Matthew HALE, Petitioner-Appellant, v. Jack FOX, Warden, Respondent-Appellee.
No. 14-1294
United States Court of Appeals, Tenth Circuit.
Filed July 19, 2016
829 F.3d 1162
MATHIESON, Circuit Judge.
Michael C. Johnson, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the briefs), Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.
Before TYMKOVICH, Chief Judge, HOLMES and MATHIESON, Circuit Judges.
MATHIESON, Circuit Judge.
Matthew Hale was convicted of obstruction of justice and soliciting the murder of a federal judge. After filing an unsuccessful motion for collateral relief under
Mr. Hale‘s application is barred under this court‘s interpretation of
I. BACKGROUND
A. Legal Background
1. Statutory Framework
A federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States” may file a motion to “vacate, set aside or correct the sentence.”
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unаvailable.
A
An application for a writ of habeas corpus [(
§ 2241 )] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section [(§ 2255 )], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion [(§ 2255 )] is inadequate or ineffective to test the legality of his detention.
This framework for post-conviction review is the product of legislation enacted in 1789, 1867, 1948, and 1996.
a. Original Writ of Habeas Corpus
“The Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81-82, empowered federal courts to issue writs of habeas corpus to prisoners ‘in custody, under or by colour of the authority of the United States.‘” McCleskey v. Zant, 499 U.S. 467, 477-78 (1991). “In 1867, the writ was made available to any federal prisoner ‘restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.‘” Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997) (quoting Act of February 5, 1867, ch. 28 § 1, 14 Stat. 385). The original habeas statute survives today in
b. Enactment of § 2255 and the Savings Clause
As explained above, a prisoner must bring a
The committee‘s report, submitted to Congress in 1944, recоmmended “creat[ing] a statutory remedy consisting of a motion before the court where the movant has been convicted.” Id. at 216. The proposed motion would “broadly cover[] all situations where the sentence is ‘open to collateral attack.’ As a remedy, it [was] intended to be as broad as habeas corpus.” Id. at 217 (quotation omitted). By requiring prisoners to file in the court of conviction, the proposal was designed to distribute the work of collateral review more evenly among the federal courts. See id. at 213-18. Congress responded in 1948 by enacting
The act that established the
No circuit or district judge of the United States shall entertain an application for writ of habeas corpus in behalf of any prisoner who is authorized to apply for relief by motion pursuant to the provisions of this section, unless it appears that it has not been or will not be practicable to have his right to discharge from custody determined on such motion because of the necessity of his presence at the hearing, or for other reasons.
Wofford v. Scott, 177 F.3d 1236, 1239 (11th Cir. 1999) (quotation omitted) (emphasis from Wofford omitted). The Senate eventually passed this version of the bill, but it died without a vote in the House. Id. at 1241.
Congress then incorрorated a different formulation of the savings clause into a
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
c. The Antiterrorism and Effective Death Penalty Act of 1996
In April 1996, Congress passed and the president signed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“). Houchin v. Zavaras, 107 F.3d 1465, 1468 (10th Cir. 1997). Prisoners had previously been permitted to raise “new legal or factual claims in a second or subsequent habeas petition... if the applicant had not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.” Daniels v. United States, 254 F.3d 1180, 1189 (10th Cir. 2001) (en banc) (quotation and brackets omitted). AEDPA altered this scheme, imposing limits on the types of claims a prisoner could assert in a second or successive
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to contain—(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
In enacting AEDPA, Congress revised
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In sum, the 1948 legislation shifted venue for federal prisoners’ collateral review from the district of confinement to the sentencing court unless the savings clausе
B. Factual and Procedural Background
1. Mr. Hale‘s Convictions
Mr. Hale served as the “Pontifex Maximus” of the white-supremacist World Church of the Creator (“World Church“). United States v. Hale, 448 F.3d 971, 975 (7th Cir. 2006) (per curiam). In 2000, a religious organization known as the Church of the Creator sued the World Church for trademark infringement in the Northern District of Illinois. Id. After the Seventh Circuit reversed the grant of summary judgment to the World Church, the district court “entered a detailed order requiring the World Church to stop using variations of the trademarked name ‘Church of the Creator,’ to turn over books and other materials bearing the name or obliterate any infringing mark from them, and relinquish custody of the domain names of the World Church‘s websites to the [Church of the Creator].” Id. at 978 (first brackets in original).
In 2003, Mr. Hale was indicted on three counts of obstructing justice, in violation of
According to the trial evidence, Mr. Hale asked Mr. Evola to find home addresses for Judge Lefkow and three attorneys representing the Church of the Creator. Id. at 978. Mr. Hale аnd Mr. Evola, who turned out to be a government informant, also had several conversations in December 2002 about the possibility of murdering Judge Lefkow. Id. at 978-79. During these tape-recorded conversations, Mr. Hale repeatedly said he could not be involved in any illegal activity. Id. But the Government argued he said this only to “create ‘plausible deniability,‘” while also speaking in “code” that tacitly encouraged Mr. Evola to carry out the assassination. Id. at 982-83.
After the jury convicted him of soliciting Judge Lefkow‘s murder and of three counts of obstructing justice, Mr. Hale filed a motion for acquittal under
2. Direct Appeal
On direct appeal, Mr. Hale argued there was insufficient evidence to support the solicitation and obstruction convictions regarding the plot to kill Judge Lefkow. Id. He insisted one of his conversations with Mr. Evola “demonstrate[d] conclusively that he opposed Evola‘s plan and that no rational jury could have concluded that his comments suggesting otherwise were meant to be taken seriously.” Id.
3. § 2255 Motion
Mr. Hale timely filed a
4. § 2241 Application
On April 30, 2014, Mr. Hale, who is incarcerated at the federal penitentiary in Florence, Colorado, filed a
Claim One asserted violations of Mr. Hale‘s Fifth Amendment due process right and Eighth Amendment right to be free of cruel and unusual punishment on the ground that he was “being imprisoned for conduct that the law does not make criminal.” ROA at 9. Specifically, Mr. Hale argued the conduct proved at trial—merely “[allowing] a government informant to commit murder, or telling that informant that he can do what he wants, or refraining from stopping the informant from committing the informant‘s own fictitiously-desired crime, or refraining from telling him not to commit the crime“—fell outside the scope of the solicitation and obstruction statutes. ROA at 9 (emphasis in original). In his briefing to this court, Mr. Hale refers to this portion of his application as a “claim of innocence,” Aplt. Br. at 10, explaining he is “innocent of the crimes of conviction, both as a matter of law and fact,” id. at 10.4
I was worried about my safety and my partner‘s safety because it was—I‘m a white person with an African-American man and we had knоwn that [a former member of the World Church] went on a shooting rampage after being part of Matthew Hale‘s group, and so that was his way of showing obedience or faith to Matthew Hale, and I felt really vulnerable.
Mr. Hale also alleged in Claim Seven that when the trial judge polled jurors mid-trial to ask whether they had been exposed to any media coverage about the case, the foreman failed to raise his hand. The
The district court dismissed Mr. Hale‘s
Mr. Hale filed a Rule 59(e) motion to alter the judgment, which the district court denied.
II. DISCUSSION
Mr. Hale appeals the dismissal of Claims One and Seven. Because neither claim satisfies the
A. Standard of Review
“When reviewing the denial of a habeas petition under
B. Claim One
Claim One alleged the trial court erred when it permitted the jury to convict him based on the evidence introduced at trial. To the extent Mr. Hale contends that
Mr. Hale made a Rule 29(c) sufficiency-of-the-evidence motion after the jury returned its verdict. That motion called for a legal determination of whether the facts proved at trial satisfied the elements of the relevant statutes. See United States v. Hausmann, 345 F.3d 952, 955 (7th Cir. 2003) (explaining that defendant‘s Rule 29 motion for judgment of acquittal “allege[d] that the government failed to... prove... [certain] elements of the mail and wire fraud offenses underlying the conspiracy charge“); United States v. White, 582 F.3d 787, 803 (7th Cir. 2009). The district court denied the motion. On direct appeal, Mr. Hale made the same sufficiency argument to the Seventh Circuit, which also rejected it.
Because the Seventh Circuit considered and resolved that claim, Mr. Hale could not bring it again in his
2. No Actual Innocence Gateway
Mr. Hale‘s attempt to bypass
3. Application of § 2255(e) Is Constitutional
Mr. Hale insists that barring his claim under
As explained above, he contested in district court and on appeal whether the trial evidence was sufficient to establish guilt under the solicitation and obstruction statutes. He proffers no new evidence. We see no basis to conclude that the district court‘s application of
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Accordingly, because Mr. Hale cannot overcome the procedural bar to
C. Claim Seven
Mr. Hale contends
Prost‘s interpretation of
1. Mr. Hale‘s Claim Fails Under Prost
a. Prost‘s § 2255(e) Gatekeeping Rule
In 1999, Keith Prost pled guilty in the Eastern District of Missouri to two counts of money-laundering. Prost, 636 F.3d at 580. His
In rejecting Mr. Prost‘s attempt to challenge his conviction under
Even though the Supreme Court‘s decision in Santos came after Mr. Prost‘s
Mr. Prost‘s “‘erroneous circuit foreclosure’ test“—i.e., the notion that he should be permitted to invoke
Prost mentioned only two examples in which
Finally, although Prost denied
b. Prost Bars Mr. Hale‘s Juror Misconduct Claim
In Prost, this court did not face or anticipate the circumstances presented in Mr. Hale‘s case. Like Mr. Prost, Mr. Hale seeks collateral review after the denial of an initial
Nonetheless, Prost forecloses Mr. Hale‘s
2. Mr. Hale Has Not Shown That Prohibiting Access to § 2241 Would Raise Serious Constitutional Concerns
Mr. Hale, seizing upon the constitutional avoidance language in Prost, argues that applying
The canon applies only if a statute is subject to more than one plausible interpretation, and one of them presents “serious concerns about the statute‘s constitutionality.” Gonzales v. United States, 553 U.S. 242, 251, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (quotation omitted). Whether or not
a. The Due Process Clause
Mr. Hale first contends that denying review of his juror misconduct claim might raise Due Process Clause concerns. He states, “[t]he core of due process is the right to notice аnd a meaningful opportunity to be heard,” and if he “is barred from accessing
Procedures for post-conviction review may not “transgress[] any recognized principle of fundamental fairness in operation.” Dist. Attorney‘s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 69, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Thus, when Congress affords prisoners a certain post-conviction remedy, due process requires they also have access to procedures that are “fundamentally []adequate to vindicate the substantive rights provided.” Id. To make out a procedural due process violation in this context, a prisoner must show (1) a substantive “parent right” that derives from a source such as Congress‘s statutory post-conviction scheme, and (2) lack of procedures adequate to assert and protect that right. Id. at 68.
Mr. Hale falters at step one. He claims his right to an impartial jury may have been violated and that “due process specifically mandates a hearing on credible claims of juror partiality.” Aplt. Suppl. Br. at 18 (citing Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). But the cases he cites do not establish a due process liberty interest in challenging his conviction on these grounds after already unsuccessfully bringing one round of collateral review. See Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (explaining that under the Due Process Clause, “[s]tates have no obligation to provide [collateral attack]“). Mr. Hale therefore has not shown that applying Prost to his case would raise serious constitutional concerns.9
Mr. Hale also relies on the Suspension Clause, which provides that the “Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
In Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Court said
Mr. Hale‘s only other citation, to I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), in which he says “the Supreme Court... held that precluding all judicial review of an important question of law would raise serious questions under the Suspension Clause,” Aplt. Suppl. Br. at 20, is equally unavailing. Even if this characterization of St. Cyr‘s hоlding is correct, that case, as Mr. Hale acknowledges, involved the extent to which habeas must be available in cases “involving executive detention without trial.” Abernathy, 713 F.3d at 555 (discussing St. Cyr). And we have said that “how far (if at all) [St. Cyr‘s] statements about habeas[] extend[] into the AEDPA context—as opposed to the executive detention context—... is far from clear.” Id.
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Under Abernathy, Mr. Hale must establish that barring his
III. CONCLUSION
Mr. Hale is not entitled to savings clause review of his sufficiency-of-the-evidence claim because he already had received judicial review of this issue. And under Prost, Mr. Hale had an adequate and effective chance to test his juror misconduct claim in his
Each party shall bear their own costs on this appeal.
Notes
But read as a whole, especially in light of the concern about rendering