Vos v. Turley
Filing
19
MEMORANDUM DECISION and ORDER DENYING HABEAS CORPUS PETITION. It is therefore ordered that this habeas corpus petition under 2254 is DENIED. Signed by Judge Clark Waddoups on 3/16/2012. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
ISIAH BO'CAGE VOS,
) MEMORANDUM DECISION & ORDER
) DENYING HABEAS CORPUS PETITION
Petitioner,
)
) Case No. 2:08-CV-869 CW
v.
)
) District Judge Clark Waddoups
STEVEN TURLEY,
)
)
Respondent.
)
_________________________________________________________________
Petitioner, Isiah Bo'Cage Vos, an inmate at Utah State
Prison, petitions for habeas corpus relief.1
The Court denies
him.
BACKGROUND
Petitioner was convicted in Utah state court of one count of
first-degree felony murder with a firearm enhancement, for which
he was sentenced to one term of five years to life, with an
additional year to be served consecutively.
His conviction was
upheld in a Utah Court of Appeals opinion.2
Petitioner then
filed a certiorari petition in the Utah Supreme Court.
brought but one challenge:
Did the Court of Appeals err in concluding a
defendant's unwarned statement is admissible
at trial because the defendant was
represented by counsel during custodial
interrogation, where the defendant was not
given Miranda warnings, was not otherwise
informed of his Fifth Amendment rights
1
See 28 U.S.C.S. § 2254 (2012).
2
State v. Vos, 164 P.3d 1258, 1259 (Utah Ct. App. 2007).
There, he
against self-incrimination, and did not
voluntarily waive those rights?3
The supreme court summarily denied his petition.4
Here, Petitioner raises the following issues of ineffective
assistance of counsel:
Counsel (1) inadequately investigated the
situation before advising Petitioner to talk to the police; (2)
inappropriately locked into an "imperfect self defense" defense,
excluding other possible defenses; (3) failed to require police
to give Petitioner a Miranda warning; (4) coerced Petitioner into
giving his statement; and (5) posed a conflict of interest when
he talked, unauthorized, to a detective about Petitioner's case,
implicating Petitioner.
Petitioner also raises the same Miranda5
issue he raised before the Utah Supreme Court.
The State responded to the petition, arguing that the
ineffective-assistance-of-counsel grounds are procedurally
defaulted.
It also argues that the Miranda issue does not
warrant habeas relief.
ANALYSIS
I. Procedural Default
In general, before Petitioner may seek review of a Utah
conviction in federal court, he must exhaust all remedies in the
3
Petition for Writ of Certiorari to the Utah Court of Appeals [Dkt. 12,
Ex.D, p.1]
4
State v. Vos, 186 P.3d 347 (Utah 2007).
5
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Utah courts.6
This means Petitioner must properly present to the
highest available Utah court the federal constitutional issues on
which he seeks relief.7
Here, Petitioner did not present his
issues to the highest court available, the Utah Supreme Court.
The United States Supreme Court has said that when a
petitioner has not exhausted "'his state remedies and the court
to which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the
claims procedurally barred' the claims are considered exhausted
and procedurally defaulted for purposes of federal habeas
relief."8
The ineffective-assistance issues Petitioner raises here are
now ineligible to be exhausted in the Utah courts.
Utah's Post-
Conviction Remedies Act (PCRA) states, "A person is not eligible
for relief under this chapter upon any ground that . . . could
have been but was not raised at trial or on appeal."9
The
grounds Petitioner presents could have been brought on appeal and
are therefore disqualified for state post-conviction relief now.
6
See 28 U.S.C.S. § 2254(b) & (c) (2012); Picard v. Connor, 404 U.S. 270,
275-76 (1971); Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at *2 (10th
Cir. Nov. 9, 1998) (unpublished).
7
See Picard, 404 U.S. at 275-76.
8
Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
9
Utah Code Ann. § 78B-9-106(1) (2012); cf. Hale v. Gibson, 227 F.3d
1298, 1328 (10th Cir. 2000) ("Oklahoma bars collateral review of claims . . .
that could have been raised on direct appeal but were not. Accordingly,
[petitioner] has defaulted his claim . . . .").
3
The Court therefore applies the doctrine of "anticipatory
procedural bar," which "'occurs when the federal courts apply [a]
procedural bar to . . . [a] claim [not fairly presented to the
state court] that would be procedurally barred under state law if
the petitioner returned to state court to exhaust it.'"10
Petitioner's ineffective-assistance-of-counsel issues "are thus
considered exhausted and procedurally defaulted for purposes of
habeas review."11
"This court may not consider issues raised in a habeas
petition 'that have been defaulted in state court on an
independent and adequate procedural ground[] unless the
petitioner can demonstrate cause and prejudice or a fundamental
miscarriage of justice.'"12
Construing the petition liberally as
it must, the Court infers that Petitioner possibly argues cause
and prejudice and a fundamental miscarriage of justice justify
his procedural default.
"[T]o satisfy the 'cause' standard, Petitioner must show
that 'some objective factor external to the defense' impeded his
compliance with Utah's procedural rules."13
Meanwhile, to
10
Robinson v. Davis, No. 11-1525, 2012 U.S. App. LEXIS 3020, at *9 (10th
Cir. Feb. 16, 2012) (unpublished) (alterations in original) (quoting Anderson
v. Sirmons, 476 F.3d 1131, 1140 n.7 (10th Cir. 2007) (quotations omitted)).
11
Id. at *10.
12
Thomas, 218 F.3d at 1221 (alteration omitted) (citation omitted).
13
Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (citations omitted).
4
demonstrate prejudice, "'[t]he habeas petitioner must show not
merely that . . . errors . . . created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage.'"14
Petitioner possibly asserts that ineffective assistance of
counsel--i.e., prison-contract-attorney flawed advice about a
potential state post-conviction application--and his lack of
legal knowledge are circumstances satisfying the cause-andprejudice standard.
However, "[t]here is no constitutional right
to an attorney in state post-conviction proceedings,"15 and, so,
state post-conviction counsel's performance cannot be the basis
of an ineffectiveness claim that would establish cause and
prejudice excusing a procedural default.16
Petitioner has not
met his burden of showing that objective factors external to the
defense hindered him in meeting state procedural demands.
Nor
does he at all hint how he was actually and substantially
disadvantaged.
Under Tenth Circuit case law, lack of legal
resources and knowledge are also circumstances that do not carry
14
Butler v Kansas, No. 02-3211, 2002 WL 31888316, at *3 (10th Cir. Dec.
30, 2002) (unpublished) (alteration in original) (quoting Murray v. Carrier,
477 U.S. 478, 494 (1986) (emphasis in original)).
15
Coleman, 501 U.S. at 752.
16
Id.; Cummings v. Sirmons, 506 F.3d 1219, 1223 (10th Cir. 2007)
("[A]lthough [petitioner] appears to be asserting that the attorney who
represented him in his state post-conviction proceedings was ineffective for
failing to raise the claim, that is insufficient to establish cause and
prejudice because a criminal defendant is not constitutionally entitled to
representation by counsel in state post-conviction proceedings.").
5
Petitioner's burden to show cause.17
Indeed, these are also
factors internal to Petitioner's defense.
Finally, Petitioner possibly suggests that a miscarriage of
justice will occur if this Court does not address the defaulted
claims in his petition.
To be plausible, an actual-innocence
claim must be grounded on solid evidence not adduced at trial.18
Because such evidence is so rare, "'in virtually every case, the
allegation of actual innocence has been summarily rejected.'"19
Petitioner is burdened with making "a proper showing of factual
innocence."20
Petitioner's mere rehashing of the evidence and alleged
violations of his civil rights in state proceedings do nothing to
convince this Court that the exception applies.
Indeed, the
kernel of the Court's analysis regarding actual innocence is not
whether Petitioner urgently believes there were errors--or
whether there were indeed errors--in the state proceedings, but
17
Gilkey v. Kansas, No. 02-3227, 2003 WL 245639, at *2 (10th Cir. Feb.
4, 2003) (unpublished) (holding limited knowledge of the law is insufficient
to show cause for procedural default); Rodriguez v. Maynard, 948 F.2d 684, 688
(10th Cir. 1991) (concluding petitioner's pro se status and his corresponding
lack of awareness and training on legal issues do not constitute adequate
cause for his failure to previously raise claims).
18
Calderon v. Thompson, 523 U.S. 538, 559 (1998).
19
Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995) (citation
omitted)).
20
Byrns v. Utah, No. 98-4085, 1998 WL 874865, at *3 (10th Cir. Dec. 16,
1998) (unpublished) (citing Herrera v. Collins, 506 U.S. 390, 404 (1992)).
6
whether Petitioner is factually innocent.
This factual innocence
must also be supported with new evidence, which Petitioner has
not provided.
In sum, the Court determines Petitioner properly raised
before the Utah Supreme Court none of the ineffective-assistance
issues brought here.
Because under state law those questions no
longer qualify to be raised in Utah courts, the Court concludes
that they are technically exhausted, barred by state procedural
law, and procedurally defaulted in this federal habeas case.
Indeed, Petitioner has shown neither cause and prejudice nor a
fundamental miscarriage of justice to excuse his default.
II. Miranda Warning
A.
Standard of Review
The standard of review to be applied in federal habeas cases
is found in § 2254, of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), under which this habeas petition is
filed.
It states:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits in
State court proceedings unless the
adjudication of the claim-(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was
based on an unreasonable determination of the
7
facts in light of the evidence presented in
the State court proceeding.21
"Subsection (d)(1) governs claims of legal error while subsection
(d)(2) governs claims of factual error."22
There being no question of factual error here, the Court's
inquiry centers on whether the court of appeals's rejection of
Petitioner's Miranda claim "was contrary to, or involved an
unreasonable application of, clearly established Federal law."23
This "'highly deferential standard'"24 is "'difficult to meet,'
because the purpose of AEDPA is to ensure that federal habeas
relief functions as a '"guard against extreme malfunctions in the
state criminal justice systems,"' and not as a means of error
correction."25
The Court is not to determine whether the court
of appeals's decision was correct or whether this Court may have
reached a different outcome.26
"The role of federal habeas
proceedings, while important in assuring that constitutional
21
28 U.S.C.S. § 2254(d) (2012).
22
House v Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008).
23
28 U.S.C.S. § 2254(d)(1) (2012).
24
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citation omitted).
25
Greene v. Fisher, 132 S. Ct. 38, 43-44 (2011) (quoting Harrington v.
Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S.
307, 332 n.5 (1979) (Stevens, J., concurring in judgment))).
26
See Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).
8
rights are observed, is secondary and limited."27
And, "[t]he
petitioner carries the burden of proof."28
Under Carey v. Musladin,29 the first step is determining
whether clearly established federal law exists relevant to
Petitioner's claims.30
Only after answering yes to that
"threshold question" may the Court go on to "ask whether the
state court decision is either contrary to or an unreasonable
application of such law."31
[C]learly established [federal] law consists
of Supreme Court holdings in cases where the
facts are at least closely-related or similar
to the case sub judice. Although the legal
rule at issue need not have had its genesis
in the closely-related or similar factual
context, the Supreme Court must have
expressly extended the legal rule to that
context.32
In deciding whether relevant clearly established federal law
exists, this Court is not restricted by the state court's
analysis.33
27
Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
28
Cullen, 131 S. Ct. at 1398.
29
549 U.S. 70 (2006).
30
House, 527 F.3d at 1017-18.
31
Id. at 1018.
32
Id. at 1016.
33
See Bell v. Cone, 543 U.S. 447, 455 (2005) ("Federal courts are not
free to presume that a state court did not comply with constitutional dictates
on the basis of nothing more than a lack of citation."); Mitchell v. Esparza,
540 U.S. 12, 16 (2003) ("[A] state court need not even be aware of our
precedents, 'so long as neither the reasoning nor the result of the statecourt decision contradicts them.'") (citation omitted).
9
If this threshold is overcome, this Court may grant habeas
relief only when the state court has "unreasonably applied the
governing legal principle to the facts of the petitioner's
case."34
This deferential standard does not let a federal habeas
court issue a writ merely because it determines on its own that
the state-court decision erroneously applied clearly established
federal law.35
"'Rather that application must also be
unreasonable.'"36
Indeed, "'an unreasonable application of
federal law is different from an incorrect application of federal
law.'"37
This highly demanding standard was meant to pose a sizable
obstacle to the habeas petitioner.38
Section 2254(d) "stops
short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings."39
It maintains
power to issue the writ when no possibility exists that
"fairminded jurists could disagree that the state court's
decision conflicts with th[e Supreme] Court's precedents.
34
Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)).
35
See id.
36
Id. (quoting Williams, 529 U.S. at 411).
37
Harrington, 131 S. Ct. at 785 (emphasis in original) (quoting
Williams, 529 U.S. at 410).
38
Id. at 786.
39
Id. at 786 (citation omitted).
10
It
goes no farther."40
To prevail in federal court, "a state
prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement."41
It is against this backdrop that this Court now
applies the standard of review to the circumstances of this case.
B. Application of Standard of Review
Petitioner urges this Court to overturn the Utah Court of
Appeals's decision that his Miranda rights were not violated by
admission at trial of Petitioner's statement to police.
Petitioner argues that, before giving his statement to police, he
should have been told of his Miranda right against self
incrimination and given the chance to waive that right.
This,
despite the fact that his counsel was present during the
custodial interrogation during which he gave his statement.
Noting again that review is tightly circumscribed by the
standard of review for federal habeas claims by state prisoners,
this Court observes that the court of appeals selected the
correct governing legal principle with which to analyze the
40
Id.
41
Id. at 786-87.
11
Miranda issue.42
It is, of course, Miranda v. Arizona itself.43
As required by the standard of review, the Court now analyzes
whether the court of appeals's application of Miranda was
reasonable.
In analyzing this issue under Miranda, the Utah
Court of Appeals explained:
Miranda established that the State "may not
use statements, whether exculpatory or
inculpatory, stemming from custodial
interrogation of the defendant unless it
demonstrates the use of procedural safeguards
effective to secure the privilege against
self-incrimination." Id. at 444. The
procedural safeguards to which the Supreme
Court referred are, of course, the famous
warnings that a person "has a right to remain
silent, that any statement he does make may
be used as evidence against him, and that he
has a right to the presence of an attorney,
either retained or appointed." Id. However,
the Court also recognized that the warnings
are not the only possible means of ensuring
the right against self-incrimination and are
not required if there are "other fully
effective means . . . to inform accused
persons of their right of silence and to
assure a continuous opportunity to exercise
it." Id.
One such effective means is the actual
presence of counsel during police
questioning. Miranda itself expressly states
as much: "The presence of counsel, in all
the cases before us today, would be the
adequate protective device necessary to make
the process of police interrogation conform
to the dictates of the privilege [against
self-incrimination]." Id. at 466. The
prophylactic effect provided by the presence
42
Vos, 164 P.3d at 1261-63.
43
384 U.S. 436 (1966).
12
of counsel is so great that the Court goes on
to suggest that counsel's presence may, in
certain circumstances, allow police
questioning even after an individual
indicates his or her desire to remain silent.
See id. at 474 n. 44. Thus, Miranda itself
provides strong support for the State's
argument that Bucher's presence obviated any
need for Parks to advise Vos of his rights
and secure a waiver of those rights. . . .
Thus, counsel's presence at a custodial
interrogation does not act as a waiver or
forfeiture of any right that an accused
person may have to receive Miranda warnings,
but rather substitutes for the warnings as a
means of protecting the accused's privilege
against self-incrimination.
This is especially true where counsel is
not only present at the interrogation but has
also been allowed the opportunity to consult
with the accused prior to questioning. Here,
Vos spoke with Bucher about the case on at
least one occasion prior to his statement,
and the two had discussed Bucher's preferred
case strategy of self-defense. Bucher then
arranged the meeting between Vos and Parks.
Finally, and importantly, at the time of
Vos's statement, Parks allowed Vos and Bucher
to have a lengthy private consultation prior
to any questioning. Several other courts have
found the opportunity for consultation to be
a relevant consideration in determining that
counsel's presence at a custodial
interrogation obviates the need for Miranda
warnings. See, e.g., Smith, 832 So. 2d at
98; Mounts, 784 P.2d at 795-96; Collins v.
State, 420 A.2d 170, 176-77 (Del. 1980).
We agree with the State that, in light
of the presence and actions of counsel at the
time of Vos's statement, Parks was not
required to give Vos Miranda warnings or
secure an express waiver of rights from Vos
prior to taking his statement. We hold that
there is no need for Miranda warnings prior
to a custodial interrogation when an accused
13
person has had the meaningful opportunity to
consult with counsel and counsel is actually
present during questioning. As stated in
Miranda, counsel's presence ensures that
"statements made in the governmentestablished atmosphere are not the product of
compulsion." 384 U.S. at 466. Because Vos
had counsel present and was allowed the
opportunity to consult with counsel prior to
questioning, Parks was not required to give
the Miranda warnings and secure Vos's waiver
of rights prior to taking his statement.
Accordingly, we affirm the district court's
denial of Vos's motion to suppress.44
The court of appeals also distinguished and rejected in
detail a couple of cases from other state courts45 that
Petitioner cited for the proposition that Miranda warnings were
required under his facts.
Both cases "express the concern that
unless police officers are required to give Miranda warnings
despite the presence of counsel, a defendant 'forfeits his/her
right to be informed of the privilege against self-incrimination
merely because he/she has exercised the right to have counsel
present.'"46
In support of this concern, the cases cite Simmons
v. United States,47 a United States Supreme Court case, which
states, "'[i]n these circumstances, we find it intolerable that
one constitutional right should have to be surrendered in order
44
Vos, 164 P.3d at 1261-63 (quoting Miranda, 384 U.S. 436) (footnotes
omitted) (emphasis in original).
45
State v. Joseph, 128 P.3d 795, 810-11 (Hawaii 2006); State v. DeWeese,
582 S.E.2d 786, 795 (W. Va. 2003).
46
Vos, 164 P.3d at 1262 (quoting DeWeese 582 S.E.2d at 795; citing
Joseph, 128 P.3d at 810).
47
390 U.S. 377 (1968).
14
to assert another.'"48
However, as the court of appeals points
out, that Simmons comment does not involve Miranda.
Instead, it
was in the context of holding that a defendant's testimony
supporting an evidentiary challenge regarding the fruit of an
unlawful search and seizure may not later be brought forth
against him during trial to help determine his guilt.49
The court of appeals noted that "DeWeese and Joseph treat
the receipt of Miranda warnings as an independent right rather
than as a procedural safeguard," an "interpretation that is not
supported by the language or logic of Miranda."50
It went on to
point out that "Miranda expressly recognizes that its warnings
are only one method of safeguarding the rights of an accused, and
that other equally effective safeguards are constitutionally
permissible," and "Miranda, in fact, lists the presence of
counsel as one such alternative safeguard."51
The court of
appeals then concluded, "[C]ounsel's presence at a custodial
interrogation does not act as a waiver or forfeiture of any right
that an accused person may have to receive Miranda warnings, but
48
Vos, 164 P.3d at 1262 (quoting Simmons, 390 U.S. at 394).
49
Simmons, 390 U.S. at 382.
50
Vos, 164 P.3d at 1263.
51
Vos, 164 P.3d at 1263 (citing Miranda, 384 U.S. at 466).
15
rather substitutes for the warnings as a means of protecting the
accused's privilege against self-incrimination."52
Petitioner's cursory attack of the court of appeals's
analysis is limited to:
"Detective Parks testified that he did
not Mirandize the petitioner because he had an attorney
representing him on that matter.
Detective Parks . . . violated
the petitioner's constitutional rights."
He provides no argument
that the court of appeals chose the wrong case under which to
analyze his claim (and how could it have when it used the very
case from which the reading of rights derives its name and from
which the "verb" Mirandize derives?).
Petitioner completely ignores the federal statutory habeas
standard of review.
He merely insists, without analysis, that
his constitutional rights were violated.
However, based on its
careful reading of the court of appeals' thorough analysis in
this case, together with Miranda and United States Supreme Court
cases addressing Miranda issues, this Court can find no hint that
the court of appeals was unreasonable to observe that, counsel's
presence at the interrogation breeding Petitioner's statement,
protected his right against self incrimination.
52
Vos, 164 P.3d at 1263 (emphasis in original).
16
CONCLUSION
Petitioner's ineffective-assistance-of-counsel claims are
procedurally barred.
His other challenge based on his Miranda
rights raises no valid ground for federal habeas relief.
IT IS THEREFORE ORDERED that this habeas corpus petition
under § 2254 is DENIED.
DATED this 16th day of March, 2012.
BY THE COURT:
__________________________
CLARK WADDOUPS
United States District Judge
17
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