UNITED STATES of America, Plaintiff-Appellee, v. Ismael Holguin HERRERA, Defendant-Appellant.
No. 00-51177
United States Court of Appeals, Fifth Circuit
Nov. 26, 2002
313 F.3d 882
There is Supreme Court precedent. In Ross v. Moffitt, the Court stated that there is no right to counsel for discretionary reviews in state court.8 It noted that the right to appellate counsel is “an adequate opportunity to present his claims fairly in the context of the State‘s appellate process.”9 Moore has never asserted that his counsel was ineffective in presenting his direct appeal, only that he was not notified of the outcome.
This court recently examined the scope of the right to appellate counsel, holding that it does not extend to filing a motion for rehearing following the disposition of defendant‘s case on direct appeal.10 This court emphasized that the motion for rehearing came after the appellate court ruled on the claims, and stated that “[w]hen a state grants a criminal defendant an appeal of right, the Constitution requires only that the defendant‘s claims be ‘once ... presented by a lawyer and passed upon by an appellate court.’ ”11
The constitutionally secured right to counsel ends when the decision by the appellate court is entered. These decisions support the state court‘s denial of habeas and do not demonstrate that its holding was “contrary to, or involved an unreasonable application of, clearly established Federal law,” as AEDPA requires.
Therefore, the decision of the district court is VACATED and REMANDED for consideration in light of AEDPA‘s deferential standard.
George McCall Secrest, Jr. (argued), Bennett & Secrest, Houston, TX, for Defendant-Appellant.
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:
Primarily at issue is the correct standard of review for Ismael Holguin Herr-
I.
In a multi-count indictment against nine defendants, Herrera was charged in three: count 1, violation of
Herrera appealed, claiming insufficient evidence for each conviction; a divided panel of our court affirmed two (counts 1 and 14) but reversed on count 16. United States v. Herrera, 289 F.3d 311 (5th Cir.), vacated pending en banc review, 300 F.3d 530 (5th Cir.2002) (en banc). United States District Judge Adrian Duplantier, sitting by designation, dissented from the reversal. 289 F.3d at 325.
Rehearing en banc was granted, limited to the reversed
II.
The only issue before our en banc court is the sufficiency of the evidence for Herrera‘s conviction for possessing firearms on or about 9 December 1999, while being an “unlawful user” of a controlled substance, in violation of
Herrera moved for a
Following denial of his motion, Herrera presented evidence, including his testifying. At the close of evidence, Herrera‘s JA motion based on the same, earlier asserted grounds was denied.
Post-verdict, Herrera failed to move for JA until long after the seven-day period for filing the motion had run. See
Herrera maintains we should review under the usual standard for sufficiency claims: evidence is sufficient if, “after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt“. United States v. Daniel, 957 F.2d 162, 164 (5th Cir.1992). See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Instead, because Herrera did not seek JA for the issue at hand, our review is far more narrow. Where, as here, a defendant asserts specific grounds for a specific element of a specific count for a Rule 29 motion, he waives all others for that specific count. E.g., United States v. Belardo-Quinones, 71 F.3d 941, 945 (1st Cir.1995); United States v. Dandy, 998 F.2d 1344, 1357 (6th Cir.1993). As noted, Herrera claimed insufficient evidence only concerning his status as an “addict“, not as an “unlawful user“; and he did not claim insufficient evidence concerning whether he was an “unlawful user” on or about the time he possessed the firearms.
Accordingly, “[b]ecause [Herrera] waived any objection to the sufficiency of the evidence [for the points now at issue], our review is limited to determining whether ... the record is devoid of evidence pointing to guilt“. United States v. Delgado, 256 F.3d 264, 274 (5th Cir.2001) (internal quotation marks and citation omitted). See also United States v. Carbajal, 290 F.3d 277, 290 (5th Cir.2002), petition for cert. denied, 537 U.S. 934, 123 S.Ct. 34, 154 L.Ed.2d 235 (2002); Daniel, 957 F.2d at 164.*
Therefore, we review the record only to determine whether it is devoid of evidence that, on or about 9 December 1999, Herrera was an “unlawful user” of a controlled substance while in possession of firearms. Along this line, the Government conceded in its supplemental en banc brief that, for a defendant to be an “unlawful user” for
Pursuant to our record-review, the record is not devoid of evidence that, on or about 9 December 1999, Herrera unlawfully used cocaine while possessing firearms.
III.
For the foregoing reasons, the conviction for violation of
DeMOSS, Circuit Judge, dissenting in an opinion in which JERRY E. SMITH, Circuit Judge, joins:
I am truly amazed at the ingenuity displayed by the en banc majority in fashioning a new rule of criminal procedure, which permits them to dispose of this case without addressing some tough substantive Needless to say, the applicable “devoid of evidence” standard is quite different from, and far more narrow than, review for plain error. Compare Delgado, 256 F.3d at 274, with United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (through plain error review, court has discretion to correct “clear” or “obvious” error that affects substantial rights and seriously affects fairness, integrity, or public reputation of judicial proceedings). See
Simply put, application of this narrow standard is not to avoid issues—far from it. Instead, it is in keeping with well-established rules of criminal procedure that ensure issues are tried in the trial, not the appellate, court.
In an effort to dance around this prior precedent, the majority attempts to frame its new rule in language that limits the conflict: “Where, as here, a defendant asserts specific grounds for a specific element of a specific count for a rule 29 motion, he waives all others for that specific count.” (Emphasis added). Given the level of specificity required, this new rule hopefully will find no application except here in Herrera.
The real problem with the majority‘s new rule is that there is absolutely nothing in
Furthermore, the issue of whether Herrera waived his motion for acquittal, and thus failed to preserve error, was never raised by the government in this case before the trial court or on appeal, neither in its original brief to the panel nor in its petition for en banc reconsideration nor in its supplemental en banc brief. The record is clear that counsel for Herrera did, in fact, make a motion for judgment of acquittal on the basis of insufficiency of the evidence as to each of the counts in which Herrera was charged. Surely if the prosecutors thought this motion did not satisfy the requirements of Rule 29, they would have been screaming and hollering about that deficiency from the very beginning. In United States v. Menesses, 962 F.2d 420 (5th Cir.1992), this court faced a somewhat similar situation in which the government argued, for the first time at oral argument, that because the defendant failed to object to the sufficiency of the evidence at trial, the court should be bound by the stricter standard of review, i.e. plain error. In an opinion written by Judge Reynaldo G. Garza, the court refused to review the evidence under the stricter standard, pointing out that the government referred to the usual standard of review in its brief, and that the government could not, at the time of oral argument, change its position on this issue. Here in Herrera‘s case, we have the additional fact that, in its petition for en banc reconsideration, the government made no mention whatsoever of any deficiencies in Herrera‘s motion for judgment of acquittal or any requirement for reviewing the evidence on the plain error standard. I have great trouble, therefore, understanding why the en banc majority feels compelled sua sponte in this case to raise this issue at en banc oral argument and rely upon
Even more fundamentally, I think the en banc majority errs in making any judgment about the sufficiency of the evidence without first coming to grips with the essential definitional problem that this case raises, i.e., what do the words “unlawful user,” as they appear in
- Is there a statutory definition for the term “unlawful user?”
- If Congress has not statutorily defined the term “unlawful user,” can we determine what Congress intended when it used such words by looking at:
- the statutory context in which Congress used such words;
- the legislative history which proceeded the adoption of such words by Congress;
- the common and ordinary meaning of such words, if any.
- If we are unable to determine the meaning which Congress intended for the words “unlawful user,” should we then hold that the words are constitutionally unenforceable because of vagueness?
- If we can define the term “unlawful user,” is the evidence in this case sufficient to support a determination that Herrera was, in fact, an “unlaw-ful user?”
- If we determine that Herrera was, in fact, an “unlawful user,” does the evidence support a finding that the guns which Herrera possessed were “possessed in or affecting interstate commerce” and if so, when that possession occurred?
- If we determine that the guns were possessed in or affecting commerce, does the evidence establish that Herrera‘s status, as an “unlawful user” and his “possession of guns in or affecting commerce,” occurred within reasonable proximity of each other, around the date of December 9, 1999?
Obviously, I would put the burden of proof and persuasion on the government to produce sufficient evidence to support a jury finding beyond a reasonable doubt as to the answers to questions 4, 5, and 6 above.
In addressing the definitional problems raised by this case, the district court instructed the jury as follows:
An addict is defined as any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to lost the power of self control with reference to his addiction.
The term “user” is defined in accordance with its common and ordinary meaning.
The district court‘s definition of “an addict” is a verbatim use of the definition set forth
During the time that Herrera‘s case was pending in the district court and coming up to our court on appeal, a panel of our court was deciding the case of United States v. Emerson, 270 F.3d 203 (5th Cir.2001) which held that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded in Miller.” Id. at 260.
Defense counsel for Herrera made a cryptic motion at the conclusion of the evidence in Herrera‘s case that he was entitled to Second Amendment protections and count 16 violated those protections. While Herrera‘s case was pending on our appellate docket, the Supreme Court of United States denied certiorari in Emerson, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002)(mem.), and consequently the panel decision in Emerson remains as the binding law in the Fifth Circuit. Emerson clearly recognizes that the Second Amendment right to keep and bear arms “does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” Id. at 261.
In light of Emerson, I would urge that Second Amendment rights can be abridged only if the restriction survives strict scrutiny. To the best of my research, Herrera‘s case presents the first occasion on which our court has been asked to evaluate the appropriateness of
If some other statute of Congress purported to take away or restrict (1) “the right of the people peaceably to assemble and to petition the government for redress of grievances” under the First Amendment, or (2) “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” under the Fourth Amendment, or (3) the right of any person to be free from being “compelled in any criminal case to be a witness against himself” under the Fifth Amendment, or (4) the right of any person “to have the assistance of counsel for his defense” in any criminal case under the Sixth Amendment because, in each event, such person was “an unlawful user of or addicted to a controlled substance,” then surely this court would use the test of strict scrutiny to determine the validity of that statutory restriction.
The precise question raised by Herrera‘s case is whether
Given that there are more than 150 substances in the list of controlled substances in the Controlled Substances Act (“CSA“) and that each of these substances has widely varying and different effects on an individual, it would seem elementary to me that Congress must specify the particular substances whose use may cause particular damages and injuries to an individual sufficient to deprive that individual of his Constitutional Rights under the Second Amendment. Likewise, to have a narrowly tailored restriction on Second Amendment rights, Congress must specify the frequency of use of a controlled substance and the time period during which such a use will be deemed to have a continuing effect on an individual. Otherwise, the term “user” is so open-ended that the ordinary citizen cannot know when his conduct in using a controlled substance may result in forfeiture of his rights under the Second Amendment. The government recognizes these inadequacies when it concedes in its en banc brief that in order for a defendant to be an “unlawful user,” his “drug use would have to be with regularity and over an extended period of time;” and further stipulated at en banc oral argument “we certainly wouldn‘t charge one time use, it would have to be over a period of time.” But, under our constitutional concepts of separation of powers, only Congress can define what constitutes “regular use” and what constitutes “an extended period of time“; and neither the prosecutor nor the jury should be permitted to determine those matters on an ad hoc case by case basis.
Now, some final comments about the statutory interpretation task which we face in this case. The exact text of the statute
(g) It shall be unlawful for any person—
...
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
...
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition;
The cross-references to
One of the first interpretative decisions which must be made in understanding
Webster‘s defines the word “or,” in relevant part as, “used as a function word to indicate (1) an alternative between different or unlike things, states or actions ... (3) the synonymous, equivalent, or substitutive character of two words or phrases.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1585 (1971). Similarly, Black‘s defines the word “or” as “[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things. It is also used to clarify what has already been said, and in such cases, means ‘in other words,’ ‘to-wit,’ or ‘that is to say.‘” BLACK‘S LAW DICTIONARY 987 (5th ed.1979). So it would appear that the word “or” can be either a disjunctive conjunction or a conjunction indicating the use of synonymous term.1 Though it may be argued that the disjunctive is intuitively the first choice, this is not always so. The Supreme Court has adopted both uses of the word “or” depending on the circumstances and surrounding text. Compare FCC v. Pacifica Foundation, 438 U.S. 726, 739-40, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (adopting disjunctive use of the word), and Flora v. United States, 362 U.S. 145, 149, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) (same), with Cleveland v. United States, 531 U.S. 12, 26, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (re-affirming their decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987)), and Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 255, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (adopting the synonymous use definition of “or“), and United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing United States v. Young, 470 U.S. 1, 15, n. 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) to support reading Fed.R.Crim.P. 52(b)‘s “error or defect” language as really creating
Applying these teachings from the Supreme Court to the circumstances before us here in Herrera, I conclude that the most reasonable interpretation to give to the statutory language before us is that the word “or” has not been used by Congress in a disjunctive sense, but has been used by Congress synonymously to reflect that the two terms are really just part and parcel of each other.
Since Congress defined the term “addicted to” but did not define the term “unlawful user” in any way, shape or form, I would conclude that what the government must prove beyond a reasonable doubt is facts sufficient to satisfy the statutory definition of “addicted to;” and, since the government has stipulated that it did not prove facts sufficient in this case to support a finding of “addicted to,” we should REVERSE and RENDER THE CONVICTION under count 16.
For all of the foregoing reasons, I respectfully DISSENT from the decision of the en banc majority.
UNITED STATES of America, Plaintiff-Appellee, v. Wesley Joseph SLANINA, also known as Wesley J. Slanina, Defendant-Appellant.
No. 00-20926.
United States Court of Appeals, Fifth Circuit.
Nov. 27, 2002.
Kathlyn Giannaula Snyder (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff--Appellee.
Roland E. Dahlin, II, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def., Renata Ann Gowie, Asst. U.S. Atty., Houston, TX, for Defendant-Appellant.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, SMITH and BENAVIDES, Circuit Judges.