advice.

Before we can get to the merits, however, the State insists another procedural problem blocks our way. Colorado points to a state court rule—one that, it says, required Mr. Wood to bring his double jeopardy and Sixth Amendment claims to court long ago, in his state court direct appeal. SeeColo. R.Crim. P. 35(c)(3)(VII). In the State's view, Mr. Wood's failure to obey this rule—to exhaust a formerly available (but now surely long gone) chance to present his arguments in his direct appeal—amounts to a procedural default that precludes him from raising his double jeopardy and Sixth Amendment arguments now, in a federal habeas proceeding.

The State has something of a point. The Supreme Court has instructed us to heed “the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). After all, federal criminal defendants can forfeit even meritorious constitutional claims by failing to observe federal procedural rules. And “a proper respect for the States require[s] that federal courts give to the state procedural rule the same effect they give to the federal rule.” Id. at 746, 111 S.Ct. 2546. Otherwise, state proceedings might be relegated to a mere “ ‘tryout on the road’ for what will later be the determinative federal habeas hearing,” id. at 747, 111 S.Ct. 2546, essentially permitting state court defendants to “avoid the exhaustion requirement by defaulting their federal claims in state court,” id. at 732, 111 S.Ct. 2546. All this amounts to “a strong prudential reason, grounded in considerations of comity and concerns for the orderly administration of criminal justice, not to pass upon a [procedurally] defaulted constitutional claim presented for federal habeas review.” Dretke v. Haley, 541 U.S. 386, 392–93, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (internal quotation marks omitted). As a matter of comity and federalism, then, we will usually hold our tongues about any potential federal law violation lurking in the background of a state procedural default.

To preclude our review, however, the defaulted state rule must be both “independent” of federal law and “adequate” to support the judgment. Walker v. Martin, ––– U.S. ––––, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011); Coleman, 501 U.S. at 729–30, 750, 111 S.Ct. 2546. Even then we may still take up the lurking federal question if the petitioner can show some real “cause and prejudice” or “a fundamental miscarriage of justice” arising from a failure to do so. Walker v. Attorney Gen. for State of Okla., 167 F.3d 1339, 1344 (10th Cir.1999) (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546).

The problem Colorado confronts in this case concerns the “adequacy” requirement.For our purposes we assume (without deciding) that Rule 35does require double jeopardy and Sixth Amendment claims to be brought in a direct appeal. We also accept that a rule along these lines could prove “adequate” in many cases. Indeed, we've already recognized as much with respect to Colorado's Rule 35 itself. See, e.g., Gladney v. Copenhaven, 508 Fed.Appx. 717, 720 (10th Cir.2013); Wallin v. Estep, 433 Fed.Appx. 689, 690 (10th Cir.2011).

Our case, however, is peculiar because of its age.

How? A defendant's default of a state procedural rule won't prove “adequate” to bar our review of an underlying federal claim if the state rule wasn't “firmly established and regularly followed [at] the time of the purported procedural default.” Walker, 167 F.3d at 1344–45 (alteration omitted) (internal quotation marks omitted). After all, a “defendant cannot be expected to comply with a procedural rule that [did] not exist at the time,” of his supposed default, “and should not be deprived of a claim for failing to comply with” a rule that didn't exist. Id. at 1345;see also Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (procedural bar must be “ ‘firmly established and regularly followed’ by the time as of which it is to be applied”); Beard v. Kindler, 558 U.S. 53, 63–64, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009) (Kennedy, J., concurring) (state courts may not “bar review of federal claims by invoking new procedural rules without adequate notice to litigants”); Brian R. Means, Federal Habeas Manual § 9B:30 (2013 ed.) (collecting cases).

That principle is dispositive in this case. It is because the version of Rule 35 the State invokes in this case was added to the books only in 2004, many years after Mr. Wood purportedly defaulted his double jeopardy and Sixth Amendment claims by failing to include them in his direct appeal way back in 1989. See Colo. Sup.Ct., Rule Change 2004(2) (2004), available at http:// www. courts. state. co. us/ userfiles/ File/ Court_ Proba tion/ Supre me_ Court/ Rul e_ Changes/ 2004/ 2004 -2?. doc. In fact, the version of Rule 35 in force at the time of Mr. Wood's direct appeal (and putative default) expressly allowed defendants to choose whether to bring federal constitutional claims in a direct appeal or during collateral review. SeeColo. R.Crim. P. 35(c)(2) (1984); People v. Rodriguez, 914 P.2d 230, 254 (Colo.1996) (rejecting the notion that, at that time, “claims available on direct appeal may not be brought in a postconviction proceeding”).

Colorado acknowledges this complication but says it doesn't matter. It cites two state cases that, it says, have applied Rule 35's procedural bar language retroactively—to prisoners who didn't face its terms at the time of their direct appeal and who couldn't have complied with its terms even if they had wanted to. Because state courts have applied Rule 35 retroactively in this extraordinary fashion, the State seems to reason, so must we. See Appellee's 2010 Supp. Br. 26 (citing People v. Vondra, 240 P.3d 493 (Colo.App.2010), and People v. Walton, 167 P.3d 163 (Colo.App.2007)).

At least two problems confront this argument.

First, the premise on which Colorado proceeds turns out to be highly doubtful. One of the cases the State cites did not involve the retroactive application of Rule 35: the defendant there took his direct appeal two years after the rule was amended. See Vondra, 240 P.3d at 494; Notice of Appeal, People v. Vondra, No. 2005CR1772 (Colo.Dist.Ct. Jan. 10, 2007). In the remaining case, it does not appear that any argument against retroactive application was made by the pro se litigant, or that the issue was expressly confronted by the court. See Walton, 167 P.3d at 169. It is well-settled, moreover, that “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004). Given all this, we have before us little reason to believe that Colorado state courts would, if confronted with a competing argument, actually apply Rule 35's procedural bar in the retroactive fashion the State suggests.

Second and in any event, the State's conclusion doesn't follow from its (problematic) premise. Whether to apply procedural default doctrine out of respect for state rules is a federal question that state court decisions do not control. See Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). And, as we have already seen, a state procedural rule is not “adequate” to...