Juan Trevino v. John J. Dahm, Warden

оn the downward based substantial assis- provided government.

tance to the TREVINO, Appellant, Juan arguments Jones’s constitutional DAHM, Warden, Appellee. John J. First, are meritless. the limits the Guide place lines on the discretion of the district No. 92-1863. courts to take into account various factors at United Appeals, States Court of sentencing do not violate the Due Process Eighth Circuit. Jones, Clause. United States 965 F.2d — (8th 1507, Cir.), denied, cert. U.S. 17, Submitted Feb. 1993. —

-, 346, 261, L.Ed.2d 13, Aug. Decided -, U.S. 113 S.Ct. 121 L.Ed.2d 358 Brittman, United States v. 872 F.2d Cir.), denied, cert. Sec ond, Brown, in United States v. 921 F.2d (8th Cir.1990), rejected we a due

challenge to the Guidelines classification of

drug quantity offenses based on rather than

purity, stating arbitrary is neither “[i]t nor according

irrational to sentence to the total

quantity involved, of the PCP ‍‌​‌​​‌‌​‌​​‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​​‌​‍mixture with regard purity.”

out reject

We also Jones’s contention

that his is sentence excessive because he

played conspiracy. a minor role in the

151-month conspiracy sentence for the is range

low end of the Guidelines and the

consecutive 60-month sentence the fire

arm conviction is mandated statute. Fi

nally, claim Jones’s the district court by denying

erred his motion for a downward

departure ground on the that he substantial

ly government assisted the is meritless. The authority depart court had no be range

low the Guidelines the basis of provided govern

assistance Jones absent a 5K1.1, § p.s.,

ment motion under U.S.S.G. showing of unconstitutional motivation. Kelley,

United States v. 956 F.2d 751-52

(8th Cir.1992) (banc).

Accordingly, judgment we affirm the

district court. magistrate judge

dence. The determined that claims two and procedurally four were barred and that the other three claims were meritless. The court adopted Beal, NE, argued, Gregory Ogallala, J. for magistrate judge’s and de- recommendations appellant. nied petition. Trеvino’s ap- habeas Trevino peals. Gen., Kimberly Klein, Atty. A. Asst. Lin-

coln, NE, argued, appellee. for II. DISCUSSION FAGG, HEANEY, Judge, Before Circuit appeal, argues On Trevino first that his BEAM, Judge, and Circuit Senior Circuit procedurally claims are not barred. He also Judge. reasserts the of all five merits of his habeas claims.

BEAM, Judge. Circuit A. Procedural Bar appeals Juan Trevino from the district The district court petition. court’s ‍‌​‌​​‌‌​‌​​‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​​‌​‍denial of his habeas determined that We Trevino for raised the first time on affirm. habeas a process

due challenge to district court’s excluding proffered decision expert his testi I. BACKGROUND mony reliability on the of witness identifica jury After a Trevino was convicted of tions. reviewing After the record of the murder, second-degree murder, attempted proceedings, state court the district court assault, degree first and three counts of use previously concluded that Trevino had con felony. of a to a firearm commit He was tested solely the exclusion of this evidence on imprisonment to life sentenced for sec- grounds. law state The district court further conviction; ond-degree murder fifteen to objections found that Trevino’s constitutional thirty years for the murder con- admissibility to the cartridges of certain viction; years three to six for the first-de- possession during jailhouse found his gree conviction; years impris- assault and six strip presented search had not been onment firearms convictions. With Supreme any Nebraska Court A form. exception first-degree of the sentence for petitioner fairly fedеral habeas must present assault, all are to Trevino’s sentences corpus substance federal habeas consecutively. served On appeal, direct courts, claim thereby provide to the state Supreme Nebraska Court affirmed Trevino’s opportunity the state “fair courts with a to Trevino, 494, convictions. State v. 230 Neb. apply controlling legal principles to the facts (1988). 432 N.W.2d 503 Trevino filed habe- bearing upon his constitutional claim.” petition in federal court for the Harless, 4, 6, 103 Andеrson v. 459 U.S. S.Ct. pursuant District of Nebraska to 28 U.S.C. (1982). 276, 277, Accordingly, 74 L.Ed.2d 3 § petition, prin- 2254. In that five raised the district court found cipal alleged claims. He that he was de- procedurally defaulted these claims. After prived right of his to due when the transcript careful examination of the trial (1) permitted prosecution’s district court: appeal, and of the record on we find error no expert testify forensic to about an inconclu- in the district court’s that these conclusion performed sive test on a blood stain found on pro are claims were defaulted and therefore (2) petitioner’s clothing; admitted evidence cedurally barred. cartridges allegedly several found Tre- (3) possession; petitioner vino’s admitted identification has to When failed by prejudi- which claim present had been tainted the substance of a to the state (4) pretrial procedures; courts, cial procedurally refused are the federal courts permit expert testify considering witness from merits — barred subject U.S. -, pеrception Thompson, human memo- claim. Coleman -, ry. alleged Trevino’s fifth that his claim S.Ct. procedural In

convictions based insufficient evi- order overcome specimen entire consumed the that Khreiss must demonstrate petitioner a habeas thereby depriving him of id.; testing, during her Wain prejudice,” “cause either independent conduct an opportunity to Sykes, wright v. (1977), analysis. or a “fundamental Whitley, Sawyer v. justice.” miscarriage of Questions concerning the admissi — 2518, 120 U.S. -, -, law, are matters state bility evidence Lockhart, McCoy v. L.Ed.2d corpus habeas federal reviewable are Cir.1992). made F.2d in alleged error only when the proceedings “cause” attempt to demonstrate protec specific constitutional fringes upon a court nor does the district “prejudice” before it amounts to prejudicial tion or is so Instead, he on appeal. focuses so on do Manning-El Wy v. process. denial of due justice” miscarriage ex of “fundamental the Cir.1984). rick, As F.2d default. asserts procedural to ception adequate oppor an long has as the defendant claims are process rooted his due that reliability of a scientific tunity impeach the to Therefore, if the fairness.” “fundamental test, qualifications person of the ad the and meritorious, Trevino found to be are claims test, impli not ministering process due is the their resolution would automati argues that pre good failure to by a faith cated state’s correction of fundamen cally result in the testing. independent sаmple for See serve a Trevino contends miscarriage justice. of tal Trombetta, California to is sufficient overcome possibility this that permit to the federal procedural and the op- had an undisputed that Trevino appeal. It is the merits of his to consider courts rigorously cross-exam- to portunity, at interpre- agree with this broad do not We perceived flaws her ine Khreiss about miscarriage of the of “fundamental tation introduce his testing methodology, and to approach procedural default. justice” to identifying testimony the inade- expert own repeatedly emphasized Supreme Court has type testing. to of quacies inherent that exception, limiting it scope this narrow Therefore, assuming that Trevino is even exclusively showing actual to a almost testing characterization of the correct in his Zant, McCleskey U.S. innocence. deprivation pro- of due find no protocol, we Saw- cess, prevail on this Trevino cannot — -, 112 S.Ct. at 2519. yer, U.S. at claim. standard, stringent cannot this meet Trevino err in court did therefore the not Identification C. Witness procedur- concluding claims were that these assigns ally also error trial barred.1 Trevino testimony to admit court’s decision Evidence B. Forensic him as the eyewitnesses who identified The incident took of the crimes. perpetrator that court Trevino trial claims shootings of a bar. After testimony place Ms. outside it admitted erred when foot, occurred, the area on gunman fled Khreiss, serologist. Khreiss’s the State’s gather began to around the a crowd performed on testimony tests she related to police ar in the street. clothing. victims When on bloodstain found rived, they their cruisers near the parked Khreiss alleges procedures that Trevino shootings consequently near in scene of the blood-typing the stain employed in were was arrested behind alleg Trevino the crowd. He further adequate and inconclusive. adjacent to the scene of the crime. necessary building perform that Khreiss fаiled es to a was escorted handcuffed and He was background contamination to determine tests deputies. En cruiser between two complains clothing. He also sheriffs for his levels expert testimony should ‍‌​‌​​‌‌​‌​​‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​​‌​‍testimony to find that the expert we were We that if Trevino’s note even admitted, barred, the trial court erred been that not have procedurally he could claim was not it, by excluding think this kind of an we do not prevail this issue. We doubt on the merits of evidentiary ruling presents an issue constitu- would have bеen relevant that such Furthermore, proportions. tional even if appropriate this case. cruiser, (1982) approached curium); route to the (per crowd see also 28 U.S.C. (state § deputies shouting that the officers had court factual determinations perpetrator. are argues arrested the entitled to a presumption of correctness review). inevitably that the witnesses were habeas influenced The Nebraska Supreme by suggestive sight Biggers factors, Court considered the overly being of him found that the witnesses an police ample oppor- led to a car in handcuffs two law tunity to during observe Trevino a period enforcement officials. Trevino claims that thirty least leading minutes up this “show up” suggestive pre- constituted a shooting, during shooting, and immedi- procedure trial identification so con- which ately following shootings. State v. Trevi- reliability eyewitness taminated the no, 230 Neb. 432 N.W.2d at 516. The eyewit- identifications admission of the Nebraska court also concluded that sevеral testimony deprived ness him of due of the witnesses had their attention fixed on of law. during period, this time though oth- A eyewitness conviction based gave only ers him passing prior attention identification at trial will only aside set shootings. Additionally, Id. the Nebras- pre-trial procedures when identification ka court eyewitnesses found that who impermissibly suggestive so give identified in Trevino court high exhibited very rise to a irrepa substantial likelihood of degree of certainty in identifications, their Brathwaite, rable harm.2 Manson v. 432 period and that the time between the crime 98, 109-14, 2243, 2250-53, U.S. 97 S.Ct. 53 subsequent and the only confrontation was Simmons v. United about 20 minutes. Id. States, 377, 384, 967, 971, 390 88 U.S. S.Ct. Reviewing by the facts found the state (1968). 19 L.Ed.2d 1247 ques The central court, we eyewitness find that the identifica- whether, tion is totality under the tions had indicia reliability sufficient circumstances, the identification was reliable warrant their at Therefore, admission trial. despite any suggestive pre or inappropriate the admission of that did not de- trial techniques. Big identification Neil v. prive Trevino rights. сonstitutional 188, gers, 375, 409 U.S. 93 S.Ct. 34 L.Ed.2d (1972). 401 factors to The in evalu consider Sufficiency D. of the Evidence ating the likelihood of misidentification in Trevino contends that also there was opportunity clude: the has to witness view support insufficient evidence to his convic crime; the criminal at the time of the grant tion. We can only habeas relief if we attention; degree witness’s accuracy find, upon presented a review of the evidence prior description witness’s of the crimi at that no rational trier of fact could nal; certainty the level of demonstrated have guilty beyond found the defendant confrontation; the witness at and the Virginia, reasonable doubt. Jackson v. 443 length of between time the crime and the 307, U.S. L.Ed.2d 199-200, confrontation. Id. at 93 S.Ct. at (1979). After a careful review of entire 382-383. record, evidence, though we find that the not overwhelming, more adequate was than previously We have held the evalua support the verdicts. Biggers tion of the factors to be a factual Solem, determination. Graham v. 728 F.2d carefully We have considered Trevino’s Cir.), denied, cert. other contentions and find them mer- without 105 S.Ct. In it. reviewing petition a habeas from state III. CONCLUSION conviction, court the federal courts must ac findings cord the court high state fact a above, For the reasons discussed deci- Mata, measure of deference. Sumner v. denying sion of the district court writ of U.S. corpus L.Ed.2d 480 habeas is affirmed. discussion, assume, purposes 2. For of this impermissibly suggestive we pre-trial constituted an deciding, without that Trevino is correсt in his procedure. identification contention that the circumstances of his arrest bought a left the Trevino before the two Judge, HEANEY, Circuit Senior paper in placed It was of beer. dissenting part. six-pack part and concurring to- out of the bar boys walked bag. Both it carrying bag handed boy gether. I. five toward the and walked companion to his 17-year-old Mexican awas Juan just come out had students who high school Perez was Marco at the time laborer farm standing by their auto- the bar and werе seriously injured. He Heil Mark killed and Marco and killed shot mobiles. then child, married, eight-month-old had an was Heil, high school one of the Mark Perez. pregnant a second with was and his wife shooter, students, both tackled the was prior record. He had no child. He ground. Heil fell and Mark shooter his arrest. time of at the highly intoxicated again pistol dis- During was the scuffle appears shooting motive for Although no severely in- Heil was charged, and Mark record, that Trevino is evidence there in the boys left the scenе. jured. Hispanic Both with past difficulties some may have had apprehended. never Morales was Alfredo law enforcement officials Two Marco Perez. him. locate made to Very little effort was drunk the state that testified for at least officers waited enforcement Law arrested, of his unaware that he was when making any inquiry at the days six before he was disoriented. surroundings, and that migrant laborers employer of the principal pur- testified witnesses Other area, is no evidence therе the Madrid tequila Madrid drank chased and made were to indicate efforts the record shootings occurred. Lounge where relatives, friends, through trace Morales in the explanation satisfactory There is Hispanics agencies. No enforcement law liquor minor hard sold a why the bar record shooting, night of interviewed Fifteen minutes beer. six-pack of and a in initial arrays were used photo occurred, was shootings after satis- process. were Officials identification arrested, hand- bаr. was near the seen readily they an offender and fied that had sick cuffed, jail. He became taken to eyewitnesses testimony of some accepted during the passed out to his stomach they Trevino with that saw who testified Notwithstanding Trevino’s obvious process. time of the in hand at the pistol his small urine, alcohol, intoxication, other no blood they that shootings, and others who testified alco- his blood to determine taken tests were They re- Marco Perez.1 Trevino shoot saw level. hol or chemical hairstyle identify Trevi- to principally lied No at the scene. searched Trevino was that Trevino had stated no. The witnesses person. found on his was gun or ammunition long hair and a had short hair and Morales day, to this gun not been recovered The has beard.2 was of the area search although extensive an officials by law enforcement undertaken II. day. Tre- shooting the next night of the shortly his after were tested vino’s hands appeal are whether principal issues The The were tеsts powder burns. arrest for at trial evidence was introduced sufficient negative. convictions. support each of Trevino’s whether, viewing the after inquiry is was critical when he companion Trevino had a to the light in the most favorable farm evidence Mexican drinking another in fact could any trier prosecution, rational Morales. Just as Alfredo laborer identified bar; eyewit- many in the inconsistencies were There inside of the witnesses 1. Two of the were One descriptions of Alfredo Moralеs. nesses' witness looked the window and other one looked out bushy, having long, him as described they They saw claim out the both door. having as described him beard. Another full hand, gun and one testified small Trevino's very light witness said very, Another mustache. gun. these Both of Trevino fire the that he saw hair, another described and still he had no facial regulars had the bar and both witnesses having indicated as mustache him incident occurred. before the several drinks was taken before Trevino policemen at the scene gunmаn a mustache. custody that had into tempted second-degree elements of the have found essential murder of Mark Heil. beyond jury crime a reasonable doubt. Jackson The trial court instructed the 307, 318-19, Virginia, count, 443 U.S. convict Trevino on this the state must (1979); Louisiana, prove following beyond 2788-89 Johnson a reasonable 356, 362, 1620, 1624, doubt: Groose, Perez v. 1. That intentionally the defendant did (8th Cir.1992). Obviously, F.2d this which, engage in conduct under the applied standard must be to each conviction.3 circumstances as he believed thеm to be, constituted a step substantial in a Second-Degree A The Murder Conviction course of conduct intended to culmi- agree majority I with the that the second- following nate elements of mur- degree murder conviction for the death of degree: der in the second Marco Perez can stand. On the basis of the 2. That the kill defendant Mark Heil. evidence, jury acquitted could have Tre- 3. That intentionally, he do so but with- charge, on this but chose not to do so. vino premeditation. out though testimony many Even of these inconsistent, eyewitness- witnesses was some they gun in es testified that saw a hand, you On the other if find that the immediately hand after Marco Perez was prove beyond State has failed to a reason- killed, and other witnesses testified that able doubt one forego- or more of the sure, saw Trevino shoot Marco Perez. To be elements, ing your duty material it is contrary. pow- there was evidence to the No guilty find the charge defendant not hands, der burns were found on Trevino’s attempted degrеe murder the second found, gun never no ammunition was was charged in Count II of the first informa- possession

found in at the his time was tion. arrested,4 companion and his never lo- (R. T105-06.) The court also instructed Moreover, testimony cated. of the two jury respect required with to the intent killing inmates that confessed to guilty to find Trevino murder: highly suspect, Marco Perez was as was the expert of an Mark Heil’s that. Intent is a it mental therefore jacket. blood was found Trevino’s None- generally remains hidden within the mind theless, eyеwitness testimony standing the rarely where it is conceived. It is if ever sufficient, by though itself was even the con- susceptible by proof direct It evidence. ditions at the time were such that identifica- however, may, be inferred from the words tion was difficult. and acts of the defendant and from the surrounding facts and circumstances his Secondr-Degree B. Attempted conduct. But that intent can be before Murder Conviction evi- such circumstantial inferred from alone, reading transcript begin- After the from dence must be such сharacter it ning examining every to end and the relevant ex- as to exclude reasonable conclusion hibits, except required I am convinced that no rational trier that had the defendant of fact could have convicted Trevino for at- intent. sufficiency by apprehended 3. The issue of of the evidence with 4. When Trevino was first the respect preserved every step police, they "pat-down" to Mark Heil was at conducted a search of - proceedings. all of the A motion to dismiss found. After Trevino and no ammunition was by of the made counts indictment was jail, transported the the Trevino was authori- trial, counsel before at the close of the state’s twenty ‍‌​‌​​‌‌​‌​​‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​​‌​‍strip ties conducted a search and rounds case, and at the end of the trial. It was followed of ammunition were found in his sock. There is by judgment notwithstanding a motion for the explanation in the record as to how law verdict. Trevino also raised the issue before the enforcement officers could have missed this am- Court, Trevino, Supreme Nebraska State v. they munition when searched and cuffed Trevino (1988), and Neb. 432 N.W.2d 514-15 the of the at scene crime. proceed- before the district court at the habeas ing. the sidewalk. added).) both landed Trevino and Because no (R. (emphasis T115 at Trevino, top lying on Mark All he saw was to these party either taken objection was onto his just rolled Mark and then law of the instructions, they the constitute back. binding on us.5 are and case in he had been testified that Ross killing Nicholas the trial was on focus at had five beers p.m. 10:00 and since the bar attempted murder of Perez, the and Marco “pop” and he heard a He said that the most. during the little attention Heil received Mark He saw one of to the window. went or in the briefs closing arguments, high holding pistol a toward Mexicans testified Only five witnesses appeal. filed on two three then heard school kids. incident. Mark Heil respect

with falling. Marco Perez and saw “pops” more had six beers that he Heil testified Mark Mark that he saw testify оn to Ross went shooting, and period preceding two-hour firing gun both man charge Heil in the bar Perez were and Ramon that he into the of his view backwards out men went They stayed in Morales. Trevino and (cid:127)with thing I saw when “The last vacant lots. came Heil After Mark ten minutes. the bar got his my view was like Mark out of went talking with his bar was out of the going chest like he was on [Trevino’s] hands being He saw friends, fired. shots he heard him, I didn’t see to shove then hair had Hispanic with skinny short 617.) (R. at more.” hit, and then he Marco Heil gun. saw that is gunman,” and sitting “[jjumped towards thаt he was testified Jon Gilliland 741-42.) (R. at ap- thing he remembers. Mark Heil pickup the last truck. He saw his couple shots gunman more proach Heil, 15-year-old sister Melissa Heil observe Mark He did not were fired. during Mark, beers she had two testified that tackling Trevino. Ma- into the evening, she went and that testimony, ration- and the all a of this Lounge with her brother Mark On the basis drid Mark Heil was juror say her friends was that the bar with al left could Perezes. She juror talking. A cer- with Trevino. standing by the automobile shot a scuffle and was short, out of this circumstаntial tainly hair came not find that dark could A with Mexican to ex- He said to character them. of such a approached evidence bar about,” except that talking Marco, every I’m clude reasonable conclusion “you what know (R. Mark required intent to kill shooting at Marco. Trevino had and then started find 724.) equally Tre- sound. reasonable than one Heil. It She heard more would hand, accidentally during Heil Mark off gun went gun in his vino had testimony may have him and struggle. he shot “Then While to tackle him. tried (R. 726.) charge of man- supported one shot. the lesser-included She heard at fell.” certainly support does not slaughter, it Perez, the bar age went into Ramon murder, second-degree charge and his brother. Heils a.m. with the 12:50 jury that Trevino required the to find which standing They came out of the bar kill Mark Heil. intended to talking. He saw around the automobiles using a firearm conviction for and hand of the door Trevino come out second-degree murder attempted companion. Tre- commit the bearded sack of beer to his necessarily be must voided of Mark Heil pointed toward Marco vino then walked on the at- predicated it was f*** well because said, get the better “You’d gun (R. second-degree murder conviction. tempted here,” shooting. and started out of in the for assault of Trevino 371.) The conviction fell jumped the shooter Mark Heil is likewise deficient degree of Mark doing first they were “[W]hen onto the sidewalk. too, on the conviction (R. it, was based at 371 because fired.” this another shot second-degree mur- Trevino for added).) top of (emphasis landed Mark Supreme Nebraska approved objection twice been surprising was made that no 5. is not It Beard, Neb. 381 because, State Court. See in relevant at least instruction this Keeton, State v. N.W.2d Nebras- part, ka, jury from pattern it is a instruction 14.11, 259 N.W.2d Neb. Jury that has see Nebraska Instruction Obviously if der. Trevino had been convicted

of the crime of assault in the degree, third

that conviction could still stand because the simply

instruction required bodily

injury intentionally, be caused knowingly, or

recklessly, certainly and that would

case here. circumstances,

Under these I do not be-

lieve we have alternative other than to

remand this matter to the district court with

directions it to void the convictions of respect

Trevino with to Mark Heil. Scott, Jr.,

Isaac Rock, (Au- A. Little AR drey Evans, R. brief), on the plaintiff- for appellant. In re PLEASANT WOODS ASSOCIATES PARTNERSHIP,

LIMITED Mouser, Debtor. Rosalind Bluff, M. AR, Pine for

defendant-appellee.

PLEASANT WOODS ASSOCIATES PARTNERSHIP,

LIMITED Before LOKEN, WOLLMAN and Cirсuit Judges, Plaintiff-Appellant, HUNTER,* Senior District Judge. PER CURIAM. BANK, SIMMONS FIRST NATIONAL Defendant-Appellee. Pleasant Woods Associates Limited Part- nership, only whose substantial asset is a

No. 92-3248. apartment 220-unit complex Rock, in Little Arkansas, voluntary filed a petition pro- United Appeals, States Court of Chapter tection under Bankruptcy Eighth Circuit. January Code in proposed plan and a Submitted June 1993. reorganization in June 1991. ‍‌​‌​​‌‌​‌​​‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​​‌​‍Simmons First Bank, National one of largest debtor’s two Aug. Decided creditors, timely objected to confirmation of plan, arguing faith, good lack of lack of feasibility, inequitable creditors, treatment of negative amortization. Following hearing, bankruptcy (i) court1 plan concluded that the proposed is not capital feasible without a contribution or $240,000 subordinated loan “because there is margin of error contained in the debt- projections” or’s financial and no cash re- (ii) against shortfall; protect serve to HUNTER, FUSSELL, *The HONORABLE ELMO B. Senior 1. The HONORABLE ROBERT F. Judge United States Bankruptcy District for the Judge Western Dis- United States for the Eastern Missouri, sitting by designation. trict of District Arkansas.

Case Details

Case Name: Juan Trevino v. John J. Dahm, Warden

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 13, 1993

Citation: 2 F.3d 829

Docket Number: 92-1863

Court Abbreviation: 8th Cir.