Churchwell v. Saffle ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 19 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
ANTHONY CHURCHWELL,
Petitioner-Appellant,
v. No. 00-6048
JAMES L. SAFFLE, (D.C. No. CV-99-777-M)
(W.D.Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Anthony Churchwell appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition for habeas corpus relief. We exercise jurisdiction pursuant to 28
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 1291, deny permission to proceed on appeal in forma pauperis, deny a
certificate of appealability, and dismiss the appeal.
I.
In 1997, Churchwell was convicted in Oklahoma state court of shooting
with intent to kill (Okla. Stat. tit. 21, § 652), robbery with a firearm (Okla. Stat.
tit. 21, § 801), and burglary in the first degree (Okla. Stat. tit. 21, § 1431), each
after former convictions of two or more felonies. The trial court sentenced
Churchwell to an aggregate 200-year sentence. Churchwell appealed to the
Oklahoma Court of Criminal Appeals, arguing (1) the admission of his non-
testifying co-defendant’s confession violated Bruton v. United States , 391 U.S.
123 (1968), (2) his convictions for robbery and burglary violated the double
jeopardy clause, and (3) the sentences imposed were excessive. The Oklahoma
Court of Criminal Appeals rejected Churchwell’s double jeopardy and excessive
sentence claims, but concluded the admission of his co-defendant’s confession
violated Bruton . The court determined the error was harmless beyond a
reasonable doubt because of the substantial evidence of Churchwell’s guilt and
affirmed his convictions and sentences.
Churchwell filed an application for post-conviction relief in state court,
arguing (1) ineffective assistance of appellate counsel, (2) error in the admission
of evidence of former convictions, (3) insufficient evidence of former
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convictions, (4) ineffective assistance of trial counsel, (5) ineffective assistance
of trial counsel because of conflict of interest, and (6) error in the acceptance of a
stipulation as to his prior convictions. The state district court denied Churchwell
post-conviction relief, concluding he did not prove ineffective assistance of
appellate counsel and failed to show why he did not raise his remaining claims on
direct appeal. Churchwell filed a motion to set aside the order, contending he did
not receive a copy of the court’s order and was unable to file a timely appeal.
The state district court denied the motion, finding Churchwell was transferred to
a new facility on December 2, 1998, but did not file a notice of change of address
with the court until January 15, 1999, and that Churchwell had not demonstrated
he was denied an appeal “through no fault of his own.” Churchwell then filed a
petition for writ of mandamus to order the state district court to grant him an
appeal out of time or allow him to show he was denied an appeal through no fault
of his own. The Court of Criminal Appeals denied the petition for mandamus,
concluding Churchwell had not demonstrated he was denied an appeal through no
fault of his own.
In June 1999, Churchwell filed a 28 U.S.C. § 2254 petition for habeas
corpus relief in federal district court, alleging the same claims he raised on direct
appeal and in his petition for post-conviction relief. The magistrate judge
recommended that relief be denied. The magistrate determined the conclusions
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of the Oklahoma Court of Criminal Appeals that the Bruton violation was
harmless error and there was no double jeopardy violation were not contrary to,
or an unreasonable application of, clearly established Supreme Court precedent.
The magistrate concluded the sentence was within the statutory limits prescribed
in Oklahoma for multiple habitual offender offenses. The magistrate further
determined that Churchwell failed to exhaust his state law remedies on his
remaining claims by not appealing the denial of post-conviction relief to the
Oklahoma Court of Criminal Appeals. The magistrate noted there is an exception
to the exhaustion requirement when the petitioner has procedurally defaulted his
federal claims in state court and concluded that requiring Churchwell to exhaust
his claims would be futile because they would be procedurally barred. The
magistrate determined that Churchwell’s procedural default in state court barred
habeas review of his remaining claims. Churchwell objected to the magistrate’s
report and recommendation. The district court adopted the magistrate’s report
and recommendation, denied Churchwell’s § 2254 petition, and denied
Churchwell a certificate of appealability. The district court did not rule on
Churchwell’s motion to proceed on appeal in forma pauperis, so we will deem the
motion denied.
II.
On appeal Churchwell argues (1) the district court erred in not dismissing
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his § 2254 petition without prejudice, (2) his conviction for robbery with a
firearm and burglary violated the double jeopardy clause, and (3) the Bruton
violation was not harmless error. In reviewing the denial of habeas relief, we
review the district court’s factual findings under a clearly erroneous standard and
its legal conclusions de novo. Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir.
1999), cert. denied , 120 S. Ct. 944 (2000). Section 2254(d) provides that a
petitioner in the custody of a state court shall not be granted habeas relief
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–(1) resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
See Williams v. Taylor , 120 S. Ct. 1495, 1506-08 (2000) (clarifying § 2254(d)
standard of review).
Churchwell contends the district court erred in denying his habeas petition
rather than dismissing it without prejudice, because it contained a mixture of
exhausted and unexhausted claims. Churchwell cites to Rose v. Lundy , in which
the Supreme Court held that “a district court must dismiss habeas petitions
containing both unexhausted and exhausted claims.” 455 U.S. 509, 522 (1982).
Churchwell did not raise this issue in his objection to the magistrate’s report and
recommendation, thereby waiving any objection. See United States v. One Parcel
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of Real Property , 73 F.3d 1057, 1060 (10th Cir. 1996) (holding that “a party’s
objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or
for appellate review”).
We also conclude that Churchwell’s dismissal argument is without merit.
“[D]ismissal without prejudice for failure to exhaust state remedies is not
appropriate if the state court would now find the claims procedurally barred on
independent and adequate state procedural grounds.” Smallwood v. Gibson , 191
F.3d 1257, 1267 (10th Cir. 1999) (citing Coleman v. Thompson , 501 U.S. 722,
735 n.1 (1991)). Churchwell would be barred from presenting these unexhausted
claims again in a subsequent state post-conviction relief proceeding. See Okla.
Stat. tit. 22, § 1086. This is an independent and adequate state procedural ground
that bars his claims. See Smallwood , 191 F.3d at 1268 (defining “independent”
and “adequate”).
Churchwell contends his robbery with a firearm and burglary convictions
violated the double jeopardy clause and the state court’s decision to the contrary
ignored Supreme Court precedent in Blockburger v. United States , 284 U.S. 299(1932), and was an unreasonable application of clearly established federal
constitutional law. The Oklahoma Court of Criminal Appeals cited Cannon v.
Oklahoma , 827 P.2d 1339 (Okla. Ct. Crim. App. 1992), in concluding
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Churchwell’s convictions did not violate the double jeopardy clause. The court
in Cannon concluded convictions for burglary and robbery did not violate the
double jeopardy clause because the burglary was complete upon the entry of the
home and the robbery involved the subsequent theft of property. Id. at 1342.
Churchwell has not shown how the state court’s decision was contrary to
Supreme Court precedent or that it involved an unreasonable application of the
facts.
Churchwell contends the state court’s conclusion that the Bruton violation
was harmless was contrary to, and an unreasonable application of, clearly
established federal constitutional law. Bruton violations are subject to harmless
error analysis. See United States v. Glass , 128 F.3d 1398, 1404 (10th Cir. 1997)
(quoting Schneble v. Florida , 405 U.S. 427, 430 (1972)). The magistrate detailed
the evidence against Churchwell establishing his guilt. See Report and
Recommendation of Dec. 16, 1999, at 8-10. We agree there was overwhelming
evidence of Churchwell’s guilt, including the victim’s testimony identifying
Churchwell as the person who entered his home uninvited, pointed a gun at him,
and took a ring from him. The admission of the co-defendant’s confession was
harmless beyond a reasonable doubt.
III.
We DENY Churchwell a certificate of appealability, DENY him leave to
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proceed on appeal in forma pauperis, and DISMISS the appeal. The mandate
shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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