*1 tek, safety inspector, the Bureau’s told

Schwisow, Supervisory Construction In- COKELEY, Appellant, Dickie spector, night compacted crew had that the claim that he did not before. Schwisow’s LOCKHART, Director, A.L. night compacting believe that would occur Corrections, Department of that, testimony belies his own Schwi- Appellee. words, night compacting being sow’s “was No. 90-2295. knowledge.” discrepan- done our This Appeals, United States Court of startling cy particularly is when it is re- Eighth Circuit. aspects of their called that other Third, implausible. the Bureau were May Submitted 1991. deeper also aware that the excavation was Decided Dec. 1991. necessary, supported by than an unrein- Rehearing Rehearing En Banc lining, properly “chipped-off,” forced Denied Feb. 1992. sloped governing in excess of the stan- dards, prone sloughing, and in need

compacting. majority ignores

facts to conclude that Sintek’s and Schwi- testimony justify

sow’s of non-

negligence. Because the Bureau was facts, negli-

aware of these the Bureau was

gent rectifying for not these unsafe condi-

tions, banning compacting or at least until working

safe conditions were established.2

Conclusion

Nebraska law burdened the Bureau with duty safety to ensure the of its contrac-

tor’s workers. This is not burden evaluat- liability

ed under a strict standard. The despite

law understands that numerous

safety precautions, accidents still occur.

Here, however, the Bureau knew that the

night compacted crew before and that dangerous

the excavation was for the rea-

sons stated above. The Bureau’s defense anticipate night

that it did not compacting simply unacceptable when the Bureau’s Supervisory Inspector

own Construction night compacting being

testified that “was knowledge.”

done our For this rea-

son, original panel and those stated

opinion, respectfully I dissent. Although majority protected by does not reach the dis- the Bureau's conduct here was not cretionary exception exception. function of the Federal Employers this See Murdock v. Ins. Act, 2680(a) (1988), Wausau, (8th Cir.1990) Tort Claims 28 U.S.C. § I of vacated, my agreement reh’g granted restate January with the district court that

A commits if he or deviate sexual in sexual intercourse person: with compulsion;.... By forcible trial, At the victim testified engage in both oral sex had forced her Cokeley, testifying on his and intercourse. behalf, contended that he and the vic- own engage in sexual intercourse. tim did not conceded that he the victim He however, sex; engage he contended in oral Rock, Ark., for Carter, Little R. Daniel was consensual. act appellant. The (Ron Rock, Reeves, Little W. Oían judge trial to instruct prompted the Fields, brief), appellee. for on the activity,1 as rape by deviate well jury on intercourse, despite the fact rape by sexual GIBSON, Judge, Circuit JOHN Before R. charging document which that the Judge, BRIGHT, Senior Circuit proceeded to trial State BOWMAN, Judge. Circuit intercourse. with jury specifically instructed judge trial BRIGHT, Judge. Circuit Senior guilty it found that to return a verdict if established State appeals the district Dickie engage in sexual forced victim to either peti- 28 U.S.C. court’s denial his § In or deviate sexual corpus. Cokeley for writ of habeas tion guilty, general returning a guilty and sen- found contends specify not two jury did not he was for which for a crime tenced rape it found commission of means of grant charged. We reverse In accordance Cokeley had committed. condition that subject to the the writ verdict, sen- trial guilty a new trial within State conduct forty-year prison term. Cokeley to a tenced period. reasonable to the Arkansas Su- appeal On direct Court, that the Cokeley contended preme I. BACKGROUND have instructed should not judge trial De- the Arkansas Cokeley, an inmate activity because the by deviate was convicted of Corrections partment him State had giving rise The events rape. the crime Thus, according to intercourse. July this conviction occurred subsequent general verdict Cokeley, the Cokeley fled County, Arkansas. in Miller a crime a conviction for constituted border, but was across the Arkansas-Texas he was Boston, police in New apprehended local The Arkansas proper Texas, him to the returned who upheld appeal and Cokeley’s contentions on subsequently in Arkansas. authorities Cokeley, specifi- the conviction. State charged Cokeley information denied, 479 U.S. unlawfully and S.W.2d having “wilfully, cally with in sexual intercourse feloniously engage[d] Arkan held that the specifically of The court compulsion” violation ... single crimi constituted 41-1803(l)(a) sas (Supp.1985) Ark.Stat.Ann. § means of commission nal Ann. 5-14- offense Ark.Code (since codified that the instructions concluded (1987)). That statute reads: 103(a)(1) (A) slight, of the penetration, statute, however 1. Under the relevant penis person by of one ... mouth activity” any act of means "Deviate sexual another.... involving: gratification 5-14-101(l)(A) §Ann. Ark.Code language meaningful opportunity to defend.” comported with Elliott, reaching In e.g., Hovey proper. thus were statute and however, expressly 841, 844-45, the court holding, its Oliver, previous (1897)); see also In re overruled *3 Clayborn v. rape statute 499, 507, (1948); Arkansas 273, 68 92 L.Ed. 682 S.Ct. (1983), 533, 433 647 S.W.2d 278 Arkansas, 196, 201, 68 v. Cole 333 U.S. created two it held that the statute where 517, (1948). 514, S.Ct. 92 L.Ed. 644 offenses, each of which criminal distinct charged separately. due component This fundamental sixth amend process, guaranteed under the later de- Court ment, incorporated is the fourteenth rehearing. petition for nied abridged by the amendment and cannot be petition for Cokeley subsequently filed a Morris, states. Hulstine v. F.2d 861 819 relief the state court post-conviction denied, 1068, (8th Cir.1987), cert. exhausting Cokeley’s avail- 484 U.S. rejected, thus (1988); 1034, remedies. then filed able state 98 L.Ed.2d 998 108 S.Ct. relief, petition seeking pur- Parratt, 1041, habeas 1045 Goodloe v. 605 F.2d 2254, in the District Arkansas, suant to 28 U.S.C. v. (8th Cir.1979); § Cole 333 U.S. District of Arkansas. for the Eastern In re 196, 514, (1948); 92 L.Ed. 644 68 S.Ct. argu- Cokeley principally reasserted the Oliver, 257, 499, 68 92 L.Ed. 333 U.S. on an un- ments Jonge Oregon, De v. (1948); 299 682 U.S. charged offense which the Arkansas Su- 259, 353, 362, 255, 81 L.Ed. 278 57 S.Ct. appeal. on direct preme Court similarly of Arkansas The state court, stating that it was bound The district guaran such a accords criminal defendants state court’s by the constitution, expressly tee under its own as a criminal offense rape statute the funda providing criminal defendants commission, possible means of with two nature right “informed of the mental to be Cokeley’s petition. appeal This fol- denied against them. and cause of the accusation” lowed. Const, 2, art. requirement implemented II. DISCUSSION “is The notice primarily charging papers which contain ap- us on issue which concerns fairly of the offense so as to the elements that his fourteenth is claim peal charge against inform a defendant of process and sixth amend- amendment due Goodloe, F.2d he must defend.” 605 rights were violated because ment (citations omitted). Pro The Due at 1045 he was not of a crime for which convicted require states cess Clause does that a conviction charged.2 “It is axiomatic drafting charging papers to observe the charge not made ... constitutes upon a requirements of the Fifth Amend stricter Virgi- v. Jackson process.” of due denial apply in fed Clause which ment Indictment 2781, 2786, nia, 307, 314, 99 S.Ct. 443 U.S. Indeed, stated that the eral cases. we have Ar- Cole v. (1979) (citing L.Ed.2d 560 61 “pri sufficiency charging of a document 201, 514, 517, kansas, 196, 68 S.Ct. 333 U.S. Id. question of state law.” marily a Georgia, Presnell v. (1948); L.Ed. 644 92 omitted); Wilkerson v. (citations n. 12 1045 235, 14, 58 L.Ed.2d 207 99 S.Ct. 439 U.S. Cir.1986), 161, (8th Wyrick, 806 F.2d 164 Alabama, also Thornhill see (1978)); denied, 481 U.S. cert. 107 S.Ct. 60 S.Ct. 310 U.S. However, the notice no more than (1940). “Th[is] standard[] comport must with the provided a state premise that has never a broader reflect[s] a fair trial process guarantee system: in our constitutional been doubted Id. Alexander v. prisoners. state incur the loss of liber- person cannot that a Louisiana, 625, 633, 92 S.Ct. 405 U.S. notice and a offense without ty for an reversing provide any basis for appealed district court’s failed to has also on these issues. court’s determinations procedurally defaulted various district that he Thus, reject these claims. challenges has to his conviction. other

919 any sig- accorded substantive (1972)). is not to be viola L.Ed.2d nificance. arising from to a fair trial right of a tions cogni are notice and reasonable of fair

lack face, holding, court’s on its corpus proceedings. in habeas zable appeal to resolve issue on appear would (8th Hutto, 474 F.2d 22 (citing Ridgeway v. federal courts in the favor because Cir.1973); Morford, Blake apply the considering habeas must matters denied, Cir.1977), interpretation of state law. state court’s (1978)). Goode, 78, 84, Wainwright v. E.g., L.Ed.2d judge that the trial Cokeley asserts curiam). Although interpretive (per returned a jury, instructed this court gloss on bind verdict, charge not included *4 guilty construction, federal statutory a matter of prose he was information under the to the similarly as courts are not bound by the State The information cuted. construction. effect of that constitutional having Cokeley solely with “wilful charged Hunter, 459 U.S. E.g., Missouri in feloniously engage[d] unlawfully and ly, compul by forcible ... intercourse sexual of ramifications constitutional The hand, court, the other trial on sion.” of the interpretation court’s the of to return a verdict the instructed this rape arise because Arkansas statute “engaged if it found that guilty and, directly conflicts with interpretation deviate sexual activi intercourse or sexual the Arkansas indeed, expressly overrules (emphasis compulsion.” ty ... rape Supreme Court’s added). State, Clayborn v. statute in 647 S.W.2d again contends that appeal, Cokeley, on by rape and by intercourse sexual rape defendant was the In Claybom, and activity are two distinct sexual rape by deviate specifically by information crimes which separate no mention activity, with deviate sexual particularity. individually and with rape by sexual intercourse. of made hand, the State, contends that other on the inadequate prove at trial was criminal of- amply statute creates rape activity, but rape deviate of means commis- possible rape by with two guilt fense for finding of supported a of which of The determination sion. the evi- light In sexual intercourse. of the Arkansas interpretations in the judge, the trial presented, dence Cokeley’scase is applies to case, statute instructed the Cokeley’s claim. validity of the defen- critical over of commission both means of Arkan- Thus, discussion detailed a more the appeal, On direct objections. dant’s rape statute construing the case law the sas overturned Supreme Court Arkansas necessary to our decision. the the resulting ground crime, of a had been convicted defendant Su- the Arkansas Cokeley v. In for which rape by sexual the two-crime Court, rejecting preme doing, the In so had not been and rape statute interpretation held that expressly con- proffered instead the adopting offenses, separate distinct stated two statute, stated that of the struction proof. differing elements involving just “provides rape statute Arkansas court, later, years Just three different with two offense “almost acknowledging that it faced 705 S.W.2d commission.” [means] Claybom,” had in question court, same [it] the elements According to the interpre- concluded that are S.W.2d at the statute rape under crime of was Claybom rape statute in tation compulsion.” act “the need 426. We “wrong.” Id. 705 S.W.2d at form disjunctive Thus, the statute’s proper inter- position no (“sex- take of commission delineating the means In- rape statute. pretation activity”) or deviate ual deed, scope resolution of that matter lies distinct charges and nature of the ly province state court within proceed. which the State intended to It is accept the decision of the state true that in the proceed- context of state purposes, only signifi court. For our ings, process requirements may be “[d]ue arising conflicting cant issue from the in if satisfied a defendant receives actual no- terpretations is that the two-offense inter him, charges against tice of the even if the pretation Claybom set out in was control indictment or information is deficient.” time ling precedent at the commit Morris, Hulstine v. 819 F.2d at 864 throughout period ted the crime and White, Franklin v. In was tried and convicted. other Cir.1986)(per curiam)); see also Goodloe v. words, prevailing Arkansas under case law Parratt, (notice 605 F.2d at 1045 n. 12& during proceed time of the events and state criminal defendants need not meet ings question, rape by sexual intercourse stricter Fifth Amendment Indictment deviate sexual were requirements comport Clause with due crimes; separate two distinct and Here, process). the State asserts that charging being sup of one insufficient to Cokeley’s knowledge that the victim would port conviction for the other. under testify to the occurrence of both sexual existed, Cokeley the law as it then provided intercourse and oral sex *5 sufficient separate convicted of a distinct and crime notice proceed that the State would charged, patent for which he was not a theory of both sexual intercourse and devi- process rights. denial of due activity. disagree. ate sexual We 307, 314, Virginia, Jackson v. 443 U.S. 99 2781, 2786, (1979); 61 L.Ed.2d S.Ct. 560 It is not prosecuting uncommon that a Arkansas, 196, 201, 333 U.S. Cole 68 authority charges pro chooses to file (1948); 92 L.Ed. 644 Thorn only ceed on possible a subset of all of the Alabama, 88, hill v. 60 S.Ct. possesses claims of which it evidence. To accept position the that a criminal defen dant has received notice reasonable language in State directs us to Coke- proceed against state will him on an ley might indicate that the which court had crime, uncharged merely by the fact Claybom interpre two-crime prior knowledge in he has Cokeley. pos tation to its In that the state is in deed, the Cokeley court stated our session of and intends to evidence “[i]n [regarding] recent most decision this stat acts, of such severely other criminal would ute, clearly rejected the in rationale integrity undermine the of the fair notice Clayborn.” 705 at 426. S.W.2d How requirements which are one of the “most ever, referred, the case to which the court ingredients process.” basic of due Good State, 697 Wood 287 S.W.2d loe, present case, 605 F.2d at 1045.4 In the (1985), nearly 884 was not decided until Cokeley formulated in response his defense conviction, three months after formally charge to the State’s purposes bearing and thus for our has no intercourse, by sexual responding with a on the issue now before us.3 complete charge. denial of the He did not deny engaged that he and the in

The State also contends that even if the victim oral sex, issue, respect, formally information was deficient in some a matter not al though had sufficient notice of the full testify activity he did that this state, 3. The court in Wood held that where the 4. The evidence of oral sex would be relevant in confession, relating sequence leading on the basis of the defendant’s of events to the charges rape by him with sexual commission of the crime and also but defendant later testifies at trial that he would be admissible as evidence of other acts or motive, intent, rape only by activity, wrongs prove committed deviate sexual absence of mis- take, 404(b). identity, the state amend the information to include etc. Ark.R.Evid. The ad- missibility ordinarily deviate sexual Such an amend- of such evidence does not court, proper, according ment was be- constitute notice to the defendant that he is change degree being prosecuted it does not or cause nature for these other acts in addition the crime. 697 S.W.2d at 886. to those right retry peti- ject to might be notice Prior consensual. reasonable time. within a tioner by deviate subject to afforded Coke- have activity would BOWMAN, dissenting. Judge, Circuit deni- entering complete a option of ley the 41-1803(l)(a) State putting the testify and al, declining to Stat.Ann. offense, regarding the all matters establishes a proof (Supp.1985) See, e.g., In right. acts, his is committed when rape, as was which sex either compulsion Winship, 397 U.S. re reason- beyond a or deviate (proof intercourse ual L.Ed.2d one necessary person. to con- There every fact doubt able offense, ways com two principle statutory is a basic charged crime stitute meaning plain mitting is both it. This process). meaning accorded to and the the statute Cokeley is against judgment Because Arkansas. See it a con permitting instructions based S.W.2d Cokeley v. according to crime not viction for denied, trial, of his the time existing at law his fundamental been denied Cokeley has com- Although Cokeley was in trial court process. right of due way by engaging mitting rape reach a it could jury that — structed compul- intercourse by sexual for either guilty verdict showed state’s sion—the activi rape by deviate sexual or ways con- both committed general jury returned a ty. Because The victim testi- statute. templated by the specify driving spending time that after fied Coke- rape it found crimes of possible *6 friend, to a two went a around committed, be determined it cannot ley had Cokeley. He they met where residence Coke- record whether on basis home, drove a ride but give to her offered evi rested on contested ley’s conviction location, he where to secluded instead of charged crime dence knife, to threatened her, and pulled a beat finding that or by sexual clothing; her not remove if she did her kill sex in to consent oral did not victim and perform her to then forced of crime uncharged regard to that testified She have intercourse. to A conviction based deviate sex, during the oral but Cokeley ejaculated of a violation constitutes on the latter ejaculated while if not know he did she gen process. Cokeley’s right of due “[A] leaped The victim having intercourse. jury aside if the set eral passing stop car and was able from any of rely it could that was instructed the victim motorists, of whom testified and one grounds, independent or more They provided hysterical. nude and was Zant is insufficient....” grounds of those police her to the clothing and took her Stephens, v. station, she fainted. where (1983); Strom hospi- U.S. at a local California, 283 examined berg v. was The victim (1931); Unit when 75 L.Ed. that indicated evidence Medical tal. Sales, distraught, crying, and v. was ed States arrived she she circum on her Cir.1984). under She had bruises very embarrassed. set aside stances, vaginal no choice but have examina- back. A upper we and face constitutionally invalid An examination as no semen. revealed tion not relief. mouth was grant habeas in her semen traces of pubic whether a to determine Tests done. vaginal area from her recovered hair III. CONCLUSION inconclusive. were, above, grant reasons stated For the no that made Cokeley’s defense was habeas for writ of request petitioner’s force, that he no applied sub- threats U.S.C. to 28 corpus pursuant victim, timony not sexual intercourse with the Cokeley perform have that forced her to voluntarily that she committed oral sex yet oral sex equally have discredited her Clearly him. there was no element plausible testimony her, that he also forced surprise or lack of notice to to sexual submit intercourse. testimony victim’s I agree As cannot was denied raped by forcing her sexual intercourse law, process dissent, I respectfully forcing per- her but also her to and would affirm the District Court’s dis- oral sex. form missal of petition. habeas The medical noted above was

consistent with the victim’s beaten,

she was but otherwise was incon- Thus

clusive. the state’s case rested al- entirely testimony;

most on the victim’s jury Cokeley guilty could not find

rape unless it As the believed victim. guilty, found him so we can con- BAKER, Appellant, Richard L. victim, clude that it did believe the absolutely there is no reason to think it did Baker, and Irma ie., story, not believe all of the victim’s raped her in both BAKER; Co.; Donald B. Pro-Mark Mid ways in which the statute defines the crime Marketing Company; west H.J. Heinz rape. As the Court Arkan- Olson, Company; Appellees. Donald in Cokeley’s appeal, sas found direct simply The trial instructed the BAKER, Appellee, Richard L. according to the statute that a Baker, and Irma commits if he in sexual intercourse or deviate sexual person by compul- BAKER, Appellant, Donald B. sion and defined the two acts. The evi- Co.; Marketing Pro-Mark Midwest supports finding guilt dence Company; Company; Heinz H.J.

by either or both means. The issue in *7 Donald Olson. rape, this case is not the manner of the compulsion but whether Nos. 90-2414. argument indeed occurred. There is no Appeals, United States Court of that there is not substantial evidence to Eighth Circuit. support finding Cokeley raped way. Cokeley victim either was convict- April Submitted ed the crime with which he was Decided Dec. charged rape.— Cokeley, 705 S.W.2d at 427. findings

These Court of presumption

Arkansas are entitled to the afforded state court

of correctness find- 2254(d)(1988).

ings by 28 U.S.C. Consid-

ering findings, it becomes clear that and that convicted charge

the variance between the on which to trial and the trial court’s in- went jury did

struction to the not affect fairness of the trial.

fundamental Given evidence,

the state of the a rational

hardly could have credited the victim’s tes-