*1 1X13 products Even if are available the relative costs of the op- various service arrangement separately, illegal tying an can tions be cannot established. Because Laser- together purchasing if is exist items tech has failed show that the tie-in includ- Amerinet, “only option.” viable economic warranty ed in the extended is the F.2d at has 972 1500. Lasertech failed to economically option, viable illegal there is no purchasing introduce evidence that service tying arrangement under the Sherman Act.7 through Xerox the service maintenance Id. of this Because determination it is agreement or on time and materials basis necessary discuss argu- Lasertech’s other not viable. The record no infor is contains ments Xerox’s and other defenses. regarding frequency required mation Since Lasertech has re- conceded that the repairs data, copiers. on Xerox Without maining law claim should be dismissed impossible it is to know the other whether if it is unsuccessful under the and Sherman cartridge options materially are service Acts, Clayton summary judgment prop- was by expensive, more if how much. so erly granted on the tortious interference Because we cannot the other conclude that claim. options prohibitively expensive, were service Accordingly, judgment 1500-01, is affirmed. any tying arrangement id. illegal summary judgment ap warranty.6 propriate as to the initial regarding issues extended war straightforward
ranties are more because they simply type are contract. service warranty the initial expires, After Xerox RHODE, Appellant, Denise Cleone copier may op owner several choose from year A tions. series of one extensions of the OLK-LONG, Warden, Barbara Iowa Cor warranty may purchased be from Xerox for a Women, rectional Institution for Mit fee, in cartridges flat which case Xerox must chelville, Iowa, Appellee. State of supra used. be See note. Xerox service may purchased be a time and on materials No. 95-1898. through or basis the standard maintenance Appeals, United States Court of independent opera agreement, or an service Eighth Circuit. may Any cartridge be used. tor brand may arrangements. be used under the latter Nov. Submitted 1995. Again to show Lasertech has failed March Decided 1996. options other service Xerox offered Amerinet, prohibitively expensive. are 972
F.2d
1500-01. Without
of the
evidence
frequency
severity
repairs,
required
Regardless
tying
eighteen
product
percent
of how the
market is
less than
of the convenience
defined,
market,
prevail
copier
Lasertech also cannot
under the
which is insufficient
under
Clayton
See.,
tying product
Parish,
Act. If the
market is ser
e.g.,
466
circumstances.
Jefferson
26-27,
copiers,
Clayton
vice on new Xerox
Act is
(thirty per
U.S. at
1H5 *3 ARNOLD, Circuit MORRIS SHEPPARD Judge. the order
Denise denying petition for writ court1 district corpus. We affirm. of habeas
I. January telephoned
On a nurse that the Blank Clinic informed Matthew, nephew, had hit her four-month-old *4 tipped against a his head when his walker egg” “goose he a said that had on wall. She head, eyes were rolled back in his his his head, legs arms were stiff. and that his and told Rhode that Matthew needed The nurse Rhode then immediate medical attention. father, telephoned Matthew’s and two hospital. died the took him to the Matthew day. following charged Rhode was murder endangerment. She waived her and child trial, jury right and the case was tried judge Although in Iowa state court. before a trial, testify Rhode did an given Matthew’s death earlier about juvenile proceeding was read into evidence. that, juvenile hearing, testified on In the she injured, left day she him Matthew parents, Marilyn Charles with her Marsh, 11:00 and 1:00 or 1:30 between a.m. said, time, During Matthew p.m. apparent off the no fell bed but sustained injuries. further stated that after she She Matthew, put him in the returned she fed room, kitchen, in the left the walker crying. him while later heard She short returned, that when she she found testified against the walker tilted and Matthew’s head her, children, According wall. two three, playing nearby. ages were five Kinnamon, IA, Rapids, ar- M. Cedar Jon gued, appellant. for trial, who Mat- At several doctors treated pathologist performed thew and the who his Gen., McGrane, Atty. Des Asst. Thomas autopsy for state. The doctors testified IA, Fisher, Jr., Moines, argued. Thomas G. injuries agreed that Matthew’s could not all Gen., brief, Atty. appellee. on for Asst. tipping have from walker over resulted injuries falling a bed. The could or off HEANEY, BEAM, from direct and inten- and MORRIS have resulted Before baby’s ARNOLD, Judges. force to the tional blow with extreme Circuit SHEPPARD Wolle, Judge, Iowa. District of Charles R. Chief The Honorable District Court for Southern United States
H17 experts The medical head. were unable to State v. convictions. (Iowa occurred, exactly injury
pinpoint
App.1993).
when the
they opined
injured
but
Matthew
petition
In her
for a writ of
corpus
habeas
p.m.
10:30 a.m.
between
and 3:30
pursuant
to 28 U.S.C.
set
Rhode
forth
grounds
six
for relief. The district
parents, Marilyn
Rhode’s
and Charles
petition
court
grounds
denied
on all
Marsh,
subpoenaed
appear
were
as wit-
these
appeal.
renews
claims on
chambers,
nesses
the state.
Marshes asserted their
Amendment
Fifth
II.
privilege against self-incrimination and did
testify. At the
conclusion of the
first
that her conviction
testify
found that
their refusal
was a
is invalid
because
state trial court lacked
“ruse,
ploy
generate
doubt
jurisdiction over her case.
It
long
has
been
silence where no reasonable doubt otherwise
established that federal
corpus
habeas
relief
exists.”
is available when conviction is void for want
jurisdiction
in the trial court. See
Keizo
case,
At the close of the state’s
Henry,
attorneys asked to withdraw as defense coun-
*5
(1908);
Siebold,
alleges that there insufficient only apply finding competent. that should when tends Medina competency hearing trial held are legally incompe of a The conviction apply- contemporaneously. She process. person tent violates due Pate ing presumption competence post- in a Robinson, competency hearing conviction violates due post- While process unfairly to the diffi- because it adds are competency conviction determinations hearings. argu- inherent in This culties such disfavored, Pate, generally at Medina, ment is without merit. the Su- post- held we have that a preme indicated that federal courts competency proper so conviction allocating laws should disturb state hearing” meaningful pos “a long as remains hearings. proof in burden Wyrick, 552 F.2d sible. Harkins v. upon The Medina was based decision (8th Cir.1977). agree We with the dis principle legisla- long-standing that state court of trict court and with Iowa tures, courts, not federal should establish meaningful and consti that Rhode received procedure. Id. 445- state rules of criminal post-conviction competency hearing. tutional 46,112 we S.Ct. at 2577-78. Because believe hearing, At there principle applies equal that this force experts who had examined several medical post-conviction competency hearings, de-we during long trial Rhode either or not adopt reading cline Rhode’s narrow of conviction. These witnesses Medina. expert opinions on Rhode’s com fered
petence to
think
stand trial
and we
contemporary
“the
nature
doc
of these
IV.
*6
appellant
tors’ examinations of
was sufficient
in
adequate
possible”
to make an
argues
that she was denied
Harkins,
1311-12. We
process
due
because there was insufficient
pre
the
are also of the view that
evidence
presented
prove
evidence
at trial to
that she
was,
contrary
the
sented at the
killed Matthew
because there was insuf
and
contention,
petitioner’s
support
sufficient to
malice
ficient evidence that she acted with
competent
conclusion that she was
when she
being
aforethought, this
an element of
latter
instance,
the
For
there
committed
offense.
murder,
offenses,
felony
all murder
even
un
testimony
great
that
deal of
(1993).
§
der
707.1
Iowa Code
suffering
from the mental illness that she
incompetent to
claimed rendered her
stand
claims,
reviewing
we
In
these
competent
trial and
that she was
“whether,
viewing
the
must determine
read
to stand trial. We have
the record
the
light
evidence in the
most favorable to
it
post-trial
with care
find
any
fact
prosecution,
rational trier of
could
adequate
support
finding
than
the
more
the
have
the
elements of
found
essential
the trial court.
beyond a
crime
reasonable doubt.” Jackson
Virginia,
443 U.S.
Rhode also
that the state
(1979).
If the
1H9 supports whelmingly the conclusion that er inferences from the Marshes’ assertion of against Rhode killed Matthew. privilege self-incrimination. In- deed, as both the district the Iowa supports amply The record also observed, court of it seems more finding that Rhode acted with malice afore probable that trial court’s statement was thought. experts medical testified that actually a any refusal to draw inferences at injuries as head severe as Matthew’s could all from testify. the Marshes’ decision not to intentionally striking result from issue, however, We need not resolve the be- baby’s great against head with force a hard cause we that even if find the trial court injuries flat surface. To sustain such severe erroneously considered the Marshes’ asser- accidentally, opined one doctor that Matthew tion of their in rights reaching constitutional twenty would have had to fall over feet. conclusions, its we see proba- no reasonable Furthermore, Iowa, in may malice be in bility that the error affected ultimate prior ferred from dealings the defendant’s Anderson, outcome of F.3d at Johnson, with the victim. State v. indicated, already 679. As great we have (Iowa 1982), denied, N.W.2d cert. weight of the evidence that indicated L.Ed.2d 95 maliciously injury inflicted the that led to At Rhode’s husband testified Matthew’s death. spank that he had seen shake and Mat thew, several doctors testified he Baby Syndrome,” signs
showed of “Shaken VI. mother Matthew’s testified she had previously found bruises on her son after he Rhode next contends that her convictions spent together, time with Rhode. Taken violate process jeopardy. due and double prior evidence of Rhode’s mistreatment of process precluded She claims that due injuries severity pro Matthew his using court from child endangerment as a enough vided more than evidence for the (In basis for her murder conviction. court to find Rhode acted with malice Iowa, person if commits murder she “kills aforethought. person another while participating a forc- 707.2(2).) felony.”
ible Iowa Code Alter- *7 natively, argues principle that the of V. precludes jeopardy convicting double her for argues that Rhode next the trial endangerment degree both child and first process by concluding court due violated that disagree. murder. We the of Fifth Marshes’ assertion Amend privilege against ment self-incrimination was argument the Iowa Rhode’s a reject argument. ruse. We this While it is precluded using partic court from was per well that a established trial court is not ipation endangerment in child to convict her a mitted to draw inferences from witness’s of degree first murder lacks a constitutional privilege, his Fifth assertion of Amendment Nix, 130, v. basis. See Heaton 924 F.2d 134 States, 189, 196, Johnson v. 318 U.S. United (8th denied, Cir.), 956, 111 cert. 500 U.S. 553, (1943), 549, 63 87 a S.Ct. L.Ed. 704 due 2266, Rhode is process violation can serve the basis for as doctrine, essentially arguing merger for the corpus federal relief if the al habeas using integral which that are an bars felonies leged error infected trial as to so Rhode’s part felony of a a mur homicide “fundamentally proceeding render the un Supreme der The of Iowa conviction. Goeke, fair.” v. F.3d Anderson 44 679 rejected merger for forcible has doctrine (8th Nix, Cir.1995), (quoting v. 809 Hamilton endangerment. child State felonies such as (8th denied, Cir.), F.2d cert. 483 470 U.S. (Iowa Beeman, 770, 776-77 v. 315 N.W.2d (1987)). 107 S.Ct. 97 L.Ed.2d 1982). not, it had violations of state Even if convinced, as a federal habe law cannot serve basis for
We are
the first
relief,
single
a
place,
improp-
trial
drew
as
and Rhode fails to cite
that the state
court
(nor
VIII.
any)
of
which
are we aware
federal case
process argument.
supports her due
reasons,
foregoing
we affirm
For the
peti-
denying Rhode’s
court’s order
district
jeopardy argu
Rhode’s double
corpus.
for a writ of habeas
tion
Supreme
meritless.
are also
ments
HEANEY,
Judge, dissenting:
Circuit
may
legislature
state
Court has held
punishment
determined,
for the
authorize cumulative
Appeals
of
As the Iowa Court
Hunter,
v.
Missouri
Rhode was
in the Iowa
same offense.
when Denise
tried
court,
grounds
reasonable
existed
74 L.Ed.2d
103 S.Ct.
examine her
to stand
Un-
murder,
felony
In the context of
(1994),
court was
Iowa
812.3
der
Code
can be convicted
a “criminal defendant
suspend
immedi-
required
proceedings
underlying felony and
punished for
both
ately
competency hearing.
and to hold
violating
felony
the double
murder without
Instead, Rhode
ignored
this mandate.
if he
jeopardy
of the fifth amendment
clause
hearing
years
given the
two
one-half
was
in one tidal
prosecuted for both offenses
is
my judgment,
it was
after
conviction.
legislature has authorized
and if the state
meaning-
possible for Rhode to receive
Heaton,
punishment.”
924 F.2d
cumulative
Thus,
at
I
ful
time.
dissent.
held that
at 134. The Iowa court
post-conviction competency
A
is
legislature has authorized cumula
the Iowa
remedy
wrongful
proper
for a
denial of
felony
punishment for
murder.
tive
State
hearing only
“meaningful
pretrial
if a
hear-
(“The
leg
Iowa
N.W.2d at 40-41
Wyrick,
ing”
possible.
Harkins v.
felony
is clear:
murder and
islature’s intent
Cir.1977);
F.2d
Griffin
punished”);
felony can
underlying
both be
(8th Cir.1991)
Lockhart,
Ragland,
see also State
corpus
it
(granting habeas
because
“seemed
(Iowa 1988).
are
Because we
bound
meaningful nunc
impossible to now conduct a
interpretation of the Iowa
the state court’s
pro
years
hearing”
tunc
over three
Hunter,
statutes,
trial).
defendant’s
child
convictions
both
case,
not held until
In this
endangerment and
murder did not
and one-half
after Rhode’s convic-
two
jeopardy.
violate double
The court had to determine both
tion.
competent at the
whether Rhode was
time
VII.
competency hearing and at
time
expert testimony
trial. The
available
that,
Finally
be
inadequate meaningfully ad-
the state
act,
a single
cause her conviction stems
Three
either of these
dress
issues.
*8
prison
in
sentencing
to life
violates
her
only
expert
had
four
witnesses for
state
Eighth
prohibition against cru
Amendment’s
Rhode,
oc-
limited contact with
all of which
punishment. We
el
unusual
have held
during
postconviction
curred
her
incarcera-
legislatures
are entitled to “wide latitude
clearly
A review of their
tion.
punishments.”
Sim
prescribing
in
expert
wit-
demonstrates
none of these
State,
mons v.
Cir.
prior to her convic-
nesses had examined her
-
1994),
U.S.-,
they
cert. denied
S.Ct.
never examined her
deter-
tion
(1995).
Only
competency
sen mine her
stand trial.
express an trial; merely hearing tent both at the time of the stated that cy at the time of trial, opinions when she stood based what was his sole Rhode understood she believed ly personal on written records and a Hrg. Tr. consul while incarcerated. at “going on” just prior tation with her to the 338. hearing. precisely type expert It is this of Welsh, psychologist a staff with Leonard alone, testimony, printed based on records Corrections, per- Department
the Iowa Supreme that the Court intended to discour psychological evaluation of Rhode formed a Robinson, age in Pate v. 386- post-conviction incarcera- at the outset of her prison part tion as of her entrance evalua- not examine her to determine tion. He did Supreme Court of Iowa has consis- competency, and he was not even her trial tently reversal of a defendant’s considered history Hrg. mental illness. aware of her remedy appropriate conviction to be the about Tr. at 304-05. When asked violation of section 812.3. See State v. trial, competency to stand Welsh Rhode’s (Iowa 1979) Kempf, 282 N.W.2d ability about his expressed serious doubt conviction); (reversing Hickey defendant’s you are not there at opinion: an “Since form County, Kossuth District Court of inferences; time, you all can do is make (Iowa 1970); also, 406, 412 N.W.2d see State go anything than that is to to do other (Iowa 1990) Myers, 460 N.W.2d say.” Hrg. Tr. at beyond you can 302. what (“If the court of was correct in con- express opinion his as to explicitly He did not cluding that to the trial court matters known time the 1992 competency at the Rhode’s 812.3, under section then mandated rather, primarily hearing; on written based we believe the failure to hold such a records, opinion, in he his stated by probably capable being cured any significant form of mental did not suffer post competen- an facto determination of ex Hrg. Tr. illness. at 302. cy.”). decision the Iowa in- instant appellate court is inconsistent termediate Brainard, psychologist Peter precedents Iowa with these clear of the Su- prison, had twelve to fifteen Mitchellville not, my opinion, preme and does during psychotherapy sessions with Rhode comport with Iowa Law. See State performed a mental her incarceration and (Iowa App.1993). evaluation of her two status Hrg. Tr. at 323-24. When asked conviction. opinions of the state witnesses Because the currently suffering from Rhode was whether limited, purely ad- primarily were on based illness, that six mental Brainard answered ministrative, post-conviction contact not, prior to the she was but months Rhode, the trial court was not able to con- judgment” for a as to that he had “no basis meaningful competency hearing in this duct a Hrg. Tr. at present mental condition. I that we must vacate case. believe explicitly testified that Brainard never remedy the court’s error conviction to competent at the time of her Rhode was course, state, may retry if trial. The had ever only that he did not believe she but appropri- appropriate time and in the at the *9 during illness the two suffered from a mental compe- proceeding it determined she is ate prison. with her at the he had contact tent to stand testimony highlights, only the Brainard’s opinion to Rhode’s com- inadequacy of his as
petency time of but also the at the making post-trial difficulty in these extreme generally. determinations expert held October refer to 2. All citations post-conviction transcript of the