F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 21 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
BILL DEAN CARTER,
Petitioner-Appellant,
v. No. 02-6307
RON WARD, Warden; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 02-CV-198-H)
Submitted on the briefs:
Bill Dean Carter, Pro Se.
W. A. Drew Edmondson, Attorney General of Oklahoma, Brant M. Elmore,
Assistant Attorney General, Criminal Division, Oklahoma City, Oklahoma, for
Respondents-Appellees.
Before TYMKOVICH , HOLLOWAY , and ANDERSON , Circuit Judges.
ANDERSON , Circuit Judge.
Petitioner Bill Dean Carter appeals 1
from a district court order denying his
application for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was
convicted in Oklahoma state court of committing and attempting to commit lewd
acts with the minor daughters of his girlfriend. After pursuing state appellate and
post-conviction relief, he filed this habeas action challenging his convictions on
numerous grounds: violation of statute of limitations; improper prosecutorial
comment on pre-arrest silence and failure to offer evidence of innocence at trial;
admission of hearsay evidence; improper closing argument; violation of double
jeopardy; judicial bias; denial of speedy trial; insufficient evidence; ineffective
assistance of trial and appellate counsel; misapplication of law of attempt; denial
of right to present adequate defense; and cumulative error. The magistrate judge
thoroughly considered his claims and recommended denying relief. The district
court adopted the recommendation with minimal change and dismissed the action.
A judge of this court has granted petitioner a certificate of appealability
(COA) “as to the issue of whether the prosecutor’s comments and elicited
testimony regarding his pre-arrest silence violated his Fifth Amendment right to
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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remain silent.” Order filed April 17, 2003. For reasons explained below, we
affirm the denial of relief on this issue, and deny a COA and dismiss as to all
other claims.
Petitioner’s Fifth Amendment claim derives from two incidents at trial
which suggested to the jury that he avoided the investigation of the victims’
allegations of abuse. In both instances, the prosecutor indicated to the court that
he was attempting to lay the groundwork for a flight instruction, not commenting
on petitioner’s silence. First, in his opening statement the prosecutor noted that
after the victims spoke with authorities, “they never s[aw] the Defendant ever
again,” and that after the investigating detective left word for petitioner to contact
him,“[t]he detective never hear[d] from him.” Trial Tr. Vol. II at 139, 145. The
prosecution returned to the latter point when the detective took the stand. On
direct examination, the detective explained that he had spoken on the phone with
someone identifying himself as petitioner, that he informed this person of the
report of abuse that had been made, and then left his phone number so he could be
reached, but despite these efforts the detective “never received a call back from
anybody.” Trial Tr. Vol. III at 45-48.
In both instances defense counsel objected and moved for a mistrial on the
basis that petitioner’s exercise of his constitutional right to remain silent was
improperly, if indirectly, commented upon. The trial court denied the objection,
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but cautioned that “this comes very close” to an “impinge[ment] of [petitioner’s]
right to assert his fifth amendment privilege” and directed the prosecutor “to be
very explicit that you’re commenting [instead] on what the detective did.” Trial
Tr. Vol. II at 142.
On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)
acknowledged that these incidents “did, tangentially, reveal [petitioner’s]
pre-arrest silence and lack of cooperation.” Carter v. State , No. F 99-1293, at 4
(Okla. Crim. App. Jan. 4, 2001). However, the OCCA concluded that, in any
event, “because the evidence of guilt was overwhelming, any relationship between
these comments and [petitioner’s] right to remain silent was harmless beyond a
reasonable doubt.” Id. (citing Chapman v. California , 386 U.S. 18 (1967)).
The magistrate judge took a similar view in this habeas proceeding. Noting
that this circuit had extended the rule of Griffin v. California , 380 U.S. 609, 615
(1965) (holding Fifth Amendment prohibits comment on accused’s testimonial
silence), and Miranda v. Arizona , 384 U.S. 436, 468 n.37 (1966) (holding Fifth
Amendment prohibits comment on accused’s silence during police custodial
interrogation), to a pre-arrest, pre- Miranda context in United States v. Burson ,
952 F.2d 1196, 1200-01 (10 th Cir. 1991), the judge stated that “the prosecutor’s
remarks and [the detective’s] testimony appear unconstitutional under Burson .”
R. doc. 19, at 9. However, the judge also considered the evidence of guilt to be
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overwhelming and recommended that the district court uphold the OCCA’s
disposition as a reasonable application of the controlling Chapman standard. Id.
at 14.
On review of the magistrate judge’s recommendation, the district court
indicated it “might not categorize the evidence of guilt as ‘overwhelming,’” but
nevertheless agreed that any Burson error was harmless. R. doc. 71, at 1 n.2. The
court held in the alternative that (1) “the OCCA’s assessment of the constitutional
error for harmlessness under [ Chapman ] was not objectively unreasonable,” and
(2) if it reviewed the record de novo under the habeas harmless-error standard set
out in Brecht v. Abrahamson , 507 U.S. 619 (1993), it would hold “that the
objectionable evidence/comments did not have a ‘substantial and injurious effect
or influence in determining the jury’s verdict.’” R. doc. 71 at 1-2, n.2 (quoting
Brecht , 507 U.S. at 637).
Quite apart from the question of harmlessness, however, petitioner’s claim
has a fatal legal deficiency that neither the magistrate judge nor the district court
noted but that we deem to be of fundamental importance. Congress has directed
in unqualified terms that federal courts may not grant habeas relief on the basis of
claims rejected on the merits in state court unless the state adjudication “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
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United States .” 28 U.S.C. §2254(d)(1) (emphasis added). Thus, an absolute
prerequisite for petitioner’s claim is that the asserted constitutional right on which
it rests derive in clear fashion from Supreme Court precedent. See Anderson v.
Mullin , 327 F.3d 1148, 1153 (10 th Cir. 2003) (explaining § 2254(d)(1) inquiry
“begins and ends with the holdings . . . of the Supreme Court’s decisions as of the
time of the relevant state-court decision” (quotations omitted)), petition for cert.
filed (U.S. Jul. 22, 2003) (No. 03-5556). Petitioner’s claim does not satisfy this
statutory condition.
This court, like many others, has noted that “[t]he Supreme Court has not
yet ruled on whether pre- Miranda or prearrest silence . . . is protected by the Fifth
Amendment” so as to proscribe its use by the prosecution on the issue of guilt.
Luman v. Champion , No. 95-5275, 1997 WL 143594, at **3 (10 th Cir. March 31,
1997); see Stephanie Petrucci, The Sound of Silence: The Constitutionality of the
Prosecution’s Use of Prearrest Silence in its Case-In-Chief , 33 U.C. Davis L.
Rev. 449, 451 (2000). Indeed, the Supreme Court specifically left that issue
undecided in Jenkins v. Anderson , 447 U.S. 231 (1980), when it held that the
Fifth Amendment did not prohibit the use of pre-arrest silence for purposes of
impeachment, see id. at 236 n.2, 238. The circuit courts have debated the matter
ever since with no decisive majority position emerging. See Combs v. Coyle ,
205 F.3d 269, 281-83 (6 th Cir. 2000) (discussing decisions from three circuits
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which have prohibited prosecution’s substantive use of defendant’s pre-arrest
silence and three circuits which have permitted the practice).
For obvious reasons, the Supreme Court’s express reservation of an issue of
law precludes a determination under § 2254(d)(1) that a later state court decision
rejecting a claim turning on that issue is “contrary to” clearly established Supreme
Court precedent. Anderson , 327 F.3d at 1155 (“‘If no Supreme Court precedent is
dispositive of a petitioner’s claim, then, a fortiori, there is no specific rule to
which the state court’s decision can be “contrary.”’” (quoting Vieux v. Pepe , 184
F.3d 59, 63 (1 st Cir. 1999)). Thus, “[t]he Court’s express reservation in [ Jenkins ]
disposes of petitioner’s [Fifth Amendment] argument under the ‘contrary to’
clause of section 2254(d)(1).” Id. 2
We must still consider whether petitioner could prevail, alternatively, under
§ 2254(d)(1)’s “unreasonable application” clause. That provision
applies in two scenarios: first, where the state court identifies the
correct governing legal rule from the Supreme Court’s cases but
unreasonably applies it to the facts . . .; second, where the state court
either unreasonably extends a legal principle from Supreme Court
precedent to a new context where it should not apply or unreasonably
2
We note that the state courts did not discuss Griffin , Miranda , or Jenkins .
However, the effect of § 2254(d)(1)’s limitation on habeas relief does not turn on
the state courts’ “citation of [Supreme Court] cases–indeed, it does not even
require awareness of [those] cases, so long as neither the reasoning nor the result
of the state-court decision contradicts them.” Early v. Packer , 537 U.S. 3, 8
(2002). Thus, the critical point is that the state courts could not have contradicted
Supreme Court case law that did not govern the particular result here .
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refuses to extend that principle to a new context where it should
apply.
Valdez v. Ward , 219 F.3d 1222, 1229-30 (10 th Cir. 2000) (quotations omitted). It
follows from what we have already said that there is no “governing legal rule
from the Supreme Court’s cases” here. We are thus concerned only with the
second scenario, i.e., was it unreasonable not to extend and enforce the rule
prohibiting prosecutorial comment on silence from the custodial/testimonial
context to the pre-arrest context? Here we heed the Supreme Court’s emphatic
instruction that “ unreasonable . . . is different from . . . incorrect .” Woodford v.
Visciotti , 537 U.S. 19, 25 (2002) (quotation omitted). Given the reasoned
differences of opinion summarized in recent decisions from either side of the
circuit split noted above, compare Combs , 205 F.3d at 282-83 with United States
v. Oplinger , 150 F.3d 1061, 1066-67 (9 th Cir. 1998), we hold that petitioner
cannot excuse the lack of Supreme Court precedent for his claim by invoking the
precedent-extension principle associated with § 2254(d)(1)’s “unreasonable
application” clause. Accordingly, habeas relief on the claim is foreclosed by the
statute.
Finally, we have reconsidered petitioner’s COA application to confirm the
implicit determination of the circuit judge who previously granted a COA on the
Fifth Amendment issue, that petitioner has not “made a substantial showing of the
denial of a constitutional right” with respect to any additional issues. 28 U.S.C.
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§ 2253(c)(2). Upon review of the relevant materials, we conclude that reasonable
jurists would not find the district court’s disposition of the remaining claims
wrong or even debatable and, therefore, deny a COA and dismiss as to all such
claims. See Slack v. McDaniel , 529 U.S. 473, 484 (2000).
The judgment of the district court is AFFIRMED. The motion filed by Mr.
Timothy Hurley to appear on behalf of the petitioner is denied.
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