Williams v. Trammell , 631 F. App'x 587 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 19, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
STERLING B. WILLIAMS,
Petitioner - Appellant,
v. No. 15-5029
(D.C. No. 4:02-CV-00377-JHP-FHM)
MAURICE WARRIOR, Interim Warden, (N.D. Okla.)
Oklahoma State Penitentiary,*
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
_________________________________
After we vacated Sterling Williams’ conviction for first-degree murder on a
prior appeal, see Williams v. Trammell, 539 F. App’x 844 (10th Cir. 2013), the
district court granted a conditional writ ordering his release unless the State timely
initiated proceedings for his retrial. The district court later ordered the habeas case
*
Pursuant to Fed. R. App. P. 43(c)(2), Anita Trammell is replaced by Maurice
Warrior, as Interim Warden of the Oklahoma State Penitentiary, effective October 28,
2015.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
closed when the State represented that retrial proceedings had begun in state court.
Contending that the State had not complied with the requirement for timely retrial,
Mr. Williams filed a motion under Fed. R. Civ. P. 60(b) asking the district court to
reopen the case and enforce the conditional writ. The district court denied the motion
and this appeal followed. We affirm the ruling of the district court.
Our precedent requires Mr. Williams to obtain a certificate of appealability
(COA) under 28 U.S.C. § 2253(c) to secure appellate review of the district court’s
order denying Rule 60(b) relief. See Spitznas v. Boone, 464 F.3d 1213, 12118
(10th Cir. 2006) (holding “it would be illogical that a COA would be required to
appeal from a habeas judgment, but not from the district court’s order denying Rule
60(b) relief from such a judgment”). A more recent Supreme Court decision may
lead this court to revisit that precedent at some point.1 But we need not do so here,
because we hold that reasonable jurists could find the denial of Rule 60(b) relief
debatable under the circumstances (and the petition has already been found to state a
constitutional claim), warranting a COA in any event. See Slack v. McDaniel,
1
Three years after Spitznas, the Supreme Court held in Harbison v. Bell,
556 U.S. 180, 183 (2009), that orders relating to appointment of counsel fell outside
the statutory requirement for COA. While that particular holding is not relevant here,
the Court based it on a strict reading of the language in 28 U.S.C. § 2253(c)(1)(A)
that limits the COA requirement to “final orders that dispose of the merits of a habeas
corpus proceeding.” Orders denying Rule 60(b) relief are final appealable orders,
Stubblefield v. Windsor Capital Group, 74 F.3d 990, 993 (10th Cir. 1996), and they
arguably dispose of the merits of a habeas proceeding, albeit on a procedural basis, so
it appears Harbison may not have abrogated Spitznas in this respect—at least no
published decision of this court has so held. But cf. Wilson v. Sec. Pa. Dep’t of
Corr., 782 F.3d 110, 115 (3d Cir. 2015) (noting Harbison “undermined somewhat”
the “vitality” of circuit precedent requiring COA for Rule 60(b) appeal, but not
resolving issue because COA was warranted in any event).
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529 U.S. 473, 484 (2000) (explaining COA standard for procedural ruling). We
therefore grant a COA and, upon full consideration of the arguments in
Mr. Williams’ appeal brief, affirm the order of the district court.2
The timing of a few procedural matters is important to understanding our
disposition of this appeal. On August 23, 2013, this court remanded the case to the
district court with instructions to conditionally grant the writ “subject to the state’s
right to retry Williams within a reasonable time.” Williams, 539 F. App’x at 856.
The district court effectuated that remand-directive by ordering the writ to issue
unless the State “commence[d] new trial proceedings . . . within 180 days of [October
23, 2013].” Aplt. App. at 37. Some ninety days later, on January 22, 2014, the state
trial court appointed counsel and scheduled dates for a status conference (March 18,
2014), discovery hearing (August 26, 2014), pre-trial conference (September 30,
2014), and jury trial (November 23, 2014). The State reported this information to the
district court on March 5, 2014, in conjunction with a motion to close the habeas case
based on its compliance with the temporal condition imposed on its right to retry
Mr. Williams.3 On March 10, 2014, the district court granted the motion and closed
the case, “find[ing] that the State of Oklahoma has complied with the Court’s Order
by commencing new trial proceedings.” Id. at 60.
2
Because we conclude that the arguments advanced by Mr. Williams
ultimately do not warrant appellate relief, we have not ordered the State to file an
answer brief.
3
The State evidently waited to file its motion to close until the Supreme Court
denied its petition for a writ of certiorari from our decision on Mr. Williams’s prior
appeal. See Trammell v. Williams, 134 S. Ct. 1492 (2014).
3
As it happened, the State had served the motion to close on Mr. Williams but
not his habeas counsel (who should have been served, see Fed. R. Civ. P. 5(b)(1))
and, according to Mr. Williams, he did not receive the motion until the day after it
was granted. He later retained new counsel who, on September 23, 2014, filed a
Rule 60(b) motion asserting that (1) closing the habeas case without affording
Mr. Williams an opportunity to respond to the State’s motion violated his due process
rights, and (2) had Mr. Williams been given an opportunity to respond, he would
have argued that the actions of the state trial court did not constitute “commencement
of trial proceedings” and, consequently, the State had failed to comply with the
condition imposed on its right to retry Mr. Williams. Aplt. App. at 63 (emphasis
omitted). He insisted that the district court’s reference to commencement of “trial
proceedings” required commencement of actual trial because of this court’s use of
the word “retry” in our remand order. And, citing Gomez v. United States, 490 U.S.
858, 872-73 (1989), he argued that trial commences “when voir dire begins”—which
had not taken place within the 180-day period specified. Aplt. App. at 63.
The district court denied the Rule 60(b) motion, holding that “because the
State has taken affirmative steps to commence and diligently and expeditiously
pursue the reprosecution of Petitioner, the State has been and continues to be in
compliance with the Court’s Order requiring commencement of new trial
proceedings.” Id. at 111. The district court explained that Gomez, which dealt with a
magistrate judge’s authority to conduct voir dire, was inapposite. In particular, the
passage cited by Mr. Williams commented on such extraneous matters as when trial
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begins for purposes of double jeopardy (when the jury is empanelled and sworn) and
whether voir dire is a critical stage of criminal proceedings triggering a defendant’s
right to be present—specialized constitutional inquiries that were not involved in the
district court’s enforcement of its order conditionally granting the writ. See id. at
110-11. Rather, “[w]ith respect to the commencement of new trial proceedings,
[that] Order was intended to encompass all aspects of a reprosecution,” not the date
trial itself was to commence. Id. at 111.
The district court did not address separately Mr. Williams’ due process
objection about the lack of an opportunity to respond to the State’s motion to close.
But given the district court’s rejection of his underlying claim that the State had
failed to comply with the condition imposed on its right to retry him—a claim by
then advanced and fully briefed on Mr. Williams’ behalf by counsel—we can safely
assume the district court tacitly concluded that any procedural error with respect to
the initial handling of the motion to close was harmless.
Before addressing the objections Mr. Williams advances in his appeal brief,
we clarify an important point about the language used by this court in our prior
remand and by the district court in its order effectuating that remand. We directed
that the writ be conditionally granted subject to the State’s right, within a reasonable
time, to retry Mr. Williams. The district court was left to translate this general
directive into operative terms, which it did by specifying that the State had 180 days
to begin trial proceedings against Mr. Williams. Given the reduction of the broadly
stated deadline to a strictly delimited 180 days, it is not surprising—particularly in
5
the case of a first-degree murder prosecution—that this temporal condition would be
linked to the commencement of proceedings leading to retrial, rather than the start of
trial itself. That was, in fact, the intent of the district court, as it explained when
rejecting Williams’ position that the reference to trial proceedings equated with
actual retrial. This of course does not answer whether the district court properly
translated our remand-directive, but Mr. Williams has not specifically raised an
objection in that regard on appeal. And even if he had, we would hold that the
district court did not abuse its broad discretion in framing the particular terms of the
writ it was directed to grant on remand from Mr. Williams’ prior appeal. See
generally Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012) (noting district
court’s “broad discretion to craft appropriate habeas relief” and our deferential
review of its exercise of that discretion).
The two issues Mr. Williams seeks to raise on appeal need not detain us long.
He first contends that the procedural error in not affording him an opportunity to
oppose the State’s motion to close was of such a fundamental nature that he should
be afforded relief regardless of the lack of any demonstrable prejudice. He cites no
relevant authority for that point, and, in fact, our precedent is squarely to the
contrary. In Stanko v. Davis, 617 F.3d 1262, 1271 (10th Cir. 2010), we held that an
initial failure to provide a petitioner notice and an opportunity to oppose dismissal of
his habeas petition was harmless error given his subsequent opportunity to argue the
matter on appeal. See generally G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824,
832 (10th Cir. 1990) (noting due process violations may be cured by subsequent
6
provision of adequate process). Mr. Williams has had the opportunity to oppose the
closing of his habeas case in his Rule 60(b) motion, his response to the State’s reply
to the motion, and his brief on this appeal. The due process error he complains of has
been rendered harmless by subsequent curative actions.
Mr. Williams also contends that his Sixth Amendment right to speedy trial has
been denied. He did not advance this contention in the district court and he has not
argued that he would be entitled to relief for plain error. Under our precedent, the
point is therefore forfeited, Martinez v. Angel Exploration, LLC, 798 F.3d 968, 974
(10th Cir. 2015), and we therefore decline to consider it as a basis for granting a
COA, see, e.g., United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).
For the reasons stated above, we grant a COA and affirm the order of the
district court.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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