Wood v. Milyard, 2013 U.S. App. LEXIS 13849

Background

In 1986 Wood robbed a pizza store and killed the assistant manager; he was convicted after a bench trial of first-degree felony murder, second-degree murder, and other counts.
Wood’s state direct appeal and state habeas efforts failed; he later filed a federal habeas petition that this court initially dismissed as untimely, but the U.S. Supreme Court reversed on waiver grounds in Wood v. Milyard.
On remand, Colorado argued Wood procedurally defaulted his double jeopardy and Sixth Amendment jury-waiver claims by not raising them on direct appeal under Colo. R. Crim. P. 35(c)(3)(VII).
The Tenth Circuit held Rule 35’s procedural bar was added in 2004 and therefore could not bar federal review of claims that had to be raised decades earlier; retroactive application would be inadequate under federal habeas procedural-default doctrine and due process.
On the merits, the court concluded Colorado’s law and the Colorado Supreme Court’s rulings permit only one murder conviction per killing; Wood’s simultaneous convictions for first- and second-degree murder violate double jeopardy and one conviction must be vacated.
The court conditionally granted habeas relief: it instructed the district court to vacate Wood’s first-degree felony-murder conviction (the conviction Wood challenged) unless state courts vacate one of the murder convictions within a reasonable time; Wood’s request for an evidentiary hearing on his Sixth Amendment jury-waiver claim was denied for failure to diligently develop the factual basis in state court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Colo. R. Crim. P. 35 procedural bar precludes federal habeas review (procedural default/adequacy)	Wood: Rule 35 was adopted after his direct appeal; it was not firmly established or regularly followed when he defaulted, so it cannot bar federal review.	State: Rule 35 requires these claims on direct appeal; Colorado courts have applied it retroactively, so federal review is barred.	The court held Rule 35 could not bar Wood: it was adopted later and retroactive application would be inadequate and raise due process concerns, so procedural default did not preclude review.
Whether simultaneous convictions for first- and second-degree murder for one killing violate Double Jeopardy (multiple punishments)	Wood: Colorado law allows only one murder conviction per victim; having both convictions violates double jeopardy and one must be vacated.	State: No double jeopardy problem because Blockburger elements test shows distinct elements; also no additional sentence was imposed so no cumulative punishment.	The court held Colorado Supreme Court precedent establishes only one murder conviction per killing; convictions violated double jeopardy and one conviction must be vacated regardless of sentencing.
Which murder conviction to vacate	Wood: He challenged only the first-degree conviction in federal habeas and seeks relief as to that conviction.	State: Argued no meaningful double jeopardy harm or that the judgment effectively reflected a single conviction merged for sentencing.	Court ordered conditional relief: vacate the first-degree conviction (the one challenged) unless state courts within a reasonable time vacate either murder conviction.
Whether Wood is entitled to an evidentiary hearing on his claim that his jury-waiver was not knowing/voluntary due to counsel’s bad advice	Wood: Counsel failed to explain implications; asks evidentiary hearing to develop facts.	State: Wood failed to develop the factual basis in state court, so §2254(e)(2) bars an evidentiary hearing.	The court denied an evidentiary hearing: Wood failed to diligently develop the factual basis in state court and did not rely on new law or an undiscoverable factual predicate.

Key Cases Cited

Wood v. Milyard, 132 S. Ct. 1826 (U.S. 2012) (Supreme Court reversed Tenth Circuit on sua sponte statute-of-limitations issue; State waived limitations defense)
Coleman v. Thompson, 501 U.S. 722 (U.S. 1991) (federal habeas doctrine on procedural default, independence and adequacy of state rules)
Walker v. Martin, 562 U.S. 307 (U.S. 2011) (adequacy and independence of state procedural rules for federal habeas)
Dretke v. Haley, 541 U.S. 386 (U.S. 2004) (prudential reasons to respect state procedural defaults)
Ford v. Georgia, 498 U.S. 411 (U.S. 1991) (procedural bar must be firmly established and regularly followed)
Beard v. Kindler, 558 U.S. 53 (U.S. 2009) (state courts may not bar review by invoking new procedural rules without adequate notice)
Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986) (retroactive application of procedural rule may fail due process and be inadequate)
Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same-elements test for multiple punishments)
Missouri v. Hunter, 459 U.S. 359 (U.S. 1983) (double jeopardy protects against multiple punishments)
Ball v. United States, 470 U.S. 856 (U.S. 1985) (a conviction alone can constitute punishment because of collateral consequences)
Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (habeas corpus is an equitable remedy)
Williams v. Taylor, 529 U.S. 420 (U.S. 2000) (§2254(e)(2) diligence requirement for developing state-court factual record)
Schriro v. Landrigan, 550 U.S. 465 (U.S. 2007) (failure to develop claim in state court shows lack of diligence barring federal evidentiary hearing)
Cummings v. Evans, 161 F.3d 610 (10th Cir. 1998) (federal courts bound by state supreme court’s determination of legislative intent)