F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 25, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEFFREY J. SPERRY,
Petitioner-Appellant,
v. No. 04-3472
DAVID R. MCKUNE, Warden,
Lansing Correctional Facility; PHIL
KLINE, Kansas Attorney General,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 04-CV-3056-MLB)
Submitted on the briefs: *
Kari S. Schmidt, Conlee Schmidt & Emerson, LLP, Wichita, Kansas, for
Petitioner-Appellant.
Kristafer R. Ailslieger, Assistant Attorney General, Office of the Kansas Attorney
General, Topeka, Kansas, for Respondents-Appellees.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.
TYMKOVICH, Circuit Judge.
Jeffrey Sperry appeals a district court order denying his petition for habeas
relief from a first-degree murder conviction. We granted a certificate of
appealability on the following issues: (1) whether Kansas’s first-degree murder
statute is unconstitutionally vague; (2) whether Sperry’s due process rights were
violated by the prosecution’s use of a witness’s purportedly coerced statements to
impeach the witness’s trial testimony; and (3) whether Sperry had ineffective
assistance of counsel at trial and on appeal. We affirm.
B ACKGROUND
On November 25, 1995, Jeffrey Sperry shot and killed Lonnie Mallicoat
with a handgun. Sperry obtained the gun from his girlfriend, Reagan Brown, who
had previously been Mallicoat’s girlfriend. Sperry was charged with first-degree
murder, which Kan. Stat. Ann. § 21-3401(a) (Supp. 1994) defined as “the killing
of a human being committed . . . [i]ntentionally and with premeditation.” The
lesser-included offense of second-degree murder differed, for purposes relevant
here, by requiring only that the killing be “intentional[ ].” Id. § 21-3402(a).
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At trial, Sperry testified that he and Mallicoat had been arguing, and that he
pointed the gun at Mallicoat’s car, fearing he might be run over, when “the gun
just went off.” Tr. at 327. Brown testified that she saw Mallicoat “trying to throw
the car in reverse when he got shot,” id. at 293, and that she initially told a
detective that she “didn’t see [Sperry] shoot [Mallicoat],” id. at 289, but later told
the detective that she saw the shooting, id. at 291. Brown also testified that
Sperry telephoned her from jail and suggested that she take responsibility for the
shooting.
The jury found Sperry guilty of first-degree murder and he appealed. The
Kansas Supreme Court affirmed, rejecting his arguments that he (1) was denied a
fair trial, and (2) received ineffective assistance of counsel when Brown testified,
notwithstanding a violation of her Fifth Amendment rights when questioned by
detectives. State v. Sperry, 978 P.2d 933, 950-51 (Kan. 1999). Sperry was also
unsuccessful in his state post-conviction proceedings. There, the Kansas Court of
Appeals noted that Brown had written Sperry’s post-conviction counsel, stating
that her testimony and statements were truthful and uncoerced. Sperry v. Kansas,
No. 87,421, 2003 WL 22119218, *2-3 (Kan. Ct. App. Sept. 12, 2003). The court
also rejected Sperry’s argument that the first-degree murder statute was vague
because the definition of “premeditation” made first- and second-degree murder
indistinguishable. Id. at *3. The Kansas Supreme Court denied review.
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Sperry turned to the United States District Court, seeking federal habeas
relief. The court denied relief and this appeal followed.
D ISCUSSION
I. Standards of Review
We review the denial of federal habeas relief de novo, applying the same
standards used by the district court. Jackson v. Ray, 390 F.3d 1254, 1259
(10th Cir. 2004), cert. denied, 126 S. Ct. 61 (2005). Under the Anti-Terrorism
and Effective Death Penalty Act (AEDPA), a federal court may not grant habeas
relief on a claim adjudicated on the merits in state court, unless the state court
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” 28 U.S.C. §
2254(d)(1), or “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” id. § 2254(d)(2). Sperry
does not contend that the state court decisions suffer from unreasonable fact
determinations which would implicate § 2254(d)(2). Thus, we proceed under
§ 2254(d)(1).
A state-court decision is contrary to the Supreme Court’s clearly established
precedents if the decision applies a rule that contradicts the governing law set
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forth in Supreme Court cases, or if the decision confronts a factual scenario that is
materially indistinguishable from a Supreme Court case but reaches a different
result. Brown v. Payton, 125 S. Ct. 1432, 1438 (2005). A state-court decision
involves an unreasonable application of the Supreme Court’s clearly established
precedents if the decision applies Supreme Court precedent to the facts in an
objectively unreasonable manner. Id. at 1439.
II. Due Process - Vagueness
“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.” Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). “[T]he void-for-vagueness doctrine requires
that a penal statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.” Kolender v.
Lawson, 461 U.S. 352, 357 (1983). “The Constitution does not, however, impose
impossible standards of specificity,” and courts “should remain ever mindful that
general statements of the law are not inherently incapable of giving fair and clear
warning.” United States v. Platte, 401 F.3d 1176, 1189 (10th Cir. 2005)
(quotations and citations omitted).
“A statute can be void for vagueness not only on its face, but as applied, as
a result of ‘an unforeseeable and retroactive judicial expansion of narrow and
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precise statutory language.’” Id. (quotations omitted). Judicial review of a penal
statute, however, is generally “restricted to consideration of the statute as applied
in a particular case, provided the statute does not threaten to chill the exercise of
constitutional rights.” Id. at 1189-90 (quotations omitted).
Sperry cannot claim, of course, that Kansas’s first-degree murder statute
chills constitutionally protected conduct. Thus, we examine the statute only as
applied here. AEDPA’s deferential standard of review controls our examination,
as the Kansas Court of Appeals decided the vagueness issue on the merits, albeit
in summary fashion, see Goss v. Nelson, 439 F.3d 621, 635-36 (10th Cir. 2006)
(“In the context of applying 28 U.S.C. § 2254(d), our focus is on whether the
result reached by the state court contravenes or unreasonably applies clearly
established federal law, not on the extent of the reasoning followed by the state
court in reaching its decision.”).
As noted above, whether an intentional killing statutorily qualifies as
first- or second-degree murder depends on whether the killing was premeditated.
Compare Kan. Stat. Ann. § 21-3401(a) (first-degree murder requires a
premeditated, intentional killing) with id. § 21-3402(a) (second-degree murder
requires an intentional killing). At trial, the jury was instructed that Sperry was
guilty of first-degree murder if he “intentionally killed Lonnie Mallicoat . . . with
premeditation.” Twenty-Ninth Judicial District Court Case No. 95 CR 2246 at 91.
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“Premeditation” was defined as “to have thought over the matter beforehand.” Id.
at 97. “Intentionally” was defined as “conduct that is purposeful and willful and
not accidental.” Id. The jury was also instructed that Sperry could be found
guilty of the lesser included offense of second-degree murder if, among other
things, he “intentionally killed” Mallicoat. Id. at 93.
Sperry argues that defining “premeditation” as “to have thought over the
matter beforehand” renders the first-degree murder statute indistinguishable from
the second-degree murder statute. He reasons that such a definition makes
“premeditation” synonymous with “intentional” because “to intend to do
something is to think about it beforehand.” Aplt. Supp. Opening Br. at 16. Thus,
the argument is that all intentional killings are necessarily premeditated killings.
Two justices of the Kansas Supreme Court might agree. In a concurring opinion
in State v. Saleem, 977 P.2d 921, 931 (Kan. 1999) (Allegrucci, J., concurring),
one justice asked, “How does one intentionally kill another human being without
thinking about it beforehand?” Another justice adopted the same view in State v.
Pabst, 44 P.3d 1230, 1237 (Kan. 2002) (Lockett, J., concurring). Nevertheless, a
majority of the Kansas justices remain convinced that “to have thought over the
matter beforehand” “‘adequately conveys the concept that “premeditation” means
something more than the instantaneous, intentional act of taking another’s life. To
have thought the matter over beforehand means to form a design or intent to kill
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before the act.’” State v. Martis, 83 P.3d 1216, 1238 (Kan. 2004) (quoting State
v. Jamison, 7 P.3d 1204, 1212 (Kan. 2000)).
Under AEDPA’s standard of review, the Kansas Court of Appeals’ rejection
of Sperry’s vagueness argument neither contravened nor unreasonably applied
federal due process law. An ordinary person could discern a difference between a
killing that is committed intentionally and a killing that is committed intentionally
and with premeditation, if premeditation involves thinking a matter over
beforehand and intentionally involves purposeful, willful and non-accidental
conduct. Thinking something “over” indicates a quantum of
reflection—premeditation—absent from the deliberative process necessary to act
intentionally—“to act purposefully, willfully and not by accident.”
Nor would an ordinary person be unable to distinguish between first- and
second-degree murder in light of the evidence presented at Sperry’s trial.
Evidence that Sperry “thought over the matter beforehand,” rather than simply
acted purposefully, willfully and not by accident, included that (1) Sperry had
some involvement in drugs with Mallicoat, (2) Mallicoat owed Sperry money,
(3) Sperry believed that Mallicoat had told Brown he intended to use the gun to
kill Sperry, (4) Sperry possessed a shotgun shell engraved with Mallicoat’s name,
(5) Sperry and Mallicoat “had been arguing” about Brown immediately before the
shooting, Tr. at 325, and (6) Mallicoat “was trying to throw the car in reverse
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when he got shot,” id. at 293. The first-degree murder statute, as applied here
through the jury instructions to the evidence offered at trial, was sufficiently clear
and understandable. For the same reasons, we reject Sperry’s argument that the
statute encourages arbitrary and discriminatory enforcement.
Sperry next argues that the Kansas Court of Appeals acted contrary to, or
unreasonably applied, due process law in light of the prosecutor’s closing remark
that premeditation can develop rapidly. Specifically, the prosecutor remarked:
If you’ll notice, [the premeditation instruction] doesn’t say you have
to think it over a day or five hours beforehand. You just have to
think about it beforehand. Think over the matter beforehand. And
how long do you think it takes, Ladies and Gentlemen, that it takes
for someone to think something over? You’ve already - - as soon as I
said that, you started thinking about what I said, didn’t you? Which
means you have already premeditated on what I said, because that’s
all it takes to form a thought process, to think something over.
Tr. at 429-30. Sperry argues that this remark allowed the jury to find him guilty
simply “because he thought it first.” Aplt. Supp. Opening Br. at 14. But the
prosecutor stopped short of conveying a message that premeditation can be
virtually instantaneous, and therefore synonymous with “intentionally.” Cf. State
v. Morton, 86 P.3d 535, 542 (Kan. 2004) (holding that prosecutor’s closing
remark, “One squeeze of a trigger is all it takes [to premeditate],” violated due
process). We find no misapplication of due process law based on these remarks.
Finally, we reject Sperry’s argument that the jury equated “premeditation”
with “intentionally” based on three notes sent to the judge during deliberations:
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“What is a hung jury?” Tr. at 449, “What is reasonable doubt?” id. at 451, and “If
there is disagreement between jury members as to the verdict of murder in the first
degree or murder in the second degree-intentional, is the jury directed to select the
lesser offense,” id. at 453. The notes could just as likely have been sent due to
conflicting views of the evidence, rather than an inability to distinguish between
“premeditation” and “intentionally.”
III. Due Process - Impeachment Evidence
Because the Kansas state courts reached the substance of Sperry’s argument
that Brown’s impeachment violated his due process rights, we apply AEDPA
deference. At trial, Brown was cross-examined using statements she had made to
police after the shooting, apparently without a prior Miranda warning. 1 The
record contains no evidence of coercion or undue pressure, or any reason to doubt
that Brown’s statements to the police were voluntary. In fact, Brown submitted a
letter in post-trial proceedings denying that her statements and testimony were
untruthful or coerced. Sperry nonetheless argues that the use of impeachment
evidence obtained in violation of the witness’s Fifth Amendment rights violates
his due process rights at trial. We disagree.
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
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Sperry cites no relevant Supreme Court precedent in support of his
argument, and we are aware of none. 2 Indeed, the Supreme Court has held that
statements taken in violation of a defendant’s Fifth Amendment rights, while
inadmissible as part of the prosecution’s case-in-chief, are admissible to impeach
the defendant, so long as the statements were made voluntarily and without
coercion. See Oregon v. Hass, 420 U.S. 714, 722-24 (1975); Harris v. New York,
401 U.S. 222, 224-26 (1971). If a defendant’s voluntary and uncoerced statements
are admissible for impeachment purposes, we cannot discern how a witness’s
voluntary and uncoerced statements are any less tolerable. In both cases, the
limited admissibility of such evidence aids the jury in ascertaining the truth while
deterring the government from its extraction in violation of Miranda. See Hass,
420 U.S. at 722. Precluding a witness’s impeachment would disturb this
truth-seeking/deterrent balance and allow “the shield provided by Miranda . . . to
be perverted to a license to testify inconsistently, or even perjuriously.” Id.
Consequently, we decline to do so.
Our holding is not inconsistent with United States v. Gonzales, 164 F.3d
1285 (10th Cir. 1999). In Gonzales, the question was whether a witness’s
statements were the product of police coercion. Although the trial court had
2
Sperry cites James v. Illinois, 493 U.S. 307 (1990), in support of this
argument. In that case, however, the Supreme Court held that a defense witness
may not be impeached by evidence illegally obtained from the defendant. Id. at
308-09. Here, Brown was purportedly impeached with her own statements.
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suppressed the statements, on appeal we concluded that the statements had not
been coerced. We therefore held that the statements could be admitted at trial.
We did not have to reach the question of whether “defendants’ due process rights
would be implicated if the subject witness was coerced into making false
statements and those statements were admitted against defendants at trial.” Id. at
1289 (italics omitted). To the contrary, the effect of a witness’s impeachment on
the defendant’s due process rights was not at issue in Gonzales. In fact, the court
found that the witness’s statements were not the product of coercion, and therefore
admissible. That is the case here.
The Kansas state courts therefore neither contravened nor unreasonably
applied Supreme Court precedent in deciding Sperry’s impeachment issue.
IV. Assistance of Counsel
The Sixth Amendment’s counsel clause is violated when counsel performs
deficiently and prejudices the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). Sperry first argues that his trial counsel was ineffective for failing to
challenge the first-degree murder statute as vague. He raised this argument before
the Kansas Court of Appeals, which rejected it, believing that it had been
examined and eliminated on direct appeal. Sperry v. Kansas, 2003 WL 22119218,
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at *5. But the Kansas Supreme Court does not mention the argument in its
opinion. Consequently, our review is not constrained by AEDPA because there
has been no state court adjudication on the merits. Thus, we review the federal
district court’s resolution of the argument, applying de novo review for questions
of law and clear-error review for questions of fact. Cook v. McKune, 323 F.3d
825, 830 (10th Cir. 2003).
The district court ruled that Sperry could not show that he was prejudiced
by trial counsel’s failure to assert a vagueness challenge because the first-degree
murder statute was not vague. For the reasons discussed above in Part II, we
agree that the statute was not vague. Sperry’s counsel, therefore, was not
ineffective for failing to assert vagueness at trial. See Miller v. Mullin, 354 F.3d
1288, 1298 (10th Cir. 2004) (observing that “if the issue is meritless, its omission
will not constitute deficient performance” (quotation omitted)).
Sperry next argues that his appellate counsel was ineffective for failing to
argue on appeal to the Kansas Supreme Court that the first-degree murder statute
was vague and that Brown’s statements were coerced. “A claim of appellate
ineffectiveness can be based on counsel’s failure to raise a particular issue on
appeal, although it is difficult to show deficient performance under those
circumstances because counsel ‘need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to maximize the likelihood
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of success on appeal.’” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)
(quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). The Kansas Court of
Appeals does not appear to have reached this argument on the merits, and
therefore, AEDPA does not guide our consideration. We conclude that Sperry’s
appellate counsel, like his trial counsel, did not perform deficiently in omitting a
vagueness challenge to the first-degree murder statute. As for appellate counsel’s
performance on the coercion issue, we note that Mr. Sperry raised the issue to the
Kansas Supreme Court in a pro se brief. Consequently, appellate counsel’s failure
to also raise it would not have been prejudicial. Further, as discussed above in
Part III, the coercion issue was meritless, and therefore its omission by appellate
counsel was not deficient performance.
Sperry finally contends that appellate counsel was ineffective for failing to
raise on appeal trial counsel’s failure to argue vagueness and coercion. For the
reasons stated above, this contention also lacks merit.
C ONCLUSION
The judgment of the district court is AFFIRMED. Sperry’s motion to
dismiss his appellate counsel and to withdraw her brief is DENIED. 3
3
We direct the Clerk of this court to file the motion, which was provisionally
received on December 6, 2005.
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