Lee v. Crouse

HARTZ, Before BRISCOE and Circuit HERRERA, Judges, Judge.* District * Herrera, Mexico, sitting by designation. C. Honorable Judith United Judge States District District of New BRISCOE, Lee Judge. subsequently plea entered into a Circuit agreement prosecution, pursuant with the Lee, Wyoming state Lynn a Petitioner agreed plead to which he guilty to convicted of two counts of sexual prisoner exchange 3 and 5 in prose- Counts degree in and sentenced assault the third agreement cution’s to dismiss the remain- imprisonment, to consecutive terms In ing accepting counts. the course of pursuant to 28 sought federal habeas relief guilty plea, Lee’s the trial court asked Lee § 2254 from his sentences. The U.S.C. about details of the two crimes to relief, granted court denied district pleading guilty. which he was With re- (COA) appealability Lee certificate 3, spect to Count Lee admitted that the claim that the state respect to Lee’s “[approximately crime occurred between privilege against trial court violated his September June and of '95 house [his] self-incrimination at the time of sentenc- Gillette,” in Wyoming. Id. at 66. ing. challenges Lee now the merits of 5, With Count Lee admitted an ruling appeal. that on Lee also seeks 4, that “between October 1996 and Decem- (COA) expanded appealability certificate of 31, 1998,” “performed ber oral sex challenge in order to the district court’s with” a minor victim. at 52. Id. When and ruling on double due asked the trial court if he could indicate in petition. claims he raised We definitely “more ... when the[ ] events jurisdiction pursuant exercise 28 U.S.C. occurred,” he indicated he could not. Id. affirm denial of the district court’s indicate, however, at 73. Lee did that he relief on self-incrimina- federal habeas alleged had sexual contact with the victim claim, deny request tion and Lee’s 5 on Count four” occasions. “[t]hree expanded COA. Id. at 76.

I. entry Following guilty plea, of Lee’s compel moved Lee to February On Lee was arrested psychological submit to a evaluation. Af- charged by Wyoming information motion, conducting ter on the state court with five criminal counts aris- trial compel court held could not ing out of his sexual activities with several to submit to such an evaluation. years. minor males over a part, May infor- The trial court pertinent Counts 3 and 5 of the sentenced Lee charged During sentencing hearing, mation Lee with sexual assault testimony degree prosecution presented the third violation of from 6-2-304(a)(I), Heineke, professional §§ Annotated 6-2- a licensed Statutes William expertise and 6-10-102. at 7. Count 3 counselor with “in the area of App. mi- alleged inappropriate activity “that between March 1994 and between sexual 21, 1995,” September sexual nors and adults.” Id. at Heineke Lee “inflicted case, victim, opined, upon intrusion on a when at the time based his review of the [the years age high category” was less than 16 that Lee was “in a risk victim] years at least four older than terms of likelihood of recidivism. Id. at [Lee] w[as] “al- App. opined at 41. Count 5 134. Heineke further that Lee had [the victim].” disorder, personality id. at leged between October 1996 and narcissistic 31, 1998,” unlawfully “[h]igh “post risk” to presented December Lee “did a victim Id. at 146. At the prepubescent inflict sexual intrusion on when minors.” evidence, counsel the victim was less than 16 and conclusion of the [Lee] w[as] 41-42. treat- years argued at least four older....” Id. at that “Lee amenable to [wa]s ” Now, explained I you pled guilty at 159. when or “rehabilitation.... ment” you gave up your right to you stated, response: “How trial court have, I appeal legal from a sentence. not submitted to I know that? He’s would however, your from drawn inferences I can’t take that any kind of evaluation. cooperate failure to the evaluation argued: counsel then faith.” Id. Lee’s on you may process. That’s an issue which “Correct, you I also should not but think appeal Supreme want to to the Court. not submit to an fact that he did take the your attorney. You can discuss it with he’s not ame- to the fact that’s evaluation permissible that would be a It’s one willing to do that. to treatment or nable * * * though you pled guilty. appeal even chose not to sub- fact that he [T]he [your attor- You should discuss that with does not mean himself to an evaluation mit ney.] not amenable to treatment that he’s Id. at 164. with that.” cooperate would not that he Later, the trial court 159-60. when Id. at May days six after the On sentence, it stated: announced its hearing, prosecution filed a illegal motion to correct sentence as to you request there was a that Early on The motion was based on the Count 3. an evaluation submit to [Lee] that the offense prosecution’s realization requested you that do The State State. charged in 3 occurred in 1995 when Count precedents] I from that. reviewed penalty specified Wy- the maximum under Supreme States the United oming law for sexual assault in the third require you I to do concluded couldn’t degree years’ imprisonment. was five that, in- that I could draw adverse but words, prosecution’s other motion as- your participate from failure to ferences illegally that had serted Lee been sen- in that. provision tenced under in place that was harsher than the one at treatment, might You be amenable the time the crime was committed. going I know and I’m not don’t hearings The trial court held two on the I Accordingly, my faith. see take it on prosecution’s During motion. the second keep you of isolated from duty as one hearing, permitted such the trial court long period potential victims for as “supplement the record on I can do that. factual basis with to Count 5” of the Court It’s the sentence underly- in order to establish that the acts you’ll incarcerated on each count for be ing 5 occurred after Count than 12 nor more of not less Wyoming legislature when the increased years. The sentences will run than [15] penalty the maximum for sexual assault consecutively. years.1 degree the third from five to fifteen announcing 161-62. After the sen- Id. at 305. At the conclusion of the second tences, hearing, trial court Lee to the trial court then stated Lee: resenteneed testimony App. consisted of from at 374. The district court further con- 1. The evidence City Eiger, police Eiger’s testimony William officer with "simply re- cluded Gillette, spoke Wyoming, who testified that he peated provided information in the affidavit they crimes and indi- to the victims of Lee’s probable [presentence and the PSI cause of sexual assault had oc- cated an incident investigation] report which indicated the sex- fall of at Lee's home. curred in the victim in Count occurred [the 5] ual assault of App. As noted the district at 308-09. after 1997.” Id. court, "testimony very Eiger’s brief....” Id. at 268-69. The Wyoming fifty-four evaluation. imprisonment a terna of the maximum sixty months Count Court also concluded there was under law at sentence available no double violation arising out of underly- time Lee committed the acts the trial court’s prose- decision to allow the ing again 3. The trial court ordered Count cution to provide supplemental evidence the sentences on Counts 3 and regarding purposes Count 5 for of sentenc- consecutively. run would ing, noting that “the ... presented] case neither multiple prosecutions nor multiple appealed to the punishments for the same offense.” Id. Wyoming, arguing, pertinent Court of trial part, that court abused its dis- “[t]he it sentencing

cretion” the time of when Lee then filed his peti- federal habeas against adverse [him] “formed inferences (1) claiming tion the state trial court violat- invoking right for his Fifth Amendment ed his privilege against self-incrimination against self-incrimination.” Id. at 171. In by drawing an adverse inference from his argument, of that Lee asserted to participate refusal in a court-ordered “participated [psycho- that if he had in the (2) evaluation, psychological prosecu- the evaluation, likely logical] would have tion prohibition violated the constitutional upon provide been called information against jeopardy by supplementing double against that could used him [have] be[en] original the record after his sentencing Thus, Id. at 182. sentencing.” Lee (3) hearing, and his due process rights argued, right he “had a Fifth Amendment were violated because the date of the of- po- to refuse to submit himself to such a underlying fense Count 5 was not estab- tentially incriminating psychological evalu- beyond lished a reasonable doubt. The turn, ation.” Id. In asserted, Lee the trial district court denied relief and dismissed discretionary court “overstepped [its] petition, granted Lee a with COA effectively right bounds when took this [it] respect to the self-incrimination issue. away by drawing from” him an adverse inference from his refusal to submit to an II. Id. separate argument, evaluation. a A SELF-INCRIMINATION Lee also asserted that the trial court erred in allowing supplement effectively Lee contends the trial court justify the record in order to the sentence penalized exercising him for his Fifth imposed to Count 5. More privilege Amendment against self-incrimi- specifically, argued proce- this refusing psycho- nation and to submit to a issue.” dure “raised a double logical by drawing evaluation an adverse at 267. inference from that refusal at the time of Wyoming Supreme sentencing. affirmed Lee first raised this issue during prosecution’s Lee’s sentences on December 2001.2 on the State, Lee v. evaluation, (Wyo.2001). psychological 36 P.3d 1133 In motion for a ar- so, doing Wyoming Supreme guing that the Court’s decision States, Mitchell v. United concluded the trial court acted properly (1999), considering, purposes sentencing, 143 L.Ed.2d psychological ordering court from “prevented [trial] Lee’s refusal submit to granted 2. The Court did reverse credit for time served which had been original and remand the case to the district court in the sentence but omitted from the purpose reinstating the limited amended sentence. offenders, (citation and, therefore, of sex implicitly an assessment prevented the court The district court this case also precedent from negative inference drawing to “aid the court sought from the assessment an assess- undergo such his refusal or not determining [Mr. Lee] whether Lee, 1141. The trial P.3d at ment.” to others.” presents danger We from “distinguished [Lee’s] Mitchell considerations approved of such that case involved situation because (citation omitted). sentencing, course of defendant, who had attempt to force cooperate A defendant’s failure to testify regarding certain pleaded guilty, for a trial certainly is a valid factor PSI crime with which she was facts of the contemplating court to consider in ruled, trial Having so charged.” Id. said, As we have appropriate sentence. it was draw- expressly indicated court then of the sentencing requires consideration from Lee’s refus- ing an adverse inference surrounding the crime circumstances psychological to a evaluation. al to submit criminal, (cita- of the and the character from the entirely it clear Although omitted). This record reflected tion hearing, ap- transcript supported evidence that substantial inferred from Lee’s pears the trial court imposition of the maximum court’s [trial] that was not “amenable to treat- refusal he statute, by including allowed sentence ment,” “to in turn concluded it needed and testimony the of three victims who were potential isolated from victims keep [Lee] Lee, by groomed exploitation Mr. App. at long period” possible. for as testimony psy- of a the unrefuted words, it that Lee’s appears 162. In other chologist who reviewed all the informa- declining trial court silence resulted the presented tion and concluded Mr. Lee grounds to reduce Lee’s sentences on the continuing community, risk to the amenability to treatment. guilt. Mr. own statement of his Fifth Lee reasserted the Amendment Had Mr. Lee consented to the assess- appeal. Wyoming on direct Su- issue ment, might provided informa- Court, briefly discussing after the tion that was to treatment he amenable Mitchell, rejected holding of facts and It supported lesser sentence. Lee’s claim: right to refuse the assessment and is mandated to [T]he [trial] right the district court’s to consider such gather and consider certain information determining appropriate refusal in the 32(a) prior sentencing. W.R.Cr.P. re- sentence. quires every felony be done in PSI report and a be submitted to the case Wyo- Lee does not contend the Because That report district court. must con- ming Supreme decision involved an Court’s tain, facts, among other “[flnformation facts,” “unreasonable determination the history and characteristics of about the 2254(d)(2), only way see 28 U.S.C. the defendant, ... circum- including can obtain federal habeas relief is estab- affecting the defendant’s behav- stances Wyoming Supreme lish that Court’s may helpful imposing that be sen- ior adjudication claim of his self-incrimination tence,” 32(a)(2)(A), as well as W.R.Cr.P. contrary in a that was “resulted decision other information as be re- “[s]uch to, application or involved an unreasonable by the court.” quired W.R.Cr.P. law, of, 32(a)(2)(D). clearly established Federal as de- approved This court has assessments, Supreme termined Court psychological use of 2254(d)(1). case, requested in this States.” 28 U.S.C. such as the one United

603 Wyoming Supreme that psychiatrist’s testimony To establish concluded adjudication “contrary Court’s to” violated the defendant’s Fifth Amendment law, clearly established federal Lee must privilege against compelled self-incrimina- Wyoming Supreme demonstrate so, doing tion. the Supreme opposite Court at a conclusion “arrive[d] addition to holding the Fifth Amendment Supreme] that reached on a [the Court privilege applicable to the sentencing law,” question of case “decide[d][the] phase capital of a trial and to statements differently Supreme] than has [the uttered in psychiatric the context of a ex- materially indistinguishable set of amination, emphasized that a defendant’s Taylor, facts.” Williams v. right Fifth Amendment against self-in- L.Ed.2d 389 crimination only “is fulfilled when a crimi- (2000). To establish that nal defendant guaranteed right adjudication Supreme Court’s involved an remain silent speak unless he chooses to clearly “unreasonable of’ es- will, the unfettered exercise of his own law, tablished federal demon- must to suffer no penalty for such silence.” strate (internal Id. at quota- S.Ct. 1866 governing legal the correct “identifie[d] tions principle Supreme] from deci- [the Court’s Mitchell involved a federal criminal de- unreasonably sions applie[d] prin- this pled guilty fendant who conspiring ciple to the facts” of his case. Id. distribute cocaine and three counts of dis- Lee asserts that Court’s tributing cocaine within one thousand feet Mitchell, Smith, decisions in Estelle playground. of a school or At the sentenc- 68 L.Ed.2d 359 ing hearing, government the presented a (1981), California, and Griffin variety of concerning evidence the amount (1965), 85 S.Ct. 14 L.Ed.2d 106 of cocaine the defendant had distrib- “provide govern the clear rules which this uted, including testimony from three of the Aplt. Griffin, case.” Br. at 16. In the defendant’s co-conspirators. The district Amendment, Court held “that the Fifth court, government’s after the evi- its direct to the Federal Gov- dence, that, “ruled a consequence of her ernment, bearing and in its on the States guilty plea, right [the had no to defendant] Amendment, by reason of the Fourteenth respect remain silent with to the details of by forbids either comment the her crimes.” 526 at U.S. S.Ct. by on the accused’s silence or instructions Notwithstanding ruling, 1307. this the de- the court that such silence is evidence of testify. Accordingly, fendant refused to guilt.” 380 U.S. at 85 S.Ct. testimony the district court relied ruling Estelle and Mitchell extended that co-conspirators the defendant’s and ex- to certain criminal sentencing contexts. pressly it it stated on the record that “held Estelle involved a petition federal habeas against [the didn’t defendant] [she] by a capital filed defendant who had testify. come forward” and Id. After her subjected pre-trial been to a psychiatric by sentence was affirmed the Third Cir- examination in order to determine his com- cuit, the sought grant- defendant petence psychiatrist to stand trial. The Supreme ed review Court. The subsequently testified at decision, phase of a 5-4 reversed and re- opined the defendant’s trial and so, doing “on manded the case. In the Court the crucial issue of [the defendant’s] ” (1) dangerousness.... guilty plea future at held that does not result privi- 1866. The in a Fifth Amendment S.Ct. waiver of the greatest brings to [us] the sen- Which self-incrimination lege against —the inconsistency of all: the (2) most case, and “in de- of the tencing phase bizarre — rule that the Court combination crime which bear facts about the termining of our today with the balance adopts sentence,” severity it is upon the relating to jurisprudence for a trial court “drawn impermissible country particular. this “[C]ourts from the defendant’s inference an adverse said, England,” and in we have 316-17, 119 at silence.” a sen- “practiced policy under which holding, latter to this With a wide dis- tencing judge exercise [can] normal rule in a that “[t]he noted types in the of evi- cretion sources negative inference is that no criminal case determining him in dence used to assist testify failure from the defendant’s punishment kind and extent of to be adopt it an “decline[d] permitted,” (ci- within limits fixed law.” imposed sentencing phase exception sentencing judge tation “[A] regard factual deter- criminal case with ‘may appropriately inquiry conduct the circumstances respecting minations unlimited scope, largely broad in either 327-28, the crime.” Id. at and details of kind of information he as to the noted that 1307. The Court consider, or the source from which often has a motive Government “[t]he ” (citation omitted). may come.’ “Few sentence, so the central demand a severe sentencing judge,” to a facts available protect a de- privilege- purpose —-to observed, we have “are more relevant to unwilling being the instru- fendant from the ‘likelihood that will [a defendant] condemnation— his or her own ment of more, transgress hope no that he Id. at importance.” remains of vital may respond to rehabilitative efforts to the Court stat- closing, 119 S.Ct. 1307. career, future [and] assist with lawful ed: degree to which he does does not ” retains the burden of The Government society’ deem himself war with relevant to the crime proving facts willingness cooper- than a defendant’s and cannot enlist sentencing phase (citation omitted). Today’s opinion ate. in this at the ex- the defendant states, inconspicuous in as manner as privilege. the self-incrimination pense of possible very analysis at the end of its upon bears the determi- (one Whether silence if imagines that the statement were remorse, upon a lack of or nation of orally spoken it would be in a delivered responsibility purposes of for acceptance voice, very low and with the Court’s over, adjustment in provided mouth), downward holding hand its its Sentencing § 3E1.1 of the United States applies only to inferences drawn from (1998), separate question. is a determining Guidelines “in the facts of the silence (citation omitted). us, no express It and we is not before offense.” “Whether on it. of upon view silence bears the determination remorse, acceptance a of upon lack of 330, 119 Id. at S.Ct. 1307. responsibility purposes of the down- justices The in Mitchell dissenting adjustment four 3E1.1 of provided ward majority’s holding and its Sentencing criticized the Guidelines the United States holding ap- (1998), its separate question” refusal to address whether is a on which view, (citation than plied majority expresses to situations other where sen- the no of Never that we have said tencing “determining court was the facts mind dicta, before, that “[w]e albeit in doubt the offense”: principled that a distinction be the sentencer has used the silence for purpose either or for neither. ‘enhancing’ the punish- drawn between If, hand, imposed upon petitioner ment the on the other the ulti- mately decides—in the of fullness time ‘leniency’ him the he claims denying period and after a decent of confusion in cooperat- if he had appropriate would be the courts—that the lower extension of (citation omitted). ed.” today announced is not limited to Griffin swept clutter under the Of course the offense,” “determining of facts then rug limiting opinion “determin- system it will created which we merely ing facts of the offense” is give sentencing judge access to all 3E1.1, application today’s opinion of evidence, sorts of including out-of-court all but its determinations hearsay, the most remote concerning the acceptance responsibility, repen- defendant, character prior his tance, character, dangerous- and future misdeeds, acceptance of responsibili- ness, prosecu- both federal ty ways, and determination to mend his say, probably tions—that is to to what is but declare piece taboo the most obvious of what most all the bulk is standing of firsthand evidence in front of ultimately about. If the Court de- judge: the defendant’s refusal of time cides—in the fullness and after a cooperate court. Such a rule decent of confusion the lower judge eyes orders the to avert his from the “no elephant courts—that inference” rule is the courtroom when judge’s job “determining up elephant. indeed limited to size facts offense,” system then will have a we patent inadequacy of both of which state court can increase the these regard courses with to determin- drug possessor ing sentence of a matters other than the “facts of the convicted by simply offense” is not finessed resolv- say many who how refuses ounces he ing, being, for the time not to choose possessed suggests because —not between them. Sooner or later (to possessed larger amount make made, choice must be and the fact that such inference would be unconstitu- unsatisfactory both alternatives are cries tional!) coop- but because his refusal to out that the Court’s extension of Griffin suggests unrepentant. Apart erate he is is a mistake. logical from the fact that there is no 338-41, 119 Id. S.Ct. 1307. drawing within the basis such line (whereas sentencing phase drawing a Considering these three decisions guilt line between is en- together, we conclude it remains unan tirely logical), produced pro- the result swered Court whether a vides new for Mr. Bumble’s re- sentencing non-capital may, court in a case only nowned evaluation of the law. Its purposes determining for other than sensible feature is that it will almost conviction, an facts of the offense of draw unenforceable, always it be since will from a criminal defen adverse inference ordinarily testify cooperate.3 to or Al- impossible be to tell whether dant’s refusal Mitchell, E.g., 3. Since the circuit courts have the offense of conviction. United States readily holding, Warren, (3d Cir.2003) confined Mitchell to its stated v. 338 F.3d 263 sentencing rely and have allowed on, courts to (holding sentencing a that the denial of reduc- from, a defendant’s draw inferences § tion under U.S.S.G. 5C1.2 based on a de- rights exercise of his Fifth Amendment for post-guilty-plea a fendant’s silence constituted purposes determining other than the facts of 606 appeal in Es order to him to the district

though Lee contends decision allow indicates, jeopardy court’s denial of the double and implies, or at clearly least telle process asserted arguments due he in his a sentencing for court improper that it is federal In order for petition. habeas us to to an adverse inference under such draw COA, grant a make “a Lee must substan- circumstances, distinguishable Estelle tial showing of the denial of constitution- capital case and the Su because was 2253(c)(2). right.” al To do 28 U.S.C. expressly emphasized “the so, Lee “that must demonstrate reasonable to at gravity of the decision be made (or, jurists could debate whether penalty phase” such case. 451 U.S. that) matter, agree the [issue] should have Indeed, had 101 S.Ct. 1866. Estelle manner been resolved a different or that issue, Court Mitchell resolved to adequate issue[ deserve ] w[as] (and as clearly would have said much encouragement proceed further.” Slack alto decision in Mitchell have been McDaniel, 473, 484, 120 529 U.S. Instead, gether unnecessary). majori (2000) (internal quo- L.Ed.2d ty in limited the Mitchell tation marks and citation it, i.e., the facts before “where Estelle to s[ought] to the Government use defen Lee’s and due [the double infer arguments silence to commission of dis dant’s] concern the sentence he re- puted noted, acts” for ceived for purposes previously criminal of sen Count 5. As x1307, tencing, charged Count Lee with sexual assault alleged expressly declined to consider whether that between October 31, 1998, where, case, December Lee committed applied Estelle oral sex on a minor victim. At the sought si time he use Lee’s pled guilty admitted other to Count Lee these purposes determining lence for than allegations, range, including the date offense of the facts of the conviction. was unable to indicate more definitely Thus, assertions, contrary to Lee’s there when the Lee events occurred. did indi- “clearly established” was no federal law cate, however, that he had sexual contact prohibiting the trial court what did alleged with the victim 5 on Count three case, i.e., drawing adverse inference or four At occasions. hear- from to submit a psycho- Lee’s refusal 24, 2000, ing May the district court logical purposes evaluation of deter- sentenced than Lee to not less twelve nor represented mining whether a con- more than years fifteen on Count 5. Nota- society tinuing danger whether and/or bly, that sentence was within the fifteen- was amenable rehabilitation. year maximum sentence authorized under turn, then, Wyoming Supreme Court’s Wyoming third-degree law for sexual as- affirming decision the trial court’s actions occurring July saults after see “contrary to” or an “unreasonable 2—306(a)(iii), Wyo. Stat. Ann. but far 6— clearly application of’ established federal greater five-year than the maximum sen- law. tence under authorized law for 1,1997. such prior crimes On REQUEST II. FOR COA—DOUBLE 21, 2000, during held which PROCESS JEOPARDY/DUE prosecution the was allowed “supple- expand Lee also asks us to the COA ment the on the factual record basis with by initially granted the district court in Count 5” order establish implications). penalty “denied benefit” rather than a thus avoids Fifth Amendment (2000). underlying facts of the crime oc- that the L.Ed.2d In 435] Although after the trial curred the United States ultimately resentenced Lee on Count Jersey Court found a New state statute underlying the acts that count 3 because unconstitutional because it removed de- 1, 1997, the trial prior occurred termination of one of the elements of a court did not alter Lee’s sentence on felony offense—whether the offense was Count purpose committed with biased —from jury the by judge determination the argued direct Lee appeal, his on the lesser standard of illegally preponderance sentenced on Count 5. Lee argued sentencing process also that the of the evidence. We fail to see how this 5, in trial particular Count the court’s de- authority any bearing has on the circum- case, prosecution present cision to (citation omitted). allow stances of this supplemental regarding evidence the dates jeopardy protects The double clause underlying when the acts Count 5 oc- against prosecution a second for the curred, right violated his not to be sub- same acquittal, offense after a second jected jeopardy. to double The prosecution for the same offense after rejected Supreme Court both of these ar- conviction, and multiple punishments for guments. Wyoming Supreme offense, (citations omitted). the same “[bjecause spe- first concluded that [Lee] analyze protection against When we cifically acknowledged guilt his and that jeopardy double in terms multiple the crime occurred time between prosecutions punish and cumulative 31, 1998,” October and December ments, apply statutory we elements his sentence on 5 was not illegal. Count in Blockburger test defined v. United App. Wyoming Supreme 265. The States, 284 U.S. 299 [52 S.Ct. supplemen- Court also concluded that the (1932). (citation omitted). L.Ed. 306] presented by tal evidence However, presents the instant case nei regarding “superfluous 5 was Count be- multiple prosecutions ther nor multiple already all the cause evidence offered ex- punishments same offense. isted record....” Id. at Moreover, Mr. Lee has failed to cite specifically, Wyoming 266. More Su- persuasive authority cogent or make ar preme prosecu- Court noted that “[t]he gument of his double jeopar ‘supplemental’ tion’s sole evidence consist- contentions, (citations dy a police testimony regarding ed of officer’s Therefore, the issue no merits further the same information that was included in consideration. Thus, probable the affidavit of cause.” Id. Court concluded Id. at 267-68. supplement that “while effort to th[e] jeopardy Lee reasserted these double imposed

record after the sentence was arguments in and due his federal appropriate, not have been no harm (and petition peti- habeas included Finally, Wyoming was done.” Id. Su- process arguments tion due rejected jeopar- Lee’s double additional court). dy argument: were not asserted argued, particular, “where there complains Mr. Lee also that the sen change original has been no related to the tencing process somehow raised dou (either However, by appeal conviction a successful ble issue. this claim ap- merely by the conviction the defendant or supported Ap reference to State), prendi Jersey, of the sentence peal New 530 U.S. 466 [120 July LB after the 1997 effec- oppor- to one saulted only be entitled should State Addi- penalty tive date of the increase. the sentence tunity to demonstrate in the record at tionally, of convic- the evidence for the offense imposed proper is sentencing provided a factual basis that “By adding to the at 27. App. tion.” sexually LB after fact,” argued, “the Mr. Lee assaulted Lee record after the (citation to record justify a sentence 1997. to permitted State was Wyo- not that [the] the sentence which Mr. Lee has shown longer than three times reject- ming Supreme improperly Court the offense of convic- permissible jeopardy process admitted at the ed his due double the facts tion based on Lastly, citing Ap- argument. Id. plea.” time of the hearing argued prendi, “[t]he Lee Id. 390-91. supplemented the record” the State

which reviewing ap After the record on comport with the due could “not be said conclude there is no basis for peal, we necessary to prove process standards granting a COA to Lee on his double the offense—which tri- ‘fact’—the date of To jeopardy process arguments. and due sentencing exposure.” pled maximum [his] with, Wyoming begin fact, found, as a matter historical rejected argu- Lee’s The district (1) wrongful engaging Lee admitted ments: (2) 1, 1997, conduct after jeopardy and due

Mr. Lee’s double “supplemental” presented by evidence misplaced. are This arguments “superfluous” prosecution was because agrees Su- same evidence was before the trial court at appli- not Court that is sentencing. of Lee’s The first of the time case and does not cable to this findings amply supported by these pro- or a due (in either a double appeal particular record on the tran subjected Lee not cess claim. Mr. script guilty plea hearing), for the same multiple punishments finding cannot that the thus Lee establish Further, although a court offense. amounted to an “unreasonable determina once not increase a defendant’s sentence light presented tion evidence legitimate expecta- the defendant has court proceeding.” the state 28 U.S.C. sentence, finality original in his tion of 2254(d)(2). finding, As for the second (citation omitted), Mr. Lee’s sentence argued Lee has not that it was unreason by the trial court. was not increased 2254(d)(2), under nor has he even able adequate appeal a defendant ad- record on By pleading guilty, presented up in the crime to and allow us to determine whether the evi mits involvement to the trial court at the including alleged the last date dence available (citation omitted). charge, Mr. Lee time of was the same as the pleaded supplemental presented by on LB evidence later guilty to sexual assault Moreover, prosecution.4 minor victim in between as noted [the 5] Count 4, 1996, simply Lee October and December subjected punish supplemental multiple evidence offered has been E.g., for the same offense. North change the state does not the fact that ments Pearce, sexually Mr. Lee admitted that he as- Carolina v. appendix Although in his has not included all the materials available has included copy at which the the trial court at the time of evidence, presented "supplemental'' (1969) (discuss- 2072, 23 L.Ed.2d 656 improper been to sentence Mr. Lee years’

ing Jeopardy imprisonment the Double Clause of the on Count V Amendment). Rather, Fifth unless he he was sub- committed the sexual assault on 1, 1997, July or after jected single, year to a twelve-to-fifteen the effective date of increasing the statute engag- penal- sentence for his admitted crime of maximum ty years from five ing point in oral sex with a minor at some to fifteen. Mr. Lee’s 1, claim, 31, due-process July relying between and December Jersey, New 1998.5 530 U.S. 120 S.Ct. (2000) (handed 147 L.Ed.2d 435 down The district court’s denial of federal ha- while his case was on direct appeal), is that beas relief with to Lee’s Fifth improperly years’ sentenced to 15 Amendment self-incrimination claim AF- is imprisonment found, no jury because and request FIRMED. Lee’s for an expanded admit, he did not that the offense occurred DENIED. COA is 30,1997. after June HARTZ, Judge, concurring Circuit majority The opinion avoids addressing part and dissenting part: legal component of this contention rejecting premise. the factual It concludes agree

I that Mr. Lee has not established that Wyoming Supreme ruling Court’s a violation privilege against of his self- that “Lee admitted to engaging wrong- incrimination and is not entitled to a COA 1, 1997, ful July conduct after amply is would, double-jeopardy on his claim. I (in supported by the record on appeal par- however, grant due-process a COA on his ticular the transcript guilt plea of Lee’s claim and remand for further proceedings.

hearing)----” disagree. 451 F.3d 608. I I. DISAGREEMENT WITH MAJORI- plea Mr. Lee’s to Count V did consti-

TY tute admission that he committed the 1, 1997; crime after nor did state- My disagreement majority with the re- hearing. ments plead guilty lates to what it means to to a charge that a discrete offense was commit- Count V states: point ted at some within an extended time 4, 1996, On or October between and period. majority believes that such a 31, 1998, County, December in Campbell plea constitutes an admission that the de- Wyoming, unlawfully did in- Defendant fendant committed the offense at some victim, flict sexual intrusion on a when during time the final two-thirds of that act, at the time of the commission of the period. accept I cannot that proposition. (16) the victim was less than sixteen This_point important years in the age case be- and the actor was at least because, (4) agree, years victim, fore us as we all it would four older than the Curiously, acknowledges dissent as did the Court and the court, pled guilty committing plea an assault "on district that Lee's constitutes an during some date up the 27-month stated admission of in the crime involvement 5,” including alleged in Count but nevertheless asserts that the the last date in Count 5 (i.e., 1998). plea cannot be construed as an admission that of the indictment December Broce, an assault occurred on or after See United States v. assertion, however, (1989) (noting This latter in the flies face 102 L.Ed.2d 927 express guilty plea terms of the indictment and that a "is an that [the admission plea charged Lee's admissions the time of the hear- defendant] committed the crime (internal ing, him”) effectively improperly against quotation narrows marks omit- conclude, ted). plea. the terms of Lee's We instead at some time within committed the assault perform did oral Defendant specifically: could well have LB, period. is That time date of birth the whose with sex 1, The 1985, Wyoming July 4, in violation been October before 6-2-306, 2—304(a)(i), accept- § and in properly court would have acted § Statute 6— if Lee had 6-10-102, felony. to Count V Mr. ing plea committing specifical- the offense admitted charge, cited in the the three statutes Of 1, 1997; 5, 1996; January ly on October penal- relate to and 6-10-102 §§ 6-2-306 30, 1997; any or on other date on June §in 6-2- offense is defined ties. The 1, 1997, alleged and July within before 304(a)(i), states: which (Of course, have ac- it could also period. (a) in sexual assault commits An actor if Lee had admitted cepted plea Mr. if, circumstances degree under the third date specific the offense on a committing in the constituting assault sexual 1, 1997, alleged July and within the after degree: first or second indictment, to the period.) simple plea A (4) (i) years four actor is at least The not, not, more, could es- did and without and inflicts sexual the victim older than July that offense occurred after tablish age under the on a victim intrusion 1,1997. (16) years.... sixteen is a Thus, alleged Count V the offense to “on or be- The indictment’s reference time, point at one occurring act discrete 4, 1996, 31, and December tween October continuing offense. As the not a not, conspiracy charge, in a 1998” was as appeal: on Mr. Lee’s wrote Supreme Court charging that a continu- purpose for the for sexual as- a conviction To obtain throughout that ing ongoing offense was LB, degree of the state in the third sault Rather, as is often the case period. entire the elements of the only prove needed offenses, victim with child-sexual-abuse 2—304(a)(i); e.g., crime set out 6— dates for the give precise was unable to sexual assault committed defendant offense, impre- had to be so the indictment LB inflicting sexual intrusion on who time of the concerning cise offense. age years of sixteen under the See, 453, Altgilbers, 109 N.M. e.g., State years than four was more the defendant 680, (Ct.App.1989). 693-95 786 P.2d older. grand jury that saying indictment is 1133, (Wyo. 36 P.3d Wyoming, Lee v. offense oc- could not be sure when the curred, it was some time within the 2001). Indeed, if the state period. 27-month The error inci- proved, say, specific have four could majority opinion, seconded specific on L.B. on dents of sexual assault pleaded guilty to the saying, “Mr. 1996, 4, October and De- dates between third-degree sexual assault on charge of Mr. Lee could have been cember L.B., any admitting the crime occurred 4, 1996, charged separate four counts. time the dates October between V, short, 31, 1998, by pleading guilty to Count Mr. a time frame through December admitting that he committed a half Lee was not year over a and a which extended He 1, 1997, after June July effective date of sexual assault beyond the only that committed an admitting he sentencing statute.” Id. 1138— the new added). 27-month during in assault on some date patently That is (emphasis V, date did not admit that stated Count plea Mr. Lee’s correct. anytime” just committed “at could as well been before the assault say plea afterwards. To just that he alleged period; admitted McDaniel, constitutes an admission COA set forth in Slack v. Count V 1, 1997, was committed after offense 146 L.Ed.2d (2000) (merits saying pleads guilty is like that one who to 542 of claim procedural COA). of more than an ounce of heroin possession bar must justify be debatable to heroin, a ton of thereby possessing admits I begin by addressing exhaustion. To quantity exceeding other ounce. analyze that issue I first describe Mr. Crockett, v. 812 F.2d United States Cf. argument Lee’s to Wyoming Supreme (10th Cir.1987) (plea charge to of con 629 argument then summarize his to marijuana spiracy possess to with intent to (which this court I believe to have substan- conspiracy distribute did not admit that merit), tial and then conclude that his kilograms than 50 of mari involved more argument fairly state-court did not present juana). argument Finally, now makes. I say anything Nor did Mr. Lee turn to what I proper believe be the any that plea greater preci- disposition added of appeal. this contrary, sion to his admission. On the II. EXHAUSTION by if judge any

when asked he could be definite, more he said that he could not. AEDPA provides prisoner’s that a state Thus, support there is no evidence to for habeas relief not be finding plea that Mr. Lee admitted at his granted prisoner unless the has exhausted hearing that he had committed a sexual the remedies available in court. state 28 hold, assault after June 1997. I would 2254(b)(1)(A). U.S.C. Picard Con 2254(e)(i), by as 28 that required U.S.C. nor, 270, 275-76, 404 U.S. 30 Wyoming Supreme clearly Court erred (1971), L.Ed.2d 438 the United States Su in making finding. explained: emphasize Court “We fairly pre the federal claim must be

Believing as I do that Mr. Lee did not sented if Only state courts.... plea hearing admit at his that he had opportunity state courts have had the first charged committed the offense after the sought to hear the claim to be vindicated permitting effective date of the statute in a proceeding federal habeas does it sentence, imposition of a I 15-year would make sense to of speak exhaustion summarily dispose of Mr. due- added); (emphasis remedies.” Rather, by denying claim a COA. Sullivan, see also Nichols v. F.2d 867 below, I explained grant would a COA Cir.1989) (10th (discussing 1252 fair- (1) on that claim because he raises a sub- presentation requirement). claim Ap- stantial constitutional based on (2) prendi; although I hold that would Appeal Mr. A. Lee’s State procedurally the claim is barred failure remedies, pertinent exhaust state a reasonable The section of Mr. Lee’s brief jurist might procedural Wyoming Supreme find no bar when to the carried giving the heading: matter the mere first look de- “The trial court committed Cockrell, in allowing supplement scribed Miller-El v. error the State to sentencing.” Aplee. L.Ed.2d 931 the factual basis after (2003) (the at 24. the seven- App. COA determination is thresh- Over the course of heading, old inquiry require page “does not full con- discussion under this Mr. judge’s sideration lack of legal argued of the factual or bases Lee claims”). Thus, authority adduced in Rules of under the requirements supplement Mr. Lee has satisfied the the rec- Criminal Procedure a “fact” necessary prove adding “extra standards ord; error judge’s 26; maximum triple which would Mr. Lee’s id. at game,” innings to a baseball See, e.g., Appren Wyo- sentencing exposure. Rule 11 of the judge’s violation Procedure, Jersey, New [530 466] which di v. of Criminal ming Rules (U.S.2000) and, finally, the L.Ed.2d [147 435] S.Ct. 2348 guilty pleas; relates to (full process protections apply with double-jeopardy princi- due alleged violation fact which can increase supplementa- regard record from the ples arising beyond the otherwise available containing the sentence paragraphs two tion. The maximum). statutory were as follows: double-jeopardy argument Id. at 29-30. failed changed parties and all law The things can and Those kinds of to notice. respond- The problem is with how happen. do ed to Mr. Lee’s citation trial court tried and the purpose: at its expressing puzzlement rug by the mistakes under sweep to complains Lee also that the sentenc Mr. to fit the belatedly changing the facts ing process somehow raised a double However, the taken. previously action However, this claim is jeopardy issue. a to take into account State’s failure merely by Ap reference to supported good is not a reason changed law 466, Jersey, v. New 120 prendi out on its ear. throw the Constitution (2000). In 147 L.Ed.2d 435 S.Ct. is not an excuse. Ignorance the law of Supreme Apprendi, the United States very clear gives The Fifth Amendment Jersey a state statute Court found New against double protection it removed de unconstitutional because and the state’s prosecutions, criminal a termination of one of the elements of an ex- the record is supplementation of felony jury from the offense Fifth Amendment ample of what the by judge on the lesser determination By adding protect against. designed preponderance of the evi standard after-the-fact, the State to the record authority dence. fail to see how this We three times sought justify a sentence any bearing has on the circumstances of per- than the sentence which longer this case. they existed under the facts as missible P.3d at 1140. To resolve whether Mr. 36 imposed. at the time sentence was fairly claim before us was Apprendi That, effect, jeopardy. double violates Court, Supreme presented to the XIV; V, See Const. Amends. U.S. that proceed I must to determine what Wyo. § 11. Const.Art: claim is. effect, a sought In second State Apprendi Mr. Claim B. Lee’s Present apple because it sentencing bite at the the defendant’s sentences failed to that a valid sentence ensure enhanced weapons charges The on two were imposed in the first instance. statutory court, beyond otherwise-applicable ret- by trial the State permitting sentence, sentencing judge, maximum when the roactively justify illegal evidence, a state hate-crimes stat- threw all accordance with “supplemental” with ute, by preponderance a of the evi- the window. found process notions due out by crimes motivated supple- The dence were hearing at which the State 469-71, record, at 120 S.Ct. mented the introduction racial bias. 530 U.S. with evidence, can not be 2348. The United States vague hearsay reversed, than the holding that process “[o]ther the due comport said to

613 conviction, fact that prior fact of a U.S. one argue could penalty beyond Apprendi requires increases the for a crime the date to have by been determined statutory jury maximum must under a prescribed be- yond-a-reasonable-doubt jury, proved beyond proof. to a standard of be submitted a reasonable doubt.” Id. S.Ct. Fairly C. Was Present Claim by recently 2348. As restated the Su- Presented in State Court? Booker, in United States v. Having engaged in this analysis, one U.S. might say point Mr. Lee raised the (other (2005), “[a]ny fact than L.Ed.2d 621 Wyo- sentence of his brief before the conviction) prior necessary which is ming Supreme Court that said: exceeding a sentence the maxi- at which the supple State by mum authorized the facts established record, mented the with the introduction plea guilty jury or a verdict must hearsay evidence, of vague can not be proved be admitted the defendant or said to comport with the due jury beyond a reasonable doubt.” necessary standards to prove a ‘fact’ appeal In his to this Mr. Lee triple which would Mr. Lee’s maximum Apprendi argument states his as follows: See, e.g., exposure. Appren Critical facts must either be Jersey, di v. New [530 466] 120 by proved by admitted the defendant or (U.S.2000) S.Ct. 2348 [147 L.Ed.2d 435] beyond the state a reasonable doubt be- (full process protections due apply with process protections cause due extend regard fact can which a increase only guilt not to determinations of in- beyond sentence the otherwise available to sentencing nocence but also determi- maximum). statutory . ....

nations The date this offense view, Aplee.App. my 29-30. howev- occurred a fact that in- was could have er, Apprendi Mr. Lee’s tenable claim was creased, increase, and in fact did Mr. fairly presented not to the Wyoming Su- sentence, for if the date were de- Yes, his brief Appren- Court. cited prior termined to be to the 1997 amend- application di. And sometimes the of the ment his sentence would be one-third as precedent readily doctrine stated in a is long. in apparent the case at hand. But this is Aplt. Reply Br. at 7. The argument ap- Particularly given not such a case. merit, pears certainly to have enough of Apprendi, recentness Mr. Lee’s brief satisfy requirement granting a needed to court in seeing assist state I importance COA. note the critical of the why applied. Apprendi it Yet the refer- charged date of the offense Count Five. in a ap- ence was buried discussion that If the offense occurred before peared addressing double-jeopardy to be years’ the maximum sentence was five im- Moreover, principles. quoted sentence prisonment; for offenses on or after that nothing specific require- said about years. plea pro- date was 15 Mr. Lee’s imposed by Apprendi jury ments —the specific merely range beyond vided no date but a fact proof finder and a reasonable possible of contrary, dates included a doubt. On the the reference in before 1997. Because the citing Apprendi “vague date of sentence appears “necessary hearsay argument the offense to be a fact evidence” obscured the exceeding by suggesting a sentence the maxi- that it was nature of the by mum authorized the facts than presented established evidence the iden- —rather Booker, by tity plea guilty,” [Mr. Lee’s] of the fact finder or the burden of I would have seen the question And the whether was at stake. persuasion —that “see, all, signal citation in this case we e.g.” point myself. After “e.g.” general point a more suggesting already baffling, having had the benefit specific holding. Apprendi’s than subjected two-year-long barrage to a been Blakely Washing- challenges under requirement for ex- “fairly present” ton, light understood haustion must be (2004), federal collateral and Booker to sensi- approach to L.Ed.2d 403

AEDPA’s proceedings. matters, criminal We of state as well as Apprendi review tize us determina- a state-court do not overturn Mr. Lee having received a better brief other- we would rule merely Indeed, tion because argument on this issue. oral must unrea- The determination be wise. court, Mr. Lee’s counsel admit- before this 2254(d) a states that Section sonable. ted that “at the time that this first came cor- application habeas prisoner’s Court[,] [Wyoming] Supreme through unless the state- granted pus will not be subsequent cases to had “contrary Supreme to” court decision was maybe it unclear to not come down so (which certainly precedent would be Court and unclear unreasonable), “involved an unreasonable it was raised.” I would possibly how precedent, of’ hold that Mr. Lee has not exhausted his on an unreasonable determi- or “was based Apprendi claim in state court because it light nation of the facts evidence fairly presented to the proceeding.” presented in the State Supreme Court. more deferential And we must be even hand, procedural On the other this bar is findings to factual —in far from obvious. Because the determina § 2254 “a determination of proceeding grant tion “does not whether COA made court shall factual issue State require full consideration of the factual or correct.” 28 presumed be to be U.S.C. legal bases addressed in 2254(e). § claim,” Miller-El, 537 U.S. at 123 Likewise, argument an not addressed 1029,1 granted S.Ct. would have a COA on the state court should not be considered claim due-process Mr. Lee’s because both it “fairly presented” have been unless was procedural the merits and the issue of bar appre- the court to fail to unreasonable for debatable, Slack, are at least see 529 U.S. argument ciate that the had been made. 484, 120 game is not a Presenting issues to a court by saying in which appellant can score III. APPEAL DISPOSITION OF THIS just un- enough judge to alert a who had Deciding Mr. Lee had not exhaust- every possible limited speculate time to ed his state-court remedies would not end might issue that be unearthed the brief. necessary the matter. It would then be opin- as its remand to the district court for further indicates, clearly perceive ion did not Mr. First, court proceedings. the district claim that making Apprendi Lee to be whether it is still would need determine I believe to have substantial merit. On possible present Ap- for Mr. Lee to his perplexed by court contrary, not, prendi claim in state court. If only Apprendi. the citation to Yet not claim is deemed to have been exhausted it the court to miss not unreasonable for procedurally it defaulted. Cole- See perhaps contrary to point (assuming, 1,n. fact, Thompson, man v. 735 Lee’s state-court brief actu- Mr. (1991). If ally point), but I 111 S.Ct. 115 L.Ed.2d 640 intended make the

615 court, claim has been defaulted in state claims are not “plainly unexhausted may grant only court relief if the district meritless.” Id. Mr. claim “can prej- plainly court, Mr. Lee demonstrate cause and is not meritless. The district however, miscarriage jus- udice or a fundamental positioned is better than this Gibson, v. 218 F.3d tice.” Thomas court to determine stay-and-abey- whether (internal (10th Cir.2000) case, 1221 quotation appropriate ance is in this marks should be the tribunal to address the mat- ter in the first instance. If, however, possibility there is still a relief, pursue state-court Mr. Lee must

that avenue. that event the district §

court could dismiss Mr. Lee’s Weber,

claims. Rhines v. See 1528, 1532-33, 161 L.Ed.2d (2005). consequence But an adverse approach

of that is that then he would America, UNITED STATES of likely from returning be barred to federal Plaintiff-Appellee, one-year AEDPA’s stat- because § applications. ute of limitations on 2244(d)(1). Although 28 U.S.C. the limi- PATTON, Defendant-Appellant. A. Carl applicant tations is tolled while the court, No. 05-3169. pursues relief see 2244(d)(2), federal-court do proceedings Appeals, United States Court of Rhines, period, not toll the limitations see Tenth Circuit. Thus, applicant’s 125 S.Ct. at 1533. if an claims are dismissed the federal court June (particularly if the proceedings federal months),

have continued for number of well lose forever chance for

federal review of those claims. Id. result,

To avoid such a federal courts on adopted procedure

occasion have

staying abating the habeas claim. Un-

der procedure stays this district court abey- habeas and holds it

ance applicant pursues while the the unex-

hausted claims state court. Id. at 1534. applicant

Once the exhausts state-court

remedies, the district court will lift

stay and applicant allow the to return to

federal court. Id. The

recently approved practice subject-

ed it to strict limitations. Id. at 1535. procedure may only be used “when

the district court determines there was

good petitioner’s cause for the failure to

exhaust his claims first state court” and

Case Details

Case Name: Lee v. Crouse

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jun 13, 2006

Citation: 451 F.3d 598

Docket Number: 04-8116

Court Abbreviation: 10th Cir.