632 F. App'x 470
10th Cir.2015Background
- Donald Daves was convicted in Wyoming of multiple crimes including first-degree sexual assault, using a firearm during a felony, aggravated assault/battery, possession of a deadly weapon, and kidnapping; state direct appeal and post-conviction relief failed.
- Daves filed a federal habeas petition under 28 U.S.C. § 2254; the district court granted summary judgment for respondent, dismissed the petition, and denied a Certificate of Appealability (COA).
- Daves, pro se, sought a COA from the Tenth Circuit challenging multiple trial and appellate issues (jury instructions, presence at a supplemental-instruction conference, re-arraignment, double jeopardy, and ineffective assistance of counsel claims).
- The Tenth Circuit applied Slack v. McDaniel and AEDPA deference to determine whether reasonable jurists would find the district court’s assessments debatable or wrong.
- The court reviewed discrete claims: definition of “use” in a supplemental firearm instruction; procedures for giving supplemental instructions and defendant’s absence; failure to re-arraign after amended charges; use of the word “force” in sexual-assault instructions; double-jeopardy theories; and several ineffective-assistance theories (competency and failure-to-present claims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of “use” (firearm enhancement) | Instruction allowed conviction based on mere possession/constructive possession without active employment | Instruction required use that actually facilitated the crime; evidence showed active use to force victim | No COA — district court reasonably found no due-process prejudice from instruction |
| Supplemental-instruction procedures (defendant absent; written instruction) | Due process violated by Daves’ absence at conference and by providing written instruction outside his presence | Absence was permissible where only legal matters discussed; written response to jury acceptable | No COA — presence/format did not deny due process |
| Failure to re-arraign after amended charges | Failure to re-arraign deprived court of personal jurisdiction | Wyoming law vests jurisdiction by physical presence before court regardless of arraignment formality (Rios) | No COA — no debatable error in jurisdiction conclusion |
| Use of the word “force” in sexual-assault instructions | Instructions impermissibly hybridized elements of physical-force and threat-based statutes, violating due process/Ex Post Facto | Both subsections require causing submission; reference to force fit statutory elements | No COA — instruction not fundamentally unfair |
| Double jeopardy (merger/ sentencing enhancement) | Convictions for sexual assault and firearm use should merge because threats depended on firearm; earlier argued enhancement improperly relied on same conduct | Different versions of argument raised; some arguments not preserved/exhausted | No COA — argument either not presented below or inadequately preserved; not addressed on merits |
| IAC — appellate counsel failed to raise trial counsel’s failure to argue incompetency | Daves lacked capacity; appellate counsel ineffective for not raising trial counsel’s failure | Record showed depression/substance abuse but no inability to understand proceedings or assist counsel under state statute | No COA — state and district courts reasonably rejected incompetency claim |
| IAC — failure to present complete defense (Batson, oral-sex element, Miranda) | Trial counsel ineffective; appellate counsel ineffective for not raising these issues | District court: claims unexhausted in state post-conviction and thus procedurally defaulted | No COA — petitioner failed to show district court’s procedural ruling debatable |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (CO 2000) (standard for issuing a COA when claims rejected on the merits or procedurally)
- Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997) (habeas claim on jury instructions requires showing of fundamental unfairness)
- Tiger v. Workman, 445 F.3d 1265 (10th Cir. 2006) (instructional-error standard for due process in habeas context)
- Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004) (AEDPA deference applies to COA consideration)
- Esnault v. People of State of Colo., 980 F.2d 1335 (10th Cir. 1992) (defendant’s absence during legal instruction conferences does not necessarily violate due process)
- Snyder v. Commonwealth of Massachusetts, 291 U.S. 97 (U.S. 1934) (defendant’s presence required only to extent absence thwarts fair hearing)
- Malloy v. Hogan, 378 U.S. 1 (U.S. 1964) (noting partial overruling of prior presence-related holdings)
- Coleman v. Thompson, 501 U.S. 722 (U.S. 1991) (procedural default doctrine for habeas petitioners)
- Viera v. United States, 674 F.3d 1214 (10th Cir. 2012) (COA issues not preserved below will not be considered)
- Rios v. State, 733 P.2d 242 (Wyo. 1987) (physical presence before the court confers personal jurisdiction)