F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 3 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROBERT SIMPSON EVANS, JR.,
Petitioner - Appellant,
v.
No. 03-6012
CHARLES RAY, Warden of the Davis
Correctional Center,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-02-501-M)
Steven Michael Presson (Robert W. Jackson with him on the briefs), Jackson &
Presson, P.C., Norman, Oklahoma, for Petitioner-Appellant.
William R. Holmes, Assistant Attorney General of Oklahoma (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma
City, Oklahoma, for Respondent-Appellee.
Before EBEL, HOLLOWAY, and BRISCOE, Circuit Judges.
EBEL, Circuit Judge.
Robert Simpson Evans, Jr. (“Petitioner”) was convicted and sentenced to
life imprisonment for first degree child abuse murder. On direct appeal to the
state court, Petitioner argued that the retroactive application of Fairchild v. State,
998 P.2d 611 (Okla. Crim. App. 1999), which he contends changed the mens rea
element of Oklahoma’s child abuse murder statute from specific to general intent,
violates ex post facto principles as incorporated in the Due Process Clause of the
Fourteenth Amendment. The state court disagreed and affirmed his conviction.
Petitioner now makes the same argument on federal habeas review. Because we
conclude that the state court reasonably applied the Supreme Court’s precedent on
ex post facto principles regarding judicial rules, we AFFIRM.
BACKGROUND
On November 9, 2000, Petitioner was found guilty of first degree child
abuse murder under Okla. Stat. tit. 21, § 701.7(C), 1 and was sentenced to life in
prison. The conviction arose out of the death of Petitioner’s two-year-old
stepson, Daquinlan McKnight, on November 22, 1996, as a result of
complications from burns suffered by the child on November 12, 1996. The jury
instructions required only general intent, allowing the jury to convict Petitioner if
1
Under the relevant portion of this statute, “[a] person commits murder in
the first degree when the death of a child results from the willful or malicious
injuring, torturing, maiming or using of unreasonable force by said person . . .
upon the child.” Okla. Stat. tit. 21, § 701.7(C). The mens rea for this crime is met
if the person “either willfully tortured or used unreasonable force upon the child
or maliciously injured or maimed the child.” Id.
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it found that he had acted with the desire to “vex, annoy or injure” the child, even
if he did so without “any intent to violate the law.” 2
On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA),
Petitioner argued that the law at the time of his actions in 1996 clearly required
specific, not general, intent. Although the OCCA in 1999 construed the child
abuse murder statute to require only general intent in Fairchild, 998 P.2d at 622-
23, Petitioner insisted that the retroactive application of that decision to his
particular case violated ex post facto principles. The OCCA disagreed and
affirmed his conviction.
On April 17, 2002, Petitioner filed a petition for habeas corpus in the
Western District of Oklahoma, making the same ex post facto argument that he
had made before the state appellate court. On December 30, 2002, the district
court denied habeas relief.
Petitioner filed a timely notice of appeal and application for certificate of
appealability (COA). On July 22, 2003, we granted COA and directed the parties
to address Petitioner’s ex post facto argument on appeal.
2
Petitioner does not challenge the language of this instruction if Okla. Stat.
tit. 21, § 701.7(C) can be satisfied by general intent. His sole challenge is that
the Oklahoma Court of Criminal Appeals violated ex post facto principles
expressed in the Due Process Clause when it concluded after his acts took place
that the statute was a general intent statute.
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DISCUSSION
I. Jurisdiction
Although Petitioner claims to bring this action under both 28 U.S.C. § 2241
and § 2254, we construe his petition as one under § 2254 because he is
challenging the fact of his conviction rather than the execution of his sentence.
See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). We review the
district court’s denial of a § 2254 habeas petition under 28 U.S.C. § 2253.
II. Standard of Review
A petition for habeas corpus brought under § 2254(d) will only be granted
if the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or if it “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
The Supreme Court has clarified that a state court determination is contrary
to clearly established Supreme Court precedent where “the state court applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases”
or “the state court confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives at a result
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different from” the result reached by the Supreme Court. Williams v. Taylor, 529
U.S. 362, 405-06 (2000); see also Cannon v. Gibson, 259 F.3d 1253, 1260 (10th
Cir. 2001), cert. denied, 535 U.S. 1080 (2002) (same).
In examining whether the state court’s decision involved an unreasonable
application of clearly established federal law as determined by the Supreme
Court, it is not enough that the state court applied clearly established federal law
erroneously or incorrectly. Rather, the application must be unreasonable.
Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001) (“The Supreme Court
has cautioned ‘that an unreasonable application of federal law is different from
an incorrect or erroneous application of federal law.’”) (quoting Williams, 529
U.S. at 412).
We review the district court’s factual findings for clear error and its legal
basis for dismissal of a habeas petition de novo. Fisher v. Gibson, 262 F.3d 1135,
1142 (10th Cir. 2001), cert. denied, 535 U.S. 1034 (2002).
III. Analysis
A. Ex post facto principles as implicated in the retroactive
application of judicial decisions
Article I, § 10 of the U.S. Constitution provides that “[n]o State shall . . .
pass any . . . ex post facto Law.” U.S. Const. art I, § 10, cl. 1. To fall within the
Ex Post Facto Clause, “a law must be retrospective – that is, ‘it must apply to
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events occurring before its enactment’ – and it ‘must disadvantage the offender
affected by it.’” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver v.
Graham, 450 U.S. 24, 29 (1981)). The Supreme Court long ago described
categories of laws that were prohibited by the Ex Post Facto Clause, including
laws that criminalize innocent action taken before the passage of the law, as well
as laws that inflict a greater punishment than was provided for when the crime
was committed. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388-90 (1798). “‘The
purposes behind the prohibition on ex post facto laws are twofold: to restrain
legislatures and courts from arbitrary and vindictive action and to prevent
prosecution and punishment without fair warning.’” Devine v. New Mexico
Dep’t of Corrections, 866 F.2d 339, 344 (10th Cir. 1989) (quoting Rubino v.
Lynaugh, 845 F.2d 1266, 1272 (5th Cir. 1988)).
“The Ex Post Facto Clause is a limitation upon the powers of the
Legislature, and does not of its own force apply to the Judicial Branch of
government.” Marks v. United States, 430 U.S. 188, 191 (1977) (citation
omitted); see also Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (“The Ex Post
Facto Clause, by its own terms, does not apply to courts.”). However, the
rationale of providing fair warning to criminal defendants is inherent in the notion
of due process. Bouie v. City of Columbia, 378 U.S. 347, 354-55 (1964).
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Although ex post facto principles are thus relevant to the retroactive
application of judicial decisions through the due process clause of either the Fifth
or the Fourteenth Amendment, the Ex Post Facto Clause is not incorporated
wholesale or “jot-for-jot.” Rogers, 532 U.S. at 459. “Extending the Clause to
courts through the rubric of due process . . . would circumvent the clear
constitutional text” and “would evince too little regard for the important
institutional and contextual differences between legislating, on the one hand, and
common law decisionmaking, on the other.” Id. at 460. The Court explained that
a court’s “‘opportunity for discrimination’” is more limited than a legislature’s.
Id. at 460-61 (quoting James v. United States, 366 U.S. 213, 247 n.3 (1961)
(Harlan, J., concurring in part and dissenting in part)).
Therefore, the prohibition of the ex post facto application of judicial
decisions is less extensive than the prohibition of ex post facto statutes. See
Wayne R. LaFave, Substantive Criminal Law § 2.4(c) (2d ed. 2003). The Rogers
Court distilled the ex post facto test for judicial opinions into the following:
“[D]ue process limitations on the retroactive application of judicial interpretations
of criminal statutes” only apply to those decisions “that are ‘unexpected and
indefensible by reference to the law which had been expressed prior to the
conduct in issue.’” 532 U.S. at 461 (quoting Bouie, 378 U.S. at 354). For
example, in Rogers, the Tennessee supreme court had abolished the common law
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doctrine requiring a murder victim to have died within one year and a day after
the defendant’s actions before the defendant could be convicted of murder. The
Supreme Court held that the retroactive application of the judicial abolition of the
“year and a day” rule did not violate due process because the rule itself was not
well-established prior to the judicial decision, and thus the abolition of this
“common law relic” was not unexpected or indefensible. Rogers, 532 U.S. at
462-64.
In Bouie, the South Carolina supreme court had construed a trespassing
statute to include remaining on the premises after having been asked to leave,
even though the “narrow and precise” language of the trespass statute only
prohibited “entry” after notice. 378 U.S. at 349, 351-52. Because such narrow
and precise language “lulls the potential defendant into a false sense of security,
giving him no reason even to suspect that conduct clearly outside the scope of the
statute as written will be retroactively brought within it by an act of judicial
construction,” the Supreme Court held that judicial expansion beyond the plain
language violated due process principles of fair warning when retroactively
applied. Id. at 352-55, 363; see also Marks, 430 U.S. at 196 (holding that
although statutory language was not narrow or precise, judicial creation of new
standards governing obscenity was unexpected and violated the fair warning
principle of due process when applied retroactively).
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The Tenth Circuit has provided guidance 3 in applying the ex post facto
principles of Marks, Bouie, and Rogers by formulating a two-pronged inquiry.
First, we discern whether the statute is “narrow and precise” on its face. Hawkins
v. Mullin, 291 F.3d 658, 665 (10th Cir. 2002), cert. denied, 537 U.S. 1173 (2003)
(citing McDonald v. Champion, 962 F.2d 1455, 1458-59 (10th Cir. 1992)
(quotation omitted)). If so, “any judicial expansion of that statute beyond its own
terms will be considered unforeseeable.” Id. (quotation omitted). Second, if the
statute is not so clearly drawn on its face, we ask “‘whether the [state court’s]
construction is so unexpected and indefensible by reference to the law which had
been expressed prior to the conduct at issue as to prevent its application
retroactively.’” Id. at 666 (quoting McDonald, 962 F.2d at 1458) (alteration in
original).
With these ex post facto principles in mind, we turn now to Petitioner’s
argument against retroactively applying the Fairchild court’s construction of the
child abuse murder statute as requiring only general intent.
3
Because we are reviewing a § 2254 habeas petition, we are only bound to
investigate federal law as expressed by the Supreme Court and ascertain whether
such law was reasonably applied by the state court. See 28 U.S.C. § 2254 (d)(1).
However, in reviewing habeas petitions, we often look for guidance in the Tenth
Circuit’s interpretation of Supreme Court cases. See e.g., Hawkins v. Mullin, 291
F.3d 658, 665 (10th Cir. 2002).
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B. The Fairchild decision was not unexpected and indefensible
against the backdrop of prior Oklahoma law regarding the mens
rea required by the child abuse murder statute.
Petitioner argues that Oklahoma law at the time of his actions in 1996
clearly required specific intent for a conviction under the child abuse murder
statute. Therefore, he contends, when the OCCA later construed the statute to
require only general intent in Fairchild, 998 P.2d at 622-23, this was an
unexpected and indefensible change in the law. He argues that requiring only a
general intent mens rea in his particular case violated ex post facto principles as
incorporated by the Due Process Clause of the Fourteenth Amendment. As
described below, we disagree with Petitioner’s argument and AFFIRM the district
court’s denial of habeas. The state appellate court correctly found that the
Fairchild case was not unexpected and indefensible, and even if the court had
erred, its application of Supreme Court case law in this analysis was not
unreasonable. See Williams, 529 U.S. at 410-11.
Petitioner was convicted under Okla. Stat. tit. 21, § 701.7(C), which makes
child abuse murder a crime of murder in the first degree. The statute provides:
A person commits murder in the first degree when the death of a child
results from the willful or malicious injuring, torturing, maiming or using
of unreasonable force by said person or who shall willfully cause, procure
or permit any of said acts to be done upon the child pursuant to Section
7115 of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of
murder in the first degree that the person either willfully tortured or used
unreasonable force upon the child or maliciously injured or maimed the
child.
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Okla. Stat. tit. 21, § 701.7(C). This language is not “narrow and precise” with
regard to whether the required mens rea is one of general or specific intent. The
mens rea elements of criminal statutes are rarely clear from the statutory language
itself. LaFave, Substantive Criminal Law § 5.1(b) (describing ambiguity of the
terms “wilfully” and “maliciously”). In fact, it would be reasonable to read this
particular statute as requiring only general intent. As the Fairchild court
explained, the mens rea of “willful or malicious,” which is required by the plain
language of § 701.7(c), normally does not indicate a crime of specific intent.
Fairchild, 998 P.2d at 620 (citing as examples arson, assault, and aggravated
assault and battery, among other things).
Because the statute is not narrow and precise on the mens rea element, we
next examine whether the Fairchild decision was “unexpected and indefensible”
by reference to prior Oklahoma law. See Hawkins, 291 F.3d at 666 (citing
Rogers, 532 U.S. at 461) (quotations omitted). Petitioner cites several cases for
the proposition that Oklahoma law prior to his actions in November 1996 clearly
required specific intent. However, as the Fairchild court itself correctly
recognized, only one of these cases, Hockersmith v. State, 926 P.2d 793, 795
(Okla. Crim. App. 1996), actually used the term “specific intent” and it did so
only in one sentence and with no discussion of existing Oklahoma law to the
contrary. Fairchild, 998 P.2d at 621-22. All of the other cases required only
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“intent to injure,” and the Fairchild court explained that this “intent” merely
meant the intent encompassed by the term “willful,” and did not require specific
intent. Id. at 622 (citing Grady v. State, 947 P.2d 1069 (Okla. Crim. App. 1997),
Bannister v. State, 930 P.2d 1176, 1178 (Okla. Crim. App. 1996), Revilla v. State,
877 P.2d 1143, 1148, 1152 (Okla. Crim. App. 1994), and Watkins v. State, 744
P.2d 967, 970 (Okla. Crim. App. 1987)).
Additionally, the Fairchild court pointed out that an earlier case, Workman
v. State, 824 P.2d 378, 383 (Okla. Crim. App. 1992), held that the intent for first
degree child abuse murder was “general intent.” Fairchild, 998 P.2d at 618-19.
Because Hockersmith did not overrule Workman, the state of the law at the time
prior to Petitioner’s actions in 1996 was confusing and unclear with regard to the
mens rea element of this statute. The OCCA viewed its Fairchild opinion as
simply “clarifying” the correct rule, consistent with a long string of earlier
Oklahoma cases interpreting the “willful” requirement as a requirement of general
intent rather than specific intent, id. at 620-22, and overturning the “aberration”
that was Hockersmith. Id. at 619, 622. 4
4
As the magistrate judge pointed out below, even the Oklahoma Uniform
Jury Instructions, which were adopted by the OCCA prior to this offense,
approved an instruction for child abuse murder that followed the language of a
general intent statute rather than a specific intent statute. See Oklahoma Uniform
Jury Instructions - Criminal, 2d 4-65A, at 156A (Apr. 4, 1996).
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There were thus two conflicting, valid cases on the books at the time of
Petitioner’s actions in 1996 – one that required only general intent (Workman)
and one that required specific intent (Hockersmith). There were also several
cases that used the phrase “intent to injure,” without discussion of either specific
or general intent (Grady, Bannister, Revilla, and Watkins).
This confusion is similar to the situation we faced in Sallahdin v. Gibson,
275 F.3d 1211 (10th Cir. 2002), in which the petitioner launched an ex post facto
attack on a new judicial decision that attempted to reconcile earlier confusion in
the law. Id. at 1228-29. In Sallahdin, we held that the later judicial decision was
“foreseeable and defensible” because it was simply attempting to reconcile its
earlier “diametric opposing lines of caselaw authority” on the issue. Id. (citation
and quotation omitted). Therefore, the retroactive application of the new decision
did not violate ex post facto principles. Id. Similarly, we do not find the
Fairchild decision to be unexpected and indefensible. 5
In sum, Fairchild was not unexpected and indefensible in light of the plain
language of the statute and Oklahoma case law in force as of the time the crime
was committed. To the contrary, an opinion resolving the conflict between
5
At oral argument, Petitioner insisted that Fairchild was “indefensible”
because its interpretation of the statute constituted bad policy. However, because
our responsibility is not to second-guess state policy decisions, but only to
ascertain whether defendants would have had fair warning of the judicial ruling,
we reject this argument.
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Workman and Hockersmith was eminently predictable. That the Fairchild court
chose to go with Workman was certainly defensible in light of the statutory
language of Okla. Stat. tit. 21, § 701.7(C) and Oklahoma’s long history of
interpreting the statutory requirement of “willful” as a general intent requirement
rather than as a specific intent requirement. So, Fairchild was neither unexpected
nor indefensible, let alone unexpected and indefensible. The OCCA correctly
identified the controlling Supreme Court precedent of Rogers and we cannot say
that OCCA’s application of the Rogers principles was unreasonable, even if that
application was wrong. See Williams, 529 U.S. at 412. Accordingly, we
AFFIRM the district court’s refusal to grant habeas under § 2254.
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