Manuel Lee Runnels v. Norman B. Hess, Warden, and Jan Eric Cartwright, Attorney General of Oklahoma
713 F.2d 596
10th Cir.
1983
Check Treatment

*1 LOGAN, Before BARRETT and Circuit KERR, Judges, Judge District United States District Court for the District Wyoming, sitting by designation. ORDER ON REMAND - BARRETT, Judge.

This case came before this court on peal from the district court’s corpus Runnels, writ of habeas an Okla- inmate, homa state in 1981. See Runnels v. (10th Cir.1981). Run- nels, rape who been convicted for years imprisonment, sentenced ex- hausted his state remedies without avail. writ, The federal granted district court finding abridged that the prosecutor Run- nels’s Fifth Amendment privilege against self-incrimination commenting Run- nell’s failure to testify.1 appeal, On (Judges of this court’s panel, Lo- Kerr) gan and concurred in the trial court’s finding that Runnels’s Fifth Amendment Appeals 1. The Oklahoma Court Criminal relief based defense counsel’s failure previously significant portion preserve by timely objecting noted that “a error prosecutor’s argument, closing moving when taken comments mis- whole, improperly emphasized trial, stating procedure only the defend that such was “the State, testify.” remedy ant’s failure to available since admonishment (Okla.Cr.App.), P.2d cert. compound the error.” Hess, supra, (1977) 98 S.Ct. Runnels P.2d (footnote omitted). The Oklahoma does have a that Oklahoma noted contemporaneous objec- exception error Criminal nevertheless denied Runnels

597 1558, (1982), 71 L.Ed.2d 783 and virtue of 102 S.Ct. abridged by privilege 152, 456 102 Frady, Barrett was v. U.S. Judge United States remarks. prosecutor’s 1584, (1982), remarks in relation 71 L.Ed.2d 816 prosecutor’s view that S.Ct. of the conviction Runnels has established or dem- prosecutor’s to whether described the al relative to credibility prejudice the cause and actual the victim’s onstrated unchallenged attack leged necessary pursuant sexual went for habeas relief prongs majori A was truthful. testimony juris- that her retained 28 2254.2 We U.S.C.A. § Kerr) Barrett and (Judges ty panel issues in the case. diction on all other of the district court that the order directed on Partial “Findings The district court’s for fur and the case remanded be vacated 26, 1983, state, in May Remand” entered v. Wainwright proceedings, relying ther part: 2497, 72, 97 53 L.Ed.2d Sykes, 433 U.S. S.Ct. That, but specifically as intimated that Run- held (1977). 15, June 1982 addi- found in this court’s timely objection to make a nels’s failure has not made the findings, plaintiff tional remarks, in with keeping prosecutor’s showing of “cause” or “actual requisite objection contemporaneous Oklahoma’s corpus which habeas re- prejudice” relief rule, federal habeas precluded Engle under v. Isaac may granted lief noncompli- could be shown for unless cause v. Ref- and United States to the defendant and that ance is also made to Davis v. United erence were of the view therefrom. We resulted 1577, States, 411 S.Ct. [93 No had been demonstrated. (1973); Francis v. Hender- L.Ed.2d 216] Judge cause, however, had advanced. 1708, son, 425 U.S. 536 [96 issue, on this stated Logan, in dissent (1976); Wainwright v. L.Ed.2d 149] with conjunction read in must be Sykes 2497, Sykes, 433 U.S. [97 443, Mississippi, 379 85 S.Ct. Henry v. (1972), Tyler Phelps, L.Ed.2d 594] Henry In the 564, (5th Cir.1981). 643 F.2d 1095 held that de- the Court findings set out above demonstrate do not proceedings faults in state criminal entering Judg- erred in this court of federal constitutional prevent vindication petition for writ of granting ment rule serves a rights unless the corpus. rea- Judge Logan legitimate state interest. II, 4], We [R., Supp. p. agree. Vol. to deter- applied must be Henry soned that district matter was before the When this interest legitimate state mine whether remand, Runnels’s state criminal court on prejudice test the cause and existed before Accordingly, was deceased. bar, trial counsel because, in the case applied counsel was not available Runnels’s trial prosecutor’s the defense to the objection by be, facts, if indicat- any present in a mistrial. remarks would have resulted his failure to reasonable cause for ing a the dis- would have affirmed Judge Logan closing argument, the writ. trict court’s contemporane- by Oklahoma’s as from this court the third remand On rule. ous court, dis- the district directed import of the analysis The district court’s on the specific findings enter trict court to this case is well deci- of Isaac effect, Supreme of the any, if Find- 107, in the court’s “Additional articulated Engle v. sions entitled Board, exception, 40 L.Ed.2d rule. 653 F.2d at 1363. The tion Rutherford, (1974); Key reason, applied was not for whatever not, Cir.1981). (10th Runnels’s case. state courts in The district court did Oklahoma course, the “cause” and the benefit of have changes a case is on law while 2. Where the requirements prongs “prejudice” articulated appellate appeal, general rule is that Frady when it initially heard this apply at the time court must the law effect granted writ. case and injus- appeal unless manifest of its decision on Bradley v. Richmond School tice would occur. entered ings recognition on Partial Remand” June appropriate distinction alia: inter between the on a burden criminal defend- ant upon direct opposed review upon this court’s Based attack, subsequent collateral require a Court of the opinions clear by petitioner that his is a Frady, supra, in Isaac and United States *3 fundamentally unjust to incarceration as a subsequent this court’s Febru- issued Order, II, result a Tyler and and of of of ary Opinion law, justice appears peti- it that under current in order satisfy to the “cause” tioner herein not have satisfied the may element of The Sykes. showing made Sykes. “cause” of petitioner, herein by light viewed in the decisions, of those recent may em- not meet possibility suggested by This the phasis upon principles in of those criteria. This placed, may be true even finality of state court comity though and crimi- the unavailability testimony of judgments; upon strong nal the indica- issue was “cause” due to the interven- tion in Isaac and that ing of petitioner’s death trial counsel. Court of the not United States would I, pp. [R., Vol. 5-7]. finding a of accept adequate as “cause” We agree with the district analy- court’s wholly based upon circumstantial and Isaac, supra, sis. appeal involved an from factors, here; speculative as is the case the Court of Appeals’ reversal of federal upon clear in Frady distinction drawn district court orders denying Ohio state proof between standards of applicable prisoners corpus habeas relief pur- upon upon direct subsequent Ohio, suant to 28 U.S.C. 2254. like Okla- § attack; upon by collateral the vacation homa, a contemporaneous has of Appeals Court for the Fifth Circuit rule. In Isaac the issue by arose virtue of I, of Tyler portions its in opinion of which attorneys’ defense failure to to heavily upon by been relied court O’Connor, instructions. Justice writing decision; in reaching its upon held, inter alia: II, in holding Tyler appears which to re- writ, of a Issuance final- [federal] quire unequivocal a clear and showing of ly, exacts an extra charge by undercut- “cause”. ting the ability pro- State’s to enforce its of prosecutor statements here- cedural rules. These sup- considerations in, argument, in his closing peti- violated ported that, Sykes ruling our a when tioner’s constitutional rights. prose- litigation default bars state of cutor’s indirect on petitioner’s comments claim, a constitutional prisoner state failure to testify his own behalf were may not obtain federal habeas relief ab- as clearly improper, has recognized been sent a of cause preju- and actual by the Appeals Court of Criminal of dice. State of Oklahoma and of by Respondents that urge we should limit Circuit, for the Tenth in remand- Sykes to cases in which the constitutional ing this case to the undersigned for an error not did affect the truthfinding evidentiary hearing on the “cause” issue. function of the trial .... It is equally true, believe, however, We do not however, the constitutional principles Sykes of lend rights Sykes, themselves Tyler all were this limitation. The admittedly costs outlined above violated and that ob- had an jection depend do type of claim contemporaneously made trial raised any prisoner. While the nature their cases a new trial undoubtedly may would claim granted. have been constitutional affect The teaching prejudice, of Isaac and cause and actual calculation plied petitioner’s case, it not alter the appear does need make action, that in a reaffirm, federal habeas threshold We there- showing. comity fore, and finality, and the prisoner bringing a consti- prejudice per amounts to charged crime to the federal courthouse claim tutional circum- se, regardless particular default a state after prece- case. stances of the individual Our cause and demonstrate dents, however, hold otherwise. Con- relief. obtaining before the Constitution We fendants attorney. conceivable counsel will the basis of a constitutional able, sjc have other defense long [*] It does not constitutional recognize a fair trial and recognized, [*] guarantees insure that defense [*] counsel have and raise claim. Where however, that claim is criminal de- a competent [*] avail- every ?{e per- (footnote trary shoulder merely error of constitutional dimensions. advantage, worked possibility that the errors at his trial omitted). to his actual and substantial the burden of Frady’s infecting prejudice, 102 S.Ct. at 1595-96 suggestion, he must his entire trial with but showing, not created they dis- *4 claim, the de- litigated ceived and “prej- of the “cause” and significance finality counsel comity mands of was made clear the Isaac prongs udice” of unawareness labeling alleged against prisoner’s view that a state fed- majority’s for a objection as cause corpus challenge requires great- eral default. required of than that showing prejudice er 129, 134, plain appeal: error on direct pp. 102 S.Ct. at to establish pp. 456 at omitted). (footnote that we finally, urge Respondents, the cause- replace supplement should or supra, Justice Frady, In v. United States plain-error standard with a and-prejudice again O’Connor, majority, for the writing rejected argument this inquiry. We object to failure to dealing with defendant’s a federal see pressed by prisoner, when trial, rejected the con- instructions at p. v. Frady, post of United States error” standard “plain [456 U.S.] tention that 1584], and find it no p. S.Ct. 52(b), apply should Rule Fed.R.Crim.P. [102 here. The federal compelling actual more prejudice” of the “cause and lieu for direct apply plain-error v. courts a rule Wainwright standard enunciated that, Fed.Rule held under review of federal convictions. Sykes, standard, 52(b). relief Federal habeas chal- to obtain collateral this Crim.Proc. convictions, however, contempo- errors to which no to state en- lenges based on trial made, special was a convicted objection finality problems raneous greater tail (1) cause excus- defendant must show both: We remain convinced comity concerns. default; (2) actual ha- ing his justifying the burden which the errors of resulting “greater from prejudice prisoners relief for state beas meet either the he Failure to complains. to establish showing required than the the standard or prejudice cause Henderson appeal.” error on direct plain The Court fo- requires Kibbe, 145,154 a denial of relief. S.Ct. v. [97 re- on the character of the (1977); cused United 52 L.Ed.2d 203] relief: trigger collateral quired at 166 at Frady, post, S.Ct. States [102 trial court’s erro- According 1593]. contempo- no assertion,

neous instructions which respondents’ Contrary [to relieved lodged] was objection moreover, raneous is un- a standard plain-error of proving of the burden jus- the Government miscarriages to correct necessary mur- malice, the crime of an element of prej- The terms “cause” and “actual tice. that, doubt, der, so a reasonable take beyond concepts; they rigid are not udice” it, his conviction would have of com- Frady principles meaning their from must be overturned. above. finality discussed ity and eases those prej- propriate actual stated, claim of Frady’s So of a fundamental- to the yield imperative if an error in the validity has udice we are unjust incarceration. Since ly element of the concerning instructions of a that victims 54 L.Ed.2d surely confident This justice will meet the meets the actual prejudice requirement of standard, see Wain- cause-and-prejudice Frady. Isaac and The most effective dem- U.S. at wright Sykes, of prejudice [97 onstration would a showing id, at 94-97 at 2508]; at 2510- that a petitioner [97 was of a convicted crime J., (STEVENS, concurring), we de- can conclusively he did 11] show he not vague the more adopt cline to inquiry commit. In the instant de- “plain the words error.” suggested by fense objected, petitioner counsel trial; have received a new he is 134-35, instead pp. serving long prison term. Short (footnote omitted). innocence, presents has Runnels failed meet the Petitioner most conclusive demonstration of under Isaac and Frady. burden possible. He not demonstrated cause for failure has lodge contemporaneous petitioner Under at the prosecutor’s remarks Oklahoma state must also establish cause for lawyer’s his trial, has not court and he established that failure to make a contemporaneous objec- remarks created tion. But the instant case demonstrates his trial prejudice, infecting entire with er- in some situations it is impossible to ror of such dimensions as to constitutional conclusively prove whether or his incarceration fundamentally render un- was cause. Here the defense counsel *5 just. the died after case was tried and before the habeas action was initiated. But is not agree specific

We with the district court’s all we have. The record indicates that the 26, Thus, findings of we May must counsel 74 years defense old and in reverse the district court’s of Run- poor trial; addition, health the time of petition nels’s for habeas corpus. writ he hearing. Thus, was hard of circumstan- is quashed. tial evidence that may indicates he not have LOGAN, Judge, dissenting: remarks, heard the prejudicial either because of hearing problem his or his respect, With I must dissent. health, state of questioned and he cannot be In case a habeas such as this the to determine the reason for his failure to Supreme requires petitioner, Court that the object. While the death of the defense relief, to be entitled to show cause for the counsel prior proceeding to a habeas does procedural default and actual re not automatically satisfy require- the cause Engle from the sulting default. ments, interceding death should not 107, 1558, preclude finding of cause. (1982); Cf. United States v. Did Isaac and if intend that cause 1584, 816 (1982) L.Ed.2d by could not established strong- evidence (collateral conviction). attack on federal er than have here that relief must be appeal agreed earlier this Court great denied no matter prej- how the actual demonstrated. udice the petitioner is? I do not think (10th F.2d the Supreme Court Cir.1981). intended such result. Actual prejudice had been dem If the victim of this crime confessed that onstrated because Oklahoma Court of the crime was never or Criminal committed on direct conclud ed was conclusive proof petitioner’s that the inno- prose statements made cence, help cutor were it would not meet reversible error. If defense cause objected counsel had of Isaac. Yet at least timely prosecu type in this tor’s improper comments, situation the contemplated the Oklahoma court would have ordered a trial. habeas relief permit- new Run would be State, nels (Okla.Cr.App.), 562 P.2d ted. The majority opinion states, in Isaac rt. “The prejudice’ terms ‘cause’ and ‘actual ce rigid concepts are not .... In appropriate

cases those im yield to the

perative unjust of a fundamentally incar

ceration .... are confident that vic [W]e jus

tims of a fundamental

tice will meet the cause-and-prejudice stan 135,102

dard.” 456 I S.Ct. at 1575.

think the saying Court was if the

petitioner can establish a fundamental mis

carriage justice, he is entitled to relief

regardless of his ability conclusively es

tablish the cause for his attorney’s failure.

In the instant case there was clear error of that would type petitioner entitle

a new trial had the defense counsel made

proper objection, the counsel is deceased

and can tell why never us he failed to make objection, and the circumstantial evi supports

dence the inference that counsel

may not have prejudicial heard the com

ments by prosecutor. I would find that requirement cause enunciated in Isaac

has been met. I Additionally, as stated in dissent,

my earlier I would find that if it is

presumed or inferred that the defense coun

sel intentionally failed to pros

ecutor’s remarks on the petitioner’s failure stand,

to take the in the circumstances of lawyer did not meet

standards competence we have Dyer v. Crisp, (10th Cir.), 945, 100

cert.

L.Ed.2d 779 Arnold, Tulsa,

Earl Okl., W. plaintiff- appellant. Imperato, Admin., Gabriel L. Social Sec. TILLERY, Plaintiff-Appellant,

Calvin C. Baltimore, (Stuart Schiffer, Md. E. Acting Gen., Asst. Atty. D.C., Washington, Frank Keating, Tulsa, Atty., Okl., Frank Y. SCHWEIKER, Jr., Secretary, Richard S. Smith, III, Regional Atty., Dept, of Health Department of Health and Human Services, Dallas, Tex., and Human with him Services, Defendant-Appellee. brief), for defendant-appellee. No. 81-2044. United States Court of Appeals, SETH, Before Judge, Chief and McWIL- Tenth Circuit. SEYMOUR, LIAMS and Judges. Circuit

Aug.

McWILLIAMS, Judge. This is a security social disability insur- ance case. Pursuant Security Social