Lopez v. Williams , 59 F. App'x 307 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 19 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VALENTE LOPEZ,
Petitioner - Appellant,
v. No. 00-2247
D.C. No. CIV-97-952-MV
JOE WILLIAMS, Warden, (D. New Mexico)
New Mexico Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL , ANDERSON , and KELLY , Circuit Judges.
Petitioner Valente Lopez appeals the district court’s denial of his habeas
corpus petition. 1
The federal claim raised is a claim that the due process clause of
the Fourteenth Amendment was violated when Lopez was convicted of the crime
*
This order and judgment is not binding precedent, except under the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.
1
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.
of child abuse without requiring proof of an essential element of scienter. See
Fiore v. White , 531 U.S. 225, 228-29 (2001). Lopez was convicted of child abuse
under New Mexico law, which, at the time of his bench trial, required a showing
of only ordinary civil negligence. He was sentenced to nineteen years’
imprisonment. While his conviction was pending on appeal before the New
Mexico Court of Appeals, the New Mexico Supreme Court interpreted the child
abuse statute to require a showing of criminal negligence. The court of appeals,
however, affirmed his conviction and sentence. Lopez claims that his conviction
violates his federal constitutional right to have the State prove each element of
a criminal offense beyond a reasonable doubt. We granted a certificate of
appealability on this issue, and we reverse.
I. Procedural History
Lopez was charged with first-degree child abuse in violation of N.M. Stat.
Ann. § 30-6-1(C). 2
Up through the time that Lopez was convicted and sentenced,
New Mexico courts had interpreted the child abuse statute as a strict liability
2
§ 30-6-1(C) states:
Abuse of a child consists of a person knowingly, intentionally or
negligently, and without justifiable cause, causing or permitting a child to
be:
(1) placed in a situation that may endanger the child’s life or health;
(2) tortured, cruelly confined or cruelly punished; or
(3) exposed to the inclemency of the weather.
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statute, which required no showing of criminal intent. See, e.g., State v. Lucero ,
647 P.2d 406, 407-08 (N.M. 1982); State v. Crislip , 796 P.3d 1108, 1115
(N.M. Ct. App. 1990). After Lopez appealed his conviction and sentence to the
New Mexico Court of Appeals, but before that court decided his appeal, the
New Mexico Supreme Court decided Santillanes v. State .
In Santillanes, the highest court of New Mexico held that “our
interpretation of [§ 30-6-1(C)] requires that the term ‘negligently’ be interpreted
to require a showing of criminal negligence instead of ordinary civil negligence.”
849 P.2d 358, 362 (N.M. 1993). It went on to state:
[W]e conclude that the civil negligence standard, as applied to the
child abuse statute, improperly goes beyond its intended scope and
criminalizes conduct that is not morally contemptible. . . . We
construe the intended scope of the statute as aiming to punish
conduct that is morally culpable, not merely inadvertent. . . . We
interpret the mens rea element of negligence in the child abuse
statute, therefore, to require a showing of criminal negligence instead
of ordinary civil negligence. That is, to satisfy the element of
negligence in Section 30-6-1(C), we require proof that the defendant
knew or should have known of the danger involved and acted with
a reckless disregard for the safety or health of the child.
Id. at 365. Recognizing that its holding was a departure from previous judicial
interpretation of the statute, the court went on to address the appropriate
application of its decision to other cases. After analyzing prospective or
retroactive application under Linkletter v. Walker , 381 U.S. 618 (1965), the court
held that its decision was not retroactive and would be applied prospectively.
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Santillanes , 849 P.2d at 367. And, in the very last sentence of the opinion, the
court stated that its decision would “govern all cases which are now pending on
direct review, provided the issue was raised and preserved below, and all cases
presently pending but in which a verdict has not been reached.” Id. at 368.
After Santillanes was decided, Lopez amended his appeal to claim that his
conviction could not stand because the State did not prove criminal negligence,
which Santillanes held was an element of the crime. The court of appeals,
however, affirmed Lopez’s conviction and sentence, holding that he was not
entitled to the benefit of the Santillanes decision because he had not preserved the
issue at trial. The court held:
[A]lthough the standard of criminal negligence may not have been
met in this case, an issue we do not decide, the civil standard was
met. As we pointed out in the second calendar notice, the standard
set forth in Santillanes does not apply to this case. This case was
prosecuted and Defendant was sentenced long before the Santillanes
decision, and there is no indication that the Santillanes issue was
raised and preserved below. Therefore, the trial court relied on the
correct standard and we will uphold its determination.
R., Tab 1, Ex. F at 3-4 (citation omitted). Lopez then petitioned for a writ of
certiorari, seeking review by the New Mexico Supreme Court; that petition was
denied.
Lopez sought state post-conviction relief, again arguing that his conviction
violated his federal due process rights in light of the Santillanes decision. The
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state court summarily denied the post-conviction petition, and the New Mexico
Supreme Court denied Lopez’s request for review.
Having exhausted his state remedies, Lopez filed a petition for habeas
relief pursuant to 28 U.S.C. § 2254 in federal district court. The magistrate judge
recommended that the petition be denied; the district court summarily adopted the
magistrate’s findings and recommendation and dismissed the habeas petition.
II. AEDPA and Procedural Bar
If a state court denies a federal claim on the merits, we review the claim
within the constraints of the Antiterrorism and Effective Death Penalty Act
(AEDPA). McCracken v. Gibson , 268 F.3d 970, 975 (10th Cir. 2001),
cert. denied, 123 S. Ct. 165 (2002). We may grant relief 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,’ . . . or ‘was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.’” Id. (quoting 28 U.S.C.
§ 2254(d)(1) and (2)).
If a state court denies a federal claim on the basis of a separate state
procedural deficiency, we cannot reach the merits of the claim at all unless (1) the
state ground of decision was not adequate and independent of federal law; or
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(2) the petitioner has established a basis for excusing his procedural default.
Id. at 976.
And, finally, if a state court did not reach the merits of a federal claim, and
our review is not barred by an adequate and independent state procedural
disposition, we review the claim on the merits without constraint imposed by
virtue of the state court judgment: we review the federal district court’s legal
conclusions de novo and factual findings for clear error. Id. at 975.
In deciding whether the state court addressed the merits of Lopez’s federal
due process claim, we look to the substance of the state court disposition. Lopez
argued on appeal that his conviction violated federal due process, in light of
Santillanes’ holding that criminal negligence was an essential element of felony
child abuse, because the State had been required to prove only ordinary
negligence, not criminal negligence, at his trial. The New Mexico Court of
Appeals refused to apply Santillanes to Lopez’s case and denied relief because
Lopez did not preserve the mens rea issue at trial. However it is denominated,
that is plainly a procedural default ruling.
Recently, in Cargle v. Mullin we clarified when a state appellate court’s
rejection of an unpreserved claim is properly deemed a procedural default,
even when it has not been explicitly designated as such by the state court.
___ F.3d ___, Nos. 01-6027, 01-6041, 2003 WL 170427, at *7 (10th Cir. Jan. 27,
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2003). Although Cargle involved the slightly different context of appellate
plain-error review, it is instructive. In Cargle , we concluded that:
A state court may deny relief for a federal claim on plain-error
review because it finds the claim lacks merit under federal law. In
such a case, there is no independent state ground of decision and,
thus, no basis for procedural bar. Consistent with that conclusion,
the state court’s disposition would be entitled to § 2254(d) deference
because it was a form of merits review. On the other hand, a state
court could deny relief for what it recognizes or assumes to be
federal error, because of the petitioner’s failure to satisfy some
independent state law predicate. In such a case, that non-merits
predicate would constitute an independent state ground for decision
which would warrant application of procedural-bar principles on
federal habeas. If the state procedural bar were then excused for
some reason, the federal court would be left to resolve the
substantive claim de novo, unconstrained by § 2254(d).
Id. (citation omitted) . The case before us, unencumbered by the extra layer of
plain-error review, presents an even more straightforward case of procedural bar.
Here, the state court summarily rejected Lopez’s federal claim because he failed
to satisfy an independent state predicate–he did not preserve the issue at trial.
The state court’s preservation requirement, a non-merits predicate to its rejection
of Lopez’s federal claim, is plainly an independent state ground that implicates
procedural-bar principles on federal habeas. Id.
The critical question, therefore, is whether there is reason to excuse the
procedural bar.
We will not consider issues on habeas review that have been
defaulted in state court on an independent and adequate state
procedural ground, unless the petitioner can demonstrate cause and
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prejudice or a fundamental miscarriage of justice. A state procedural
ground is independent if it relies on state law, rather than federal
law, as the basis for the decision. To be adequate, a state’s
procedural rule must have been firmly established and regularly
followed when the purported default occurred.
McCracken , 268 F.3d at 976 (citations and quotations omitted). It is clear that the
state’s procedural bar in this case was independent of federal law. The bar rests
on the lack of issue preservation, which is clearly a matter of state law. It is not
at all clear, however, that this procedural rule–that lack of proof on an essential
element of a crime must be preserved to receive any review on appeal (including
fundamental-error review)–was firmly established or regularly followed at the
time of Lopez’s trial. This is critical here because relieving the State of its
burden to prove an essential element of the offense is fundamental error. See
State v. Osborne , 808 P.2d 624, 632 (N.M. 1991). 3
The concept of fundamental error is firmly established in New Mexico law.
In a pre- Santillanes decision, the New Mexico Supreme Court held that “[a]n
exception to the general rule barring review of questions not properly preserved
below . . . applies in cases which involve fundamental error. Fundamental error
cannot be waived.” Id. (quotation omitted). Thus, for example, because the
failure to instruct on the essential elements of an offense is fundamental error,
“it is irrelevant that the defendant was responsible for the error by failing to
3
This is the same error regardless of whether trial is by jury or the court.
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object to an inadequate instruction or, as occurred in this case, by objecting to an
instruction which might have cured the defect in the charge to the jury.” Id.Notably, in Osborne , the court was faced with a situation similar to Lopez’s.
While that defendant’s direct appeal was pending, the New Mexico Supreme
Court decided that “unlawfulness” was an essential element of criminal sexual
contact of a minor, where it had not previously been recognized as such. Under
the circumstances of that case, the high court applied fundamental-error review
and reversed the conviction. Id. at 633.
In a post- Santillanes case, State v. Kirby , 930 P.2d 144 (N.M. 1996), the
New Mexico Supreme Court was again faced with a similar situation. After the
defendant had been tried and convicted, but before his appeal had been decided,
the state appeals court decided that criminal negligence was an element of
involuntary manslaughter. The defendant had not, however, objected at trial to
the lack of a criminal negligence element in his jury instructions. Nonetheless,
the appeals court applied the intervening decision in the case. The state supreme
court affirmed, holding that omitting an essential element from the jury
instructions was fundamental error subject to correction on appeal despite the lack
of preservation at trial. Kirby , 930 P.2d at 145-46. Moreover, the court expressly
noted Santillanes’ unexplained disregard for this distinction. The Kirby court
recognized that “[r]esponsibility for instructing the jury rests solely with the trial
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court. It is the duty of the court, not the defendant, to instruct the jury on the
essential elements of a crime. This distinction unfortunately was not drawn in the
preservation proviso in Santillanes , but it is a distinction that we must make in
this case.” Id (quotation and citation omitted) ; see also State v. Acosta , 939 P.2d
1081, 1084-86 (N.M. Ct. App. 1997) (following Osborne and Kirby and applying
fundamental-error principle to reverse conviction for failure to instruct on
essential element recognized in decision issued after defendant’s trial but before
conclusion of appeal). 4
In addition to these New Mexico authorities that seem particularly
applicable to our case, the following cases represent an illustrative, though not
exhaustive, list of cases in which New Mexico courts afforded fundamental-error
review to issues that were not preserved at trial: State v. Castro , 53 P.3d 413,
413-14 (N.M. Ct. App. 2002) (reversing conviction); State v. Cunningham ,
998 P.2d 176, 178-79 (N.M. 2000); State v. Green, 861 P.2d 954, 960
(N.M. 1993) (reversing conviction); State v. Elmquist , 844 P.2d 131, 135
4
We stress that retroactivity is not the issue in this case. Santillanes clearly
stated that its holding would apply to cases pending on direct review. 849 P.2d at
368; see generally State v. Rogers , 602 P.2d 616, 618 (N.M. 1979) (holding that
concerns of retroactive application arise “only for causes that have been
finalized,” which means that appeal rights have been exhausted). This case is
about claim preservation, i.e., procedural default.
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(N.M. Ct. App. 1992) (reversing conviction); Ortiz v. State , 749 P.2d 80, 82-83
(N.M. 1988) (reversing conviction).
Our examination of New Mexico law shows that the procedural default rule
enforced against Lopez to bar even fundamental-error review, was not firmly
established and regularly followed either before, at the time of, or after Lopez’s
trial. Consequently, the procedural default in this case does not preclude federal
habeas review of the merits of Lopez’s federal claim. See Romano v. Gibson ,
239 F.3d 1156, 1170 (10th Cir. 2001), cert. denied , 534 U.S. 1045 (2001). We
are left to exercise our independent judgment in addressing the merits of Lopez’s
claim. See McCracken, 268 F.3d at 975.
III. Merits
“[T]he Due Process Clause of the Fourteenth Amendment forbids a State to
convict a person of a crime without proving the elements of that crime beyond a
reasonable doubt.” Fiore , 531 U.S. at 228-29 (holding conviction based on
conduct that statute, properly interpreted, does not prohibit violates due process).
The New Mexico Supreme Court has held that the “negligence” element of the
child abuse statute requires proof of criminal negligence instead of ordinary
negligence: “proof that the defendant knew or should have known of the danger
involved and acted with a reckless disregard for the safety or health of the child.”
Santillanes , 849 P.2d at 365. It is clear from the record that the bench trial was
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conducted under the assumption, by both the parties and the court, that the State
was not required to prove intent and that proof beyond a reasonable doubt of civil
negligence would satisfy the State’s burden. R., Trial Tape #4, 1, 9, 12. Our
review of the trial tapes leads us to conclude that the State was not required to
prove criminal negligence beyond a reasonable doubt, in violation of Lopez’s
right to due process under the Fourteenth Amendment. This conclusion does not,
however, end our inquiry. We will grant habeas relief for a constitutional
violation only if the error was not harmless.
“When a federal judge in a habeas proceeding is in grave doubt about
whether a trial error of federal law had ‘substantial and injurious effect or
influence in determining the jury’s verdict,’ that error is not harmless.” O’Neal v.
McAninch , 513 U.S. 432, 436 (1995) (quoting Brecht v. Abrahamson , 507 U.S.
619, 637 (1993)). As we stated, there were repeated references at trial to the fact
that Lopez could be convicted upon proof of ordinary civil negligence, that the
crime required no criminal intent. In addition, in the course of stating his finding
of guilt, the trial judge told Lopez that it was “very clear . . . it was accidentally
done. I don’t think there was any testimony . . . that would indicate you
intentionally harmed the child. But I do find you did commit child abuse
negligently.” R., Trial Tape #12.
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Our review of the trial tapes does not convince us that the trial court found
Lopez guilty upon a showing of criminal negligence; the evidence of criminal
negligence is decidedly underwhelming. 5
We are left with, at the very least, grave
doubt as to whether the court’s conclusion that the state was not required to prove
criminal negligence had substantial and injurious effect or influence in
determining its verdict. As a result, we cannot say that this error, which clearly
affects substantial rights, was harmless, and we grant habeas relief. See O’Neal ,
513 U.S. at 445.
We REVERSE the district court’s judgment and grant the writ, with the
condition that the State may retry Lopez within a reasonable time. If retrial is not
commenced within a reasonable time, the State may be subject to further federal
proceedings regarding his release. See Cargle , 2003 WL 170427, at *26.
Entered for the Court
David M. Ebel
Circuit Judge
5
On the other hand, we cannot say that the evidence of criminal negligence
is so deficient that no rational trier of fact could have found criminal negligence
beyond a reasonable doubt, see Jackson v. Virginia , 443 U.S. 307, 319 (1979),
which allays any double jeopardy concerns that might arise regarding retrial. See
Cargle , 2003 WL 170427, at *25-26.
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