Lyons v. Weisner , 247 F. App'x 440 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7955
CARL E. LYONS,
Petitioner - Appellant,
versus
REGINALD WEISNER, Superintendent of Alexander
Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (CA-04-774)
Argued: January 30, 2007 Decided: September 11, 2007
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion. Judge
Traxler wrote an opinion concurring in the result.
ARGUED: Christopher R. Murray, DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellant. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Erwin Chemerinsky, James E. Coleman, Jr., Tina
Duan, Matthew W. Howell, Christopher Montville, Anastasia Wade,
DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for
Appellant. Roy Cooper, Attorney General, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl E. Lyons, a state prisoner, petitions for habeas relief,
pursuant to 28 U.S.C.A. § 2254(d) (West 2005), from his sentence of
360-441 months’ imprisonment, contending that he received a
sentence in violation of Blakely v. Washington, 542 U.S. 296(2004). Although the district court held, as the State conceded,
that the state court’s adjudication of his claim resulted in a
decision contrary to established Supreme Court precedent in
Blakely, the district court further concluded that this error was
harmless. Because the Blakely sentencing error was not harmless,
we must reverse and remand for further proceedings.
I.
Lyons entered an Alford plea to first-degree sexual offense
and first-degree kidnaping in Wake County Superior Court in North
Carolina. See North Carolina v. Alford, 400 U.S. 25 (1970). The
prosecutor proffered a statement of facts in support of the Alford
plea; Lyons neither objected to the statement, nor admitted the
facts it contained. On direct appeal, the Court of Appeals of
North Carolina summarized the prosecutor’s statement as follows:
Th[e] statement set forth the following facts. Defendant
invited a childhood friend and his family to temporarily
live in defendant’s home in Raleigh while the friend
looked for a house in the Triangle or Triad area. In
encouraging his friend, defendant announced that he loved
the friend’s 15-year-old son (“K.V.M.”) “like a son[.]”
Despite the friend’s initial reluctance, the family moved
into defendant’s home in the fall of 2001.
2
K.V.M., his father, his stepmother, and two step-
siblings lived in defendant’s home for approximately a
month and a half. During this time, K.V.M.’s father
traveled back and forth to Greensboro searching for a new
house for his family, always returning to defendant’s
home at night.
On 4 December 2001, K.V.M.’s father, stepmother, and
two step-siblings went out of town, but left K.V.M. in
Raleigh in defendant’s care. When K.V.M. returned from
school that day, defendant was the only person in the
house. Defendant and K.V.M. smoked marijuana together.
Later, although defendant tried to engage K.V.M. in
conversation, K.V.M. ignored him and played with a video
game that defendant had previously given him.
K.V.M.’s father called that evening to tell
defendant that he had purchased a home in Greensboro and
that the family would move the next day. At some point
after the call ended, defendant grabbed K.V.M. and took
him upstairs to a bedroom. Defendant told K.V.M. that
either K.V.M. was going to perform fellatio on him or
that defendant was going to perform fellatio on K.V.M.
When K.V.M. refused, defendant pulled a gun out of the
closet and pointed it at K.V.M. Through the night,
defendant repeatedly performed fellatio on K.V.M. while
displaying the gun.
At some point that night, defendant forced K.V.M. to
perform fellatio on him. When K.V.M. was unable to
complete the act and gagged, defendant made K.V.M. lie
down in bed with him and masturbate him until defendant
ejaculated on K.V.M.’s chest.
The next morning, defendant would not allow K.V.M.
to go toschool [sic]. Defendant swallowed several
hundred over-the-counter painkillers and became woozy.
He again performed fellatio on K.V.M., but then vomited
and became weak. K.V.M. told defendant that the smell of
vomit was making him ill and asked permission to go for
a walk. Defendant told K.V.M. he could go outside, but
that he had to return. K.V.M. went directly to a
laundromat and called his mother in New York. After the
call, he went to a police station where a police officer
interviewed him, writing in her report that K.V.M. was
violently shaking and crying.
3
The police arrived at defendant’s home and took
defendant to a hospital because of his consumption of
pills. During questioning by police, defendant asked if
K.V.M. was “okay” and said, “[T]ell him I am sorry.”
State v. Lyons, No. COA03-208, 2004 WL 291984, at *1-2 (N.C. Ct.
App. Feb. 17, 2004).
Based on Lyons’s Alford plea alone, the state court could have
imposed a maximum sentence of 288-355 months. However, at
sentencing, pursuant to the North Carolina Structured Sentencing
Act, see N.C. Gen. Stat. § 15A-1340.10 et seq. (1994), the court
relied on the facts proffered in the prosecutor’s statement to find
an aggravating factor -- that Lyons took advantage of a position of
trust or confidence to commit his offense -- and then sentenced
Lyons to 360-441 months’ imprisonment.
Lyons appealed to the Court of Appeals of North Carolina,
maintaining that the sentencing court did not have a sufficient
factual basis to find that he took advantage of a position of trust
to commit the offense. While his appeal was pending before the
Court of Appeals of North Carolina, Lyons also filed a Motion for
Appropriate Relief (MAR) for collateral review, contending, inter
alia, that the state court’s “sentencing procedure,” which “allowed
the trial court, rather than a jury, to find the aggravating
factor,” violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Jones v. United States, 526 U.S. 227 (1999). In further support of
this claim, he noted that the Supreme Court had granted certiorari
in State v. Blakely, 62 P.3d 889 (Wash. 2003), cert. granted sub
4
nom. Blakely v. Washington, 71 U.S.L.W. 3724 (U.S. Oct. 20, 2003)
(No. 02-1632).
The Court of Appeals of North Carolina resolved both the
direct appeal and MAR in the same opinion: it found that the
“undisputed” facts sufficed to support the trial judge’s finding of
the aggravating factor, and that Apprendi and Jones did not aid
Lyons; it did not mention the pending Blakely case. Lyons appealed
this decision to the Supreme Court of North Carolina, which
summarily denied discretionary review. State v. Lyons, 595 S.E.2d
694 (N.C. 2004). Lyons’s conviction became final ninety days after
this decision, on June 30, 2004. See Clay v. United States, 537
U.S. 522, 525 (2003) (holding that a state judgment becomes final
for habeas purposes when the time expires for filing a petition for
writ of certiorari to the Supreme Court, or ninety days following
the decision of the state's highest court).
On May 3, 2004, Lyons filed a second MAR, pro se, in which he
once again claimed, inter alia, that under Apprendi only a jury
could find the existence of the aggravating factor that increased
his sentence. On July 9, 2004, the MAR court rejected that claim.
It noted that after Lyons filed this pro se MAR, the Supreme Court
of the United States had decided Blakely on June 24, 2004, but the
MAR court concluded that Blakely did not assist Lyons because it
did not apply retroactively to cases on collateral review. State
5
v. Lyons, Nos. 01CRS112990, 01CRS112994 (County of Wake, N.C.
Superior Ct. July 9, 2004).
Lyons subsequently filed the instant pro se petition for
federal habeas relief pursuant to 28 U.S.C. § 2254(d). The
district court held that the state MAR court erred in its
determination that Blakely did not apply to Lyons’s claim because
the MAR court “inadvertently failed to recognize that a case is not
considered final on direct review until the 90-day time period to
file a certiorari petition to the United States Supreme Court
expires.” Nonetheless, the district court denied Lyons habeas
relief, concluding that any Blakely error was harmless. Lyons
noted a timely appeal. We granted a certificate of appealability
to consider Lyons’s claim of Blakely error, and appointed counsel
to represent him.
II.
The Antiterrorism and Effective Death Penalty Act (AEDPA) of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), provides that
federal courts may grant habeas relief only if an underlying state
court adjudication “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.” 28 U.S.C. § 2254(d)(1). Lyons contends that the state
courts’ adjudication of his case resulted in a decision that was
6
contrary to “clearly established Federal law” as determined by the
Supreme Court in Blakely.
In Blakely, the Supreme Court clarified its holding in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that the Sixth
Amendment requires that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” The Blakely Court explained
that the “‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” 542
U.S. at 303.
The North Carolina Structured Sentencing Act under which Lyons
was sentenced plainly violates the Blakely holding. For the North
Carolina statute requires a judge (rather than a jury) to find by
a preponderance of the evidence (rather than beyond a reasonable
doubt) aggravating factors that increase the maximum penalty for a
crime. Indeed, in response to the Supreme Court’s opinion in
Blakely, the Supreme Court of North Carolina itself has held that
those portions of the North Carolina Structured Sentencing Act that
“require judges to consider aggravating factors not found by a jury
or admitted by the defendant and which permit imposition of an
aggravated sentence upon judicial findings of such aggravating
factors by a preponderance of the evidence are unconstitutional.”
7
State v. Allen, 615 S.E.2d 256, 262 (N.C. 2005) (withdrawn on other
grounds).
Repeatedly conceding -- at the district court and in its
appellate brief -- that Blakely applies to Lyons’s case, the State
argues that Blakely error was harmless and thus affirmance proper.
We, however, asked the State to address at oral argument the
question of whether Blakely qualifies as “clearly established
Federal law” in this case given that although the Blakely opinion
had been issued when Lyons’s conviction became final for habeas
purposes and when the state MAR court considered Lyons’s claim, it
had not been issued when the Supreme Court of North Carolina issued
its order rejecting Lyons’s direct appeal. We attempted to pursue
this line of inquiry at oral argument, but the State once again
conceded that Blakely applies to Lyons’s appeal and requested that
we “rule on the harmless error issue.” Accordingly, we consider
here only whether conceded Blakely error requires reversal in this
case.
III.
Typically, in conducting harmless error review in habeas
cases, a court can grant relief only if, after consideration of the
entire record, it can conclude “with fair assurance” that an error
did not have “a substantial and injurious effect or influence” on
the jury’s verdict, Kotteakos v. United States, 328 U.S. 750, 765,
8
776 (1946), or is in “grave doubt” as to this question, O’Neal v.
McAninch, 513 U.S. 432, 436 (1995). See also Fry v. Pliler, No.
06-5247, 127 S. Ct. 2321, 2326-28, 2007 WL 1661463, at *5-6 (U.S.
June 11, 2007).1
Although by definition Blakely error arises from the lack of
a jury verdict with respect to a sentencing factor, it can
nevertheless be harmless. See Washington v. Recuenco, 548 U.S.__,
126 S. Ct. 2546, 2553 (2006). In determining the harmlessness of
an error in a case without a jury verdict, a court considers the
entire record and determines whether it can conclude “with fair
assurance” that a reasonable jury would have found beyond a
reasonable doubt that the defendant committed the acts establishing
the challenged sentencing factor, or if it is in “grave doubt” as
to this question. Cf. Patterson v. Haskins, 316 F.3d 596, 609 (6th
Cir. 2003) (applying this standard when considering on habeas
whether a trial court’s failure to instruct a jury on an element of
an offense constituted harmless error).
1
The Supreme Court initially enunciated this standard in
reviewing nonconstitutional errors on direct appeal of a federal
conviction in Kotteakos, and later adopted it as the appropriate
standard for collateral review of a state court criminal judgment
under 28 U.S.C. § 2254. See Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993). Then in O’Neal, the Court held that if a federal
court reviewing a state court judgment under § 2254 has “grave
doubt” as to the harmlessness of an error, it should “treat the
error as if it affected the verdict.” 513 U.S. at 436. In Fry,
the Court reiterated that the Brecht-O’Neal standard applies in all
§ 2254 cases, even those decided post-AEDPA. 127 S. Ct. at 2326-
28.
9
Here, the district court reasoned that the Blakely error was
harmless because “[b]ased on the evidence in the stenographic
transcript of the guilty plea proceeding, no reasonable jury could
have” failed to find that Lyons took advantage of a position of
trust to commit his offense. We cannot agree. We have no need to
fall back on O’Neal’s “grave doubt” rule, for we find it impossible
to conclude with any assurance, on the basis of the record in this
case, that a reasonable jury would have found beyond a reasonable
doubt this aggravating factor, which the sentencing judge found
only by a preponderance of the evidence based on the prosecutor’s
proffer.
Although Lyons did not object to the prosecutor’s proffer when
he entered his Alford plea, neither did he admit to the facts
contained in it. See Alford, 400 U.S. at 37. This proffer alone
does not give us fair assurance that a reasonable jury would have
found the presence of the position of trust or confidence
aggravating factor beyond a reasonable doubt.2
Indeed, the North Carolina courts have “upheld a finding of
the ‘trust or confidence’ factor in very limited factual
2
The victim’s mother, who was living in New York at the time
of the offense, testified at the sentencing hearing, “I gave . . .
my trust” to Lyons and “[w]hen [K.V.M.] told me [what] happened, I
knew exactly what he was talking about” because “we always heard
[about] things that [Lyons] ha[d] done.” This statement does not
appear to have been offered specifically in support of the
aggravating factor. In any event, it is too ambiguous to
constitute support for proof of the aggravating factor beyond a
reasonable doubt.
10
circumstances.” State v. Mann, 560 S.E.2d 776, 791 (N.C. 2002).
To apply the enhancement, a jury must find that both: (1) “a
position of trust existed,” and (2) the “defendant abused the
position of trust in order to commit the assault.” See State v.
Nicholson, 610 S.E.2d 433, 437 (N.C. Ct. App. 2005). Even if we
assume that the facts stated in the proffer are true, they do not
provide us with “fair assurance” that a reasonable jury would have
found beyond a reasonable doubt that a position of trust existed
between Lyons and the victim or that Lyons abused that position to
commit the assault.
As to the existence of a position of trust, the State asserts
that a position of trust must exist when a minor is left in the
care of the defendant overnight. But all of the cases on which the
States relies involve very different facts. For, in each of them
the minor victim had a familial or other close relationship with
the abuser, or was very young and so extremely dependent on the
defendant, or both. See State v. Farlow, 444 S.E.2d 913, 918 (N.C.
1994) (finding a position of trust when nine-year old victim
“essentially lived with [the] defendant” while the mother was
repeatedly away for her job as a long-distance truck driver); State
v. Holden, 365 S.E.2d 626 (N.C. 1988) (finding a position of trust
when victim was three-months old and the daughter of the
defendant); State v. Daniel, 354 S.E.2d 216, 218 (N.C. 1987)
(finding a position of trust when defendant mother was “singularly
11
responsible” for the infant victim’s “welfare”); State v. Gilbert,
385 S.E.2d 815, 817 (N.C. Ct. App. 1989) (finding a position of
trust when the victim was six-years old and “a frequent visitor in
defendant’s home”); State v. Caldwell, 355 S.E.2d 813, 814 (N.C.
Ct. App. 1987) (finding a position of trust between defendant and
his stepson and his stepson’s cousin, both of whom lived with the
defendant for the summer). In the case at hand, the facts
contained in the proffer indicate that the victim was not an
infant, not six, not nine, but fifteen-years old; moreover, he was
neither related in any way to Lyons nor did he have a particularly
close relationship with Lyons. Certainly it could not be said that
Lyons was “singularly” responsible for his “welfare.” Daniel, 354
S.E.2d at 218. Thus, a jury might well have concluded that no
position of trust existed.
Moreover, even if a jury were to find that a position of trust
did exist, the North Carolina Court of Appeals has held that a
defendant has not taken advantage of a position of trust or
confidence when the “defendant’s actions were accomplished as a
result of the use of force alone.” Nicholson, 610 S.E.2d at 437.
According to the prosecution’s proffer, Lyons accomplished his
actions solely through the use of force, by pointing a gun at
K.V.M. Thus, a reasonable jury, having been instructed on the
12
elements of the aggravating factor, could well have found that the
crime was not the result of abuse of a position of trust.3
Hence, we do not have fair assurance that a reasonable jury
would have found the aggravating factor to enhance Lyons’s
sentence. Accordingly, the state court’s Blakely error resulted in
Lyons receiving a sentence months, and perhaps years, longer than
he would otherwise have received. Thus, we cannot conclude that
the error did not have a “substantial and injurious effect” on
Lyons’s sentence. Kotteakos, 328 U.S. at 765, 776; see also
Brecht, 507 U.S. at 637. In sum, the error was not harmless.4
3
The North Carolina Court of Appeals in this case concluded
that the facts were “sufficient” to support a finding of the
aggravating factor; but that court operated under a pre-Blakely
regime where the trial judge needed to find the facts supporting
the aggravating factor only by a preponderance of the evidence.
That holding does not affect our conclusion that we have grave
doubt whether a jury could have found the facts supporting the
aggravating factor beyond a reasonable doubt.
4
The State also argues that Lyons’s Blakely claim is waived
and non-exhausted. With respect to waiver, relying on Tollett v.
Henderson, 411 U.S. 258 (1973), the State contends that Lyons
waived his right to have a jury sentence him by pleading guilty.
But Tollett only holds that when a defendant pleads guilty, “he may
not thereafter raise independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the
guilty plea.” Id. at 267 (emphasis added). Here, the
constitutional violation -- the judge finding the aggravating
factor by a preponderance of the evidence -- occurred after Lyons
pleaded guilty. Thus, Lyons did not waive his right to appeal this
constitutional violation.
With respect to exhaustion, the State contends that Lyons
failed to exhaust state remedies because he did not seek review of
the order denying his post-conviction MAR. In fact, Lyons
exhausted his claim by raising it on direct appeal to the Court of
Appeals of North Carolina and the Supreme Court of North Carolina,
which is sufficient in North Carolina to exhaust a claim for
13
IV.
For the foregoing reasons, we conclude that the district court
erred in denying Lyons habeas relief. We reverse the judgment of
the district court and remand the case with directions to issue a
writ of habeas corpus, unless the state court resentences Lyons
within a reasonable period of time to be set by the district court.
REVERSED AND REMANDED
federal habeas purposes. See Skipper v. French, 130 F.3d 603, 610
n.4 (4th Cir. 1997) (holding on federal habeas review of a North
Carolina conviction that “[e]xhaustion principles would not have
required” petitioner even to bring a MAR at all, so long as he
raised federal claims on direct appeal). Thus, the North Carolina
courts had a “full” and “fair opportunity” to consider the
substance of his claim, so it has been properly exhausted.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Baldwin
v. Reese, 541 U.S. 27, 29, 32 (2004) (holding that “[t]o provide
the State with the necessary opportunity, the prisoner must fairly
present his claim,” and concluding that “fair presentation”
requires simply that the prisoner’s petition or brief “alert [the
court] to the presence of a federal claim” (internal quotation
marks omitted)).
14
TRAXLER, Circuit Judge, concurring in the result:
Because of the concessions made by the State and the fact that
I have grave doubt as to the harmlessness of attributing the
aggravating circumstance to the appellant, I concur in the result
reached by my colleagues.
15