Evans v. Gerry

United States Court of Appeals
For the First Circuit

No. 10-2133

CHAD EVANS,

Petitioner, Appellant,

v.

RICHARD M. GERRY, WARDEN, NEW HAMPSHIRE STATE PRISON,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Lipez and Howard,

Circuit Judges.

David M. Rothstein, Deputy Chief Appellate Defender, New
Hampshire Appellate Defender Program, for appellant.
Elizabeth C. Woodcock, Assistant Attorney General, Criminal
Justice Bureau, with whom Michael A. Delaney, Attorney General, was
on brief for appellee.

July 22, 2011
 BOUDIN, Circuit Judge. On December 21, 2001, a jury

convicted Chad Evans of reckless second-degree murder, five counts

of second-degree assault, endangering the welfare of a minor, and

simple assault--the murder charge for the death of his girlfriend's

21-month-old daughter Kassidy on November 9, 2000. See State v.

Evans, 839 A.2d 8, 10-12 (N.H. 2003). The evidence, recounted in

the just cited decision affirming the conviction, describes the

underlying facts, which have some bearing on Evans' ultimate state

sentence--the subject of the present federal case.

The state's evidence showed that Chad Evans had regularly

battered and eventually killed the young child. The autopsy

revealed that Kassidy had died from multiple blunt-force injuries

that had caused bleeding in her brain and abdomen. The medical

examiner said that in the hours before her death Kassidy had

received eight to ten blows to the head and at least two blows to

the abdomen from something like a fist or foot. Evans, 839 A.2d at

12. Evans lied about the death to the police, id., and at trial

sought unsuccessfully to cast the blame on a babysitter. Id. at

15.

At sentencing, the trial court ordered a term of 28 years

to life on the murder conviction, but imposed suspended sentences

on the remaining charges. See In re Evans, 908 A.2d 796, 799 (N.H.

2006). New Hampshire, then as now, had a procedure by which a

sentence could be modified by appeal to the Sentence Review

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Division of the Superior Court, but at the time of Evans' crime,

such appeals could be filed only by the defendant. Three and a half

months before Evans was sentenced, New Hampshire changed the law to

allow the state as well to apply for review of sentences. 2001

N.H. Laws 35; see also N.H. Rev. Stat. Ann. § 651:58 (2007).

Whichever side sought review, the review panel could raise or lower

the sentence or leave it alone. N.H. Rev. Stat. Ann. § 651:59

(2007).

The state filed a petition for sentence review, and after

further proceedings not germane to the present case, In re State,

837 A.2d 291, 292 (N.H. 2003), the division imposed consecutive

sentences of 5 to 10 years on one of the second degree assault

charges and 10 to 30 years on a second such charge. In re Evans,

908 A.2d at 799. This increased Evans' minimum term from 28 to 43

years. All of the charges on which the trial court had initially

suspended sentence entirely related to earlier abuse of Kassidy (or

her mother) in the months prior to her death.

On Evans' new appeal, the New Hampshire Supreme Court

affirmed the sentence increase, In re Evans, 908 A.2d at 798,

rejecting inter alia Evans' claim of a violation of the Ex Post

Facto clause of the U.S. Constitution. U.S. Const. art. I, § 10,

cl. 1. Evans petitioned the federal district court for habeas

relief, 28 U.S.C. § 2254 (2006), raising solely the Ex Post Facto

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claim.1 The district court dismissed the claim on summary judgment

but granted a certificate of appealability on one question:

Whether the application of RSA § 651:58, I to
Evans was contrary to clearly established
federal constitutional law as set forth in
Garner v. Jones, 529 U.S. 244 (2000), because
Garner is not limited to retroactive changes
in rules governing parole.

The district court denied a certificate of appealability

to Evans' second question: whether the decision "was an

unreasonable application of federal law, as set forth in Garner;

Dobbert v. Florida, 432 U.S. 282 (1977), and United States v.

Mallon, 345 F.3d 943 (7th Cir. 2003)." Ordinarily the distinction

between the "contrary to" question and the "unreasonable

application" question is easily made, but in this case Evans'

argument falls pretty close to the dividing line and, in fairness

to Evans, we treat both issues together.

A decision is "contrary to" governing Supreme Court

authority "if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases," Williams v.

Taylor, 529 U.S. 362, 405 (2000), or "if the state court confronts

a set of facts that are materially indistinguishable from a

decision of [the Supreme Court]" but reaches a different result.

1
Under the habeas statute, relief is available inter alia
where a state court 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 . . .
." 28 U.S.C. § 2254(d)(1).

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Id. at 406. Evans has conceded that no Supreme Court case has

materially indistinguishable facts. The "unreasonable application"

test applies where the facts are different but the state court

manifestly and unreasonably misapplies the relevant Supreme Court

case law. Id. at 412.

The classic Supreme Court formulation in Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798), described the four categories to which

the Ex Post Facto clause is directed:

1st. Every law that makes an action done
before the passing of the law, and which was
innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates a
crime, or makes it greater than it was, when
committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment,
than the law annexed to the crime, when
committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or
different, testimony, than the law required at
the time of the commission of the offence, in
order to convict the offender.

Id. at 390 (emphasis omitted). Literally, this formulation would

not apply to Evans. Although Evans argues that the statutory

change in question subjects a defendant to "greater punishment,"

the statutory punishment laid down by "the law annexed to the

crime" he committed has not been altered.

However, the Supreme Court has extended the Ex Post Facto

clause beyond the core protections in Calder v. Bull although with

caution. Under the third category, relating to increased

punishment, the Supreme Court focused primarily on substance

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changes that may not strictly increase the stated maximum or

minimum sentence for a crime but come pretty close: the Court

applied the clause to increases in state sentencing guidelines that

prescribe higher penalties, Miller v. Florida, 482 U.S. 423 (1987),

and to a statutory reduction in good-time credits that would

otherwise reduce the length of a sentence. Weaver v. Graham, 450

U.S. 24 (1981).

The statutory change here is a change not in the length

of sentences or guidelines but in procedures related to sentencing,

specifically, the alteration in the structure for review of

sentences. Still, the Supreme Court has said that, in some

circumstances and on some conditions, the Ex Post Facto clause

could apply to statutes adopting procedural changes. See Carmell

v. Texas, 529 U.S. 513, 539 (2000). Both of the leading cases

involved changes that altered or permitted alteration of the dates

for parole hearings. Morales v. Cal. Dep't of Corr., 514 U.S. 499

(1995); Garner v. Jones, 529 U.S. 244 (2000).

In neither case did the Court find such a violation,

rejecting the Ex Post Facto claim in Morales and vacating the lower

court's finding of such a violation in Garner and remanding for

further analysis. In each case the Court said that the question

was whether the procedural change imposed a "sufficient risk of

increasing the measure of punishment attached to the covered

crimes," Morales, 514 U.S. at 509, or a "significant risk of

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prolonging respondent's incarceration," Garner, 529 U.S. at 251.

This is the language on which Evans bases his appeal, but just how

the test is to be applied requires some attention to the facts of

the two Supreme Court cases.

In Morales, at the time of the crime a prisoner was

entitled to be considered for parole after a fixed period; and if

parole was denied, the board had to revisit the matter each year.

514 U.S. at 502-03. After Morales' crime, a statutory change

allowed the board after an initial denial to defer further

suitability hearings for up to three years in certain cases and

Morales' was among them. Id. at 503-04. The Ninth Circuit found

an Ex Post Facto violation and the Supreme Court reversed, finding

that the adverse effect of the change was speculative. Id. at 508-

09.

Then, in Garner, the Supreme Court remanded another such

case involving a regulatory change in the frequency of parole

reconsideration of life-sentenced defendants from three years to

eight. 529 U.S. at 247. The Eleventh Circuit had held this an Ex

Post Facto violation, distinguishing Morales as involving a more

speculative impact, but the Supreme Court found the showing

insufficient and remanded to consider its actual impact under the

"significant risk" test. Id. at 255.

On Evans' appeal from his increased sentence, the New

Hampshire Supreme Court noted Morales' "sufficient risk" test. In

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re Evans, 908 A.2d at 802. The state court pointed out that unlike

deferral of parole hearings which lengthens incarceration, the New

Hampshire statute merely alters who gets finally to decide what

initial sentence is reasonable, id. at 804, and it cited federal

case law upholding post-crime changes in the federal review

structure for initial sentences.2 Such a procedural change, it

concluded, did not violate the Constitution. Id.

Thus, the state court apparently thought that it was

respecting the Morales test while also finding that the test did

not require a result in Evans' favor. Right or wrong, this is

hardly a case where "the state court applie[d] a rule" different

than "the governing law set forth in [Supreme Court] cases,"

Williams, 529 U.S. at 405 (O'Connor, J.). That rubric requires a

failure to recognize the Supreme Court's test or, one where (even

if lip service is paid to the test), "the state court confronts a

set of facts that are materially indistinguishable from a decision

of this Court" but reaches a different result. Id. at 406.3

2
The federal circuit court opinions rejected Ex Post Facto
claims when Congress amended 18 U.S.C. § 3742(e) to allow de novo
review of the district court's application of sentencing
guidelines, see, e.g., United States v. Andrews, 447 F.3d 806, 809-
10 (10th Cir. 2006); United States v. Riley, 376 F.3d 1160, 1165
(D.C. Cir 2004); United States v. Mallon, 345 F.3d 943, 946-47 (7th
Cir. 2003).
3
Justice O'Connor emphasized at length that the "direct
conflict" prong depends on whether the state court properly
expressed the Supreme Court's rule and not on whether a federal
habeas court would have reached the same outcome under that rule.
529 U.S. at 406. The importance of the gloss is underscored by the

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 Whether the state court "unreasonably applied" the

Morales/Garner significant risk test might well appear to be a more

relevant and perhaps closer question in this case. In principle a

state court might echo the Supreme Court's language as to the rule

of law but, in fitting the rubric to different facts, reach a

result that was objectively unreasonable. Cf. Woodford v.

Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). While the

"unreasonably applied" test provides latitude, it cannot be

unlimited.

This takes us to the reasoning of the New Hampshire

Supreme Court. The federal circuit precedents it cited were

admittedly post-Morales decisions (see note 2, above) but they

concerned a shift in the final decision-making for both sides.

Here, the New Hampshire statute gave the prosecution a second

chance to seek the sentence it wanted. While this equalized the

position of both sides, most defendants would doubtless prefer that

they alone had the right to appeal from an initial sentence--so the

statute does, in some sense, "disadvantage" defendants. Weaver,

450 U.S. at 29.

But many acts of the legislature occurring after a crime

was committed could increase both the chance of a conviction and

the risk of more punishment. Merely to boost the budget of the

fact that, on the scope of the habeas statute, the separate opinion
of Justice O'Connor commanded five votes, supplanting on this issue
Justice Stevens' opinion delivering the judgment. Id. at 402-13.

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prosecutor's office and supporting forensic resources means that

there is some chance that more defendants will be tried and on more

serious charges and will in some cases likely receive longer

sentences. "Disadvantage" is a minimum condition but, based on the

authorities Evans himself invokes, there must at least be a

substantial or significant risk.

Whether the New Hampshire change in this case constituted

a "substantial risk" of a higher sentence turns very much on the

time as of which that question is asked. Any procedural change in

a law affecting criminal trials or sentences can after the fact

prove to have had an adverse effect on the defendant in a

particular case--as the New Hampshire law here clearly did on

Evans. Morales himself had his opportunity to get parole deferred,

Morales, 514 U.S. at 503, but the Supreme Court emphasized that

(judged in advance) Morales and others like him faced a relatively

low risk of a substantial increase in their incarceration. Id. at

510-12.

Absent this kind of ex ante analysis, any legislative

change in procedural or evidentiary law that turned out

incidentally to work against a defendant would be condemned. Every

trial would have to use a set of procedural and evidence rules not

determined by the date of the trial, as is ordinarily done, but by

the date of the crime committed by the particular defendant--who

might, of course, be on trial for multiple crimes committed at

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different times. The "significant risk" test works to avoid this

outcome by filtering out changes--like the parole deferral change

in Morales--that do not pose the kind or degree of risk against

which the Ex Post Facto clause was meant to guard.

The usual perspective from which Ex Post Facto analysis

views statutory changes is that of the time of the criminal act,

Weaver, 450 U.S. at 28, 30, and the usual question is what an

actor's reasonable expectations would be. The latter may be a

fanciful question since most defendants do not plan their crimes

with close attention to the criminal code and its penalties, United

States v. Demaree, 459 F.3d 791, 793 (7th Cir. 2006); but the

insistence on the protection has deeper roots in our conception of

"fair warning." Weaver, 450 U.S. at 28-30; Miller v. Florida, 482

U.S. at 430. And yet not every change in procedure or evidence

occurring after the crime offends the sense of fairness.

From the ex ante standpoint, the New Hampshire statutory

change could affect any defendant but in general would hardly pose

a significant risk. Trial judges usually enjoy great latitude in

exercising their discretion, see N.H. Rev. Stat. Ann. §§ 651:1-70,

and--where the sentence is within the trial court's discretion--

reversals are ordinarily rare unless the trial judge has imposed a

patently unreasonable sentence. See State v. Kelly, 986 A.2d 575,

576 (N.H. 2009) ("We review a trial court's imposition of a

deferred sentence for an unsustainable exercise of discretion.").

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 Evans, who bears the burden of proof in establishing a

violation of the Ex Post Facto clause, apparently presented no

evidence below or in state court to suggest that the Sentence

Review Division commonly raises or lowers sentences. The New

Hampshire Sentence Review Division of the Superior Court is

comprised of three trial judges, N.H. Rev. Stat. Ann. § 651:57

(2007), and it is a fair supposition that the review procedure was

primarily designed to provide a consistent check on patent outlier

sentences by subjecting them to the scrutiny of other trial judges

who regularly deal with such cases.

In all events, Evans' own situation hardly suggests that

the sentences are routinely adjusted. Evans was initially given

only suspended sentences for all of his brutal acts toward a

helpless infant of which at least a number were committed on

earlier occasions prior to the murder, and the Sentence Review

Division simply unsuspended some of these suspended sentences.

Viewing the matter prior to the commission of the offense, the

expectation of one about to commit a crime would be a reasonable

sentence--just what the New Hampshire amendment aims to achieve.

The state court in this case could have decided this case

differently by saying (for example) that the statutory change does

potentially "disadvantage" defendants and entails some "risk" of an

increase in sentence. But circuit courts that reasoned in this

mechanical fashion in Morales and Garner were reversed; and it is

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clear enough from the outcome in both cases--especially Morales

where the parole date was deferred--that more subtle weighing of

risk is required.

Anyway, to ask whether the state court, or we ourselves

on de novo review, could reach a different result is to ask the

wrong question. The current habeas statute was intended by

Congress to narrow the occasions for collateral attacks, see

Williams, 529 U.S. at 404, and that decision makes clear that the

question for us is not whether we would necessarily have reached

the same result but whether the state court misstated the law or

reached an unreasonable result in its application. As we said in

Brown v. Ruane, 630 F.3d 62, 69 (1st Cir. 2011), quoting in part

Wright v. Van Patten, 552 U.S. 120, 128 (2008):

If Supreme Court cases 'give no clear answer
to the question presented,' a state court's
resolution of a constitutional question may
not serve as a basis for habeas relief.

Here, no one can be sure what the Supreme Court would do

in a case involving Ex Post Facto doctrine in this new and

different context. Modern Ex Post Facto doctrine, extending

protection beyond enlargement of crimes or of statutory ranges for

punishment, is more the product of judicial precedent than of

express constitutional language or history. But in Evans' case,

the habeas standards for overturning the state court have not been

met.

Affirmed.

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