Clemons v. McKune , 183 F. App'x 733 ( 2006 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    June 6, 2006
    FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
    Clerk of Court
    M ARC US CLEM ONS,
    Petitioner-A ppellant,
    v.                                                 No. 05-3123
    (D.C. No. 03-CV-3217-RDR)
    DAVID M CKUNE, W arden,                               (D . Kan.)
    Lansing Correctional Facility;
    CARLA J. STOVALL, Attorney
    General of K ansas,
    Respondents-Appellees.
    OR D ER AND JUDGM ENT *
    Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.
    M arcus Clemons was convicted by the State of Kansas of premeditated
    first-degree murder, attempted first-degree murder, and criminal possession of a
    firearm. He appealed the convictions unsuccessfully to the Kansas Supreme
    *
    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. 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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    Court and then filed a federal habeas petition pursuant to 
    28 U.S.C. § 2254
    , which
    the district court denied. W e granted a certificate of appealability to consider
    whether (1) the defendant’s waiver of a jury trial was knowing, voluntary, and
    intelligent; and (2) there was sufficient evidence of premeditation to support the
    guilty verdicts of first-degree murder and first-degree attempted murder.
    Exercising our jurisdiction under 
    28 U.S.C. §§ 1291
     and 2253(a), we affirm.
    Background
    The underlying facts of Clemons’s case are discussed at length in the
    Kansas Supreme Court’s decision affirming his convictions. See State v.
    Clemons, 
    45 P.3d 384
     (Kan. 2002). W e rehearse them here only insofar as
    necessary to explain our resolution on appeal. On the morning of June 29, 1999,
    Clemons and his friend, Tony Davis, got into an argument with Satin Huffman
    and Arthur M cPherson as the four w alked to a smoke shop in W ichita, Kansas.
    There was initially talk of a fist fight, but the argument quickly escalated and
    ended with Clemons shooting Huffman and M cPherson. Although he shot
    Huffman at close range in the head and leg, Huffman survived. M cPherson,
    however, died from a gunshot wound in his back.
    Clemons’s trial was set for August 7, 2000. On July 14, 2000, Clemons
    informed the judge that he was unhappy with his court-appointed attorney and
    wished to have another attorney appointed. If he could not have another attorney,
    Clemons said that he w anted to represent himself. The judge denied C lemons’s
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    request for new counsel, and the issue of self-representation was held over until
    July 21, 2000. On that date, the judge explained at length the pitfalls of
    self-representation and advised Clemons against representing himself. The judge
    specifically warned Clemons about the difficulty that he would have preparing for
    trial while in custody. The judge advised Clemons that he could have counsel
    appointed at any time, but that having counsel brought back into the case at a
    later date w ould not be grounds for a continuance. After listening to the judge’s
    warnings, Clemons maintained that he wished to represent himself, and the judge
    concluded that Clemons had knowingly and intelligently waived his right to
    counsel.
    On August 7, 2000, the day his trial was set to begin, Clemons informed the
    court that he wished to waive his right to a jury trial. It is clear from the
    transcript of the proceeding that he did so because he believed that removing the
    case from the jury trial calendar would yield a continuance. After getting an
    assurance from Clemons that he wished to waive his right to a jury, the judge set
    the case for a bench trial three weeks later. W hen the day of his bench trial
    arrived, Clemons informed the court that he would not be representing himself,
    and that his court-appointed attorney would try the case. His attorney requested a
    continuance, which was denied. Later that day, the judge found Clemons guilty
    on all counts.
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    Discussion
    Standard of Review
    [A] federal court may not grant habeas relief on a claim adjudicated
    on the merits in state court unless 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.
    Young v. Workman, 
    383 F.3d 1233
    , 1236 (10th Cir. 2004) (quotations omitted);
    see 
    28 U.S.C. § 2254
    (d). Clemons’s petition invokes both sub-sections (1) and
    (2) of § 2254(d). He argues that the trial judge impermissibly forced him to
    waive his right to a jury trial in violation of clearly established federal law and
    that his convictions for first-degree premeditated murder and attempted murder
    were based on an unreasonable determination of the facts in light of the evidence
    presented.
    Jury Trial Waiver
    Clemons’s Sixth Amendment argument is two-fold. First, he claims that
    the state court impermissibly required him to give up his right to a jury trial in
    exchange for a continuance. Since he needed the continuance in order to
    effectuate his constitutional right to represent himself, he argues that the state
    court effectively forced him to choose between two constitutional guarantees in
    violation of Simmons v. United States, 
    390 U.S. 377
    , 394 (1968). W e are not
    persuaded. W hether Clemons w as forced to choose between his right to
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    self-representation and his right to a jury trial turns on whether the trial court’s
    denial of the continuance was proper. 1 See Barham v. Powell, 
    895 F.2d 19
    , 21
    (1st Cir. 1990). “If . . . the court was within its discretion in denying the
    continuance, the fact that lack of preparation time ‘forced’ [Clemons] to seek
    counsel does not make his waiver involuntary for constitutional purposes.” 
    Id. at 22
    .
    W e have held that “when a denial of a continuance forms a basis of a
    petition for a writ of habeas corpus, not only must there have been an abuse of
    discretion, but it must have been so arbitrary and fundamentally unfair that it
    violates constitutional principles of due process.” Case v. M ondragon, 
    887 F.2d 1388
    , 1396 (10th Cir. 1989) (quotation omitted). “There are no mechanical tests
    for deciding when a denial of a continuance is so arbitrary as to violate due
    process.” 
    Id. at 1397
     (quotation omitted). W e focus on the defendant’s “need for
    a continuance and the prejudice or lack of prejudice resulting from its denial, in
    the context of a fundamental fairness evaluation.” 
    Id.
    Based on the record, we cannot conclude that the state court’s denial of a
    continuance on the day set for trial was fundamentally unfair in this case. Two
    1
    On this point, we note that it is unclear from the record whether Clemons
    actually requested a continuance before relinquishing his right to a jury trial. The
    transcript reflects only that Clemons informed the court that he wished to waive a
    jury trial and admitted that he was doing so because he needed more time to
    prepare. There is nothing to indicate that a formal request for a continuance was
    either requested or denied.
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    weeks earlier, the judge specifically warned Clemons about the perils of
    proceeding pro se – in particular how difficult it would be to prepare for trial
    while incarcerated. He found that Clemons had failed to present adequate
    grounds for the appointment of new counsel and cautioned Clemons against firing
    his court-appointed attorney, who had represented that he anticipated being ready
    on the scheduled trial date. On these facts, we conclude that the judge’s denial of
    a continuance was not so arbitrary and fundamentally unfair as to violate due
    process. There is no constitutional impediment to a defendant bargaining away
    his right to a jury trial in exchange for something of value otherw ise unavailable.
    M cM ahon v. Hodges, 
    382 F.3d 284
    , 291 (2d Cir. 2004). Since Clemons was not
    entitled to the continuance, the judge’s conditioning of the continuance on the
    jury trial waiver was neither contrary to nor an unreasonable application of
    clearly established federal law .
    Second, Clemons argues that the state court violated his Sixth Amendment
    rights by accepting a jury trial waiver that was not knowing, intelligent, and
    voluntary. The Supreme Court has explained that a waiver is “knowing,
    intelligent, and sufficiently aware if the defendant fully understands the nature of
    the right and how it would likely apply in general in the circumstances-even
    though the defendant may not know the specific detailed consequences of
    invoking it.” United States v. Ruiz, 
    536 U.S. 622
    , 629-30 (2002). Even if a
    criminal defendant “lack[s] a full and complete appreciation of all of the
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    consequences flowing from his [Sixth Amendment] waiver, it does not defeat the
    State’s showing that the information provided to him satisfied the constitutional
    minimum.” Patterson v. Illinois, 
    487 U.S. 285
    , 294 (1988) (quotation omitted).
    W hether or not Clemons’s waiver satisfied the constitutional minimum
    depends on the unique facts of his case. Adams v. United States ex rel. M cCann,
    
    317 U.S. 269
    , 278 (1942). W e conclude that it did. Before accepting the w aiver,
    the judge specifically asked Clemons w hether he had discussed his decision to
    waive a jury trial with his court-appointed attorney. Clemons responded that he
    had. Clemons also assured the judge that no one had threatened him or made him
    any promises in order to secure the waiver. M oreover, there is nothing in the
    record to indicate – and Clemons tellingly does not argue – that he failed to
    understand how the right to a jury would “apply in general in the circumstances.”
    Ruiz, 
    536 U.S. at 629
    . That he may not have understood the particulars of a jury
    trial and all of the consequences flowing from his waiver does not defeat the
    state’s showing in this case that the information it provided to Clemons passed
    constitutional muster. See Patterson, 
    487 U.S. at 294
    . W e therefore conclude
    that the state’s acceptance of his waiver was consistent with clearly established
    federal law .
    Sufficiency of the Evidence
    Clemons next challenges the constitutionality of his convictions for
    first-degree murder and attempted first-degree murder arguing that there was
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    insufficient evidence to prove the essential element of premeditation. The
    Supreme Court has held that a 
    28 U.S.C. § 2254
     petition challenging the
    sufficiency of evidence must be granted “if it is found that upon the record
    evidence adduced at the trial no rational trier of fact could have found proof of
    guilt beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 324 (1979).
    In Kansas, premeditation is defined as “the process of simply thinking
    about a proposed killing before engaging in the homicidal conduct.” State v.
    Rice, 
    932 P.2d 981
    , 996 (Kan. 1997). In the instant case, the Kansas Supreme
    Court explained that “the jury has a right to infer premeditation from the
    established circumstances if the inference is a reasonable one.” Clemons, 45 P.3d
    at 390. It went on to hold that the evidence adduced at trial, in particular that
    Clemons waited outside the smoke shop after the victims went inside and shot
    M cPherson in the back, could have led a rational fact-finder to conclude that
    Clemons acted with premeditation. The state court’s decision, of course, is
    entitled to deference. Jackson, 
    443 U.S. at 323
    . Having carefully reviewed the
    record, we agree with the Kansas Supreme Court that the trial evidence could
    have led a rational fact-finder to conclude that Clemons’s murder of M cPherson
    and attempted murder of Huffman was premeditated.
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    Conclusion
    For the foregoing reasons, we conclude that Clemons has failed to make the
    requisite showing under 
    28 U.S.C. § 2254
    . The judgment of the district court is
    A FFIRME D.
    Entered for the Court
    Robert H. Henry
    Circuit Judge
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