Wallin v. Miller

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 9, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
OLOYEA D. WALLIN,

Petitioner - Appellant,

v. No. 15-1299
(D.C. No. 1:13-CV-01867-MSK-CBS)
MICHAEL MILLER, Warden of Crowley (D. Colo.)
County Correctional Facility,

Respondent - Appellee.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________

This order is entered to follow up on our May 12, 2016 order, which was entered

both in this case and in number 15-1301, also captioned as Wallin v. Miller. The May 12

order denied petitioner’s request for a certificate of appealability on all claims applicable

to this 28 U.S.C. § 2241 proceeding. As a result, this proceeding should have been

terminated when the May 12 order was entered, but due to a clerical error it was not.

This order supplements our original order and acts to deny Mr. Wallin’s certificate

of appealability and to dismiss this matter. We incorporate the May 12 order by reference

and attach it to this order.

Although this case termination order is effective May 12, 2016, we will grant the

petitioner’s “Motion for extension of time to file Petition for Panel Rehearing and
Rehearing in Banc.” Any petition for rehearing from the petitioner addressing this

particular case must be filed on or before October 7, 2016. Any pleading filed should be

clearly marked with the case number for this matter.

Entered for the Court
ELISABETH A. SHUMAKER, Clerk

by: Lara Smith
Counsel to the Clerk

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FILED
United States Court of
UNITED STATES COURT OF APPEALS Appeals
Tenth Circuit
TENTH CIRCUIT
May 12, 2016
Elisabeth A. Shumaker
OLOYEA D. WALLIN, Clerk of Court

Petitioner - Appellant,

v. Nos. 15-1299 & No. 15-1301
(D.C. Nos. 1:13-CV-01867-MSK-CBS
and 1:14-CV-01968-MSK)
MICHAEL MILLER, Warden of
Crowley County Correctional
Facility; et al.,

Respondents - Appellees.

ORDER

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.

While on parole, Mr. Oloyea D. Wallin was convicted in a Colorado

state court of second-degree assault and sentenced to fourteen years in

prison. He filed one habeas petition under 28 U.S.C. § 2254 and another

under 28 U.S.C. § 2241. The federal district court rejected all of the claims

in both petitions, and Mr. Wallin wants to appeal. We can entertain an

appeal only if Mr. Wallin is entitled to a certificate of appealability. See

28 U.S.C. § 2253(c)(1)(A).
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In the first habeas petition, Mr. Wallin invokes § 2254 and alleges

numerous errors. We grant Mr. Wallin a certificate of appealability on five

of these claims of error:

1. Error in allowing expert testimony on domestic violence.

2. Error in allowing use of unsubstantiated testimony by Mr.
Lehmann that he had spoken to Mr. Wallin.

3. Prosecutorial misconduct.

4. Error in the use of the alleged victim’s confidential medical
information.

5. Abuse of subpoena power.

We decline to grant Mr. Wallin a certificate of appealability on his

remaining § 2254 claims, in which he alleges

• error in allowing introduction of a recorded telephone
message into evidence,

• error in denying Mr. Wallin pre-sentence confinement
credit,

• error in allowing use of the alleged victim’s involuntary
statements,

• ineffective assistance of counsel,

• error in allowing the jury to consider the victim’s
affliction with battered-person syndrome without any
expert evaluation,

• error in allowing a prosecution witness to testif y after
observing every prior witness testif y,

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• insufficient evidence of guilt,

• error in striking of a venireperson based on minority
status,

• inadequacy of the jury instructions,

• irregularities in the preliminary hearing,

• failure to dismiss the Information even though it was
based on inadmissible statements,

• imposition of an excessive sentence based on
inadmissible evidence,

• violation of the U.S. Constitution in applying a Colorado
statute,

• error in denying a postconviction hearing,

• error by the trial judge in declining to recuse,

• error in allowing testimony that Mr. Wallin had been in
prison,

• inadequacy of the state postconviction review process,
and

• error in allowing introduction of a witness’s advice to the
jury.

In the second habeas petition, Mr. Wallin invokes § 2241 and alleges

• intentional use of false information to deny parole to Mr.
Wallin and

• inadequate staffing of the parole hearing.

We deny a certificate of appealability on all of these claims.

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I. Mr. Wallin’s § 2254 Petition

The district court addressed the merits of only three of Mr. Wallin’s

claims under 28 U.S.C. § 2254. The district court determined that Mr.

Wallin’s other habeas claims were subject to procedural default or were

not cognizable in a federal habeas action.

We believe that reasonable jurists could debate whether Mr. Wallin

procedurally defaulted on five of these claims:

1. error in allowing expert testimony on domestic violence,

2. error in allowing use of unsubstantiated testimony by Mr.
Lehmann that he had spoken to Mr. Wallin,

3. prosecutorial misconduct,

4. error in the use of the alleged victim’s confidential medical
information, and

5. abuse of subpoena power.

On these claims, we grant Mr. Wallin’s request for a certificate of

appealability. For Mr. Wallin’s other claims under § 2254, however, all

reasonable jurists would view the district court’s analysis as undebatable.

Thus, Mr. Wallin is not entitled to a certificate of appealability on the

other claims.

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A. Mr. Wallin must show a reasonably debatable appeal point.

To obtain a certificate of appealability, Mr. Wallin must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Mr. Wallin can meet this standard only “by demonstrating

that jurists of reason could disagree with the district court’s resolution of

his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

B. Mr. Wallin’s claims are not reasonably debatable regarding
the improper introduction of a recorded telephone message,
the state trial court judge’s failure to recuse herself, and the
erroneous calculation of credits for pretrial confinement.

Mr. Wallin alleges error in allowing introduction of a recorded

telephone message, failure of the trial judge to recuse herself, and

miscalculation of credits for pretrial confinement. These challenges are not

reasonably debatable.

1. Mr. Wallin is not entitled to appeal the introduction of the
recorded telephone message.

While Mr. Wallin was paroled for a prior offense, he allegedly

assaulted his ex-wife. After learning of the incident, a parole officer

directed Mr. Wallin to go to a police station and speak with a detective.

Mr. Wallin did not visit the station. Instead, he called the station and left a

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recorded message for the detective. In his message, Mr. Wallin said,

“[T]hey were trying to make it domestic violence.” Mr. Wallin explained

that (1) his ex-wife’s injuries were the result of an accident and (2) he

wanted to resolve the matter.

Over Mr. Wallin’s objection, the state trial court allowed the

prosecution to use the recording, holding that Mr. Wallin’s statements were

voluntary and that the parole officer had not compelled Mr. Wallin to

incriminate himself. The state appeals court affirmed.

Mr. Wallin challenges the rulings, contending that

• he was compelled to provide the statement and

• his parole status rendered the exchange a custodial
interrogation, triggering his Fifth Amendment privilege
against self-incrimination.

All reasonable jurists would reject these contentions.

First, under our precedents, the statements were clearly voluntary.

Although the exchange was initiated by a parole officer, the parole

officer’s instruction is not considered coercive. See Minnesota v. Murphy,

465 U.S. 420, 427 (1984) (stating that a probation officer’s authority to

compel a parolee’s attendance is not inherently coercive). Mr. Wallin was

not questioned; he simply left a message for the police department and the

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substance of his statements was not directed or suggested by a law

enforcement officer. As a result, Mr. Wallin’s statements were voluntary.

Similarly, no jurist could reasonably consider the parole officer’s

instruction as a violation of Mr. Wallin’s right against self-incrimination.

Mr. Wallin was not “in custody” when he made the potentially

incriminating statements. Thus, the parole officer had no constitutional

obligation to warn Mr. Wallin against self-incrimination. Roberts v. United

States, 445 U.S. 552, 560-61 (1980).

Mr. Wallin has not shown a violation of his rights under the Fifth and

Fourteenth Amendments, and no reasonable jurist would disagree with the

district court’s legal analysis regarding introduction of the recorded

telephone message. Thus, Mr. Wallin is not entitled to a certificate of

appealability on this claim.

2. Mr. Wallin is not entitled to appeal the trial judge’s refusal
to recuse herself.

At trial, Mr. Wallin moved for disqualification of the trial judge,

arguing that she had displayed bias by delaying the proceedings. This

motion was denied, and the ruling is not subject to reasonable debate.

Due process requires “an absence of actual bias in the trial of cases.”

In re Murchison, 349 U.S. 133, 136 (1955). A judge’s recusal may be

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appropriate when the source of the judge’s bias arises from an extrajudicial

source. Liteky v. United States, 510 U.S. 540, 554-55 (1994). Rulings,

however, do not ordinarily provide grounds for recusal. See id. at 555

(“[J]udicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to . . . the parties, or their cases,

ordinarily do not support a bias or partiality challenge.”). Recusal is

necessary only when judges display bias in their rulings that is “so extreme

as to display clear inability to render fair judgment.” Id. at 551.

Mr. Wallin relies on the state trial judge’s rulings delaying the trial.

But even if the trial judge had erred in delaying the trial, the rulings

allowing the delays were not sufficiently extreme to require the judge’s

recusal or to constitute a denial of due process. Only seven months elapsed

between Mr. Wallin’s arraignment and his sentencing. 1 Cf. Doggett v.

United States, 505 U.S. 647, 652 (1992) (holding that an 8.5-year delay

between an arrest and indictment did not deprive the defendant of due

process).

1
A postconviction matter was delayed six years. But that delay cannot
show the judge’s need to recuse prior to entry of a judgment.

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Because no reasonable jurist could debate the validity of the due

process claim, Mr. Wallin is not entitled to a certificate of appealability to

appeal the trial judge’s denial of the motion to recuse.

3. Mr. Wallin is not entitled to appeal the calculation of
credits for pretrial confinement.

During the time that Mr. Wallin spent in custody awaiting sentencing

on an assault charge, he was still on parole for an earlier offense. The state

court applied confinement credit for that time to his earlier sentence but

not to his new sentence for the assault. This allocation of credit was

required under Colorado law. Colo. Rev. Stat § 18-1.3-405.

Mr. Wallin moves for habeas relief under § 2254, claiming that he

could not post bail and arguing that application of the Colorado statute

required him to serve more time than another prisoner who had been able

to post bail. According to Mr. Wallin, the difference in prison time

resulted in a denial of equal protection.

Mr. Wallin’s challenge is not cognizable under § 2254 because the

calculation of credits did not affect the validity of his conviction or

sentence. Typically we consider this kind of challenge under § 2241. See,

e.g., Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002). But even if we

were to recharacterize the claim as one brought under § 2241, Mr. Wallin

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could appeal only if we issue a certificate of appealability. Montez v.

McKinna, 208 F.3d 862, 867-69 (10th Cir. 2000).

We rejected a virtually identical claim in Vasquez v. Cooper, 862

F.2d 250, 251-55 (10th Cir. 1988). Under Vasquez, Mr. Wallin’s claim is

not reasonably debatable. Thus, we decline to issue a certificate of

appealability on this claim.

C. Mr. Wallin is entitled to appeal the disposition of his
challenges to his conviction involving introduction of expert
testimony, involuntariness of the alleged victim’s
statements, confidentiality of medical information, abuse of
subpoena power, and prosecutorial misconduct.

Mr. Wallin also sought habeas relief under § 2254 based on alleged

errors involving

• introduction of an expert witness’s opinion testimony on
the impact of domestic violence,

• introduction of involuntary statements by the alleged
victim,

• misconduct by the prosecutor,

• use of the alleged victim’s confidential medical
information, and

• abuse of subpoena power.

The federal district court held that Mr. Wallin had procedurally defaulted

on these claims. In light of this ruling, we can grant a certificate of

appealability only if reasonable jurists could debate (1) the applicability of
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procedural default and (2) the merits. See Frost v. Pryor, 749 F.3d 1212,

1230 n.11 (10th Cir. 2014) (procedural default); Slack v. McDaniel, 529

U.S. 473, 484 (2000) (merits). Given the sparse record and insufficient

adversarial briefing, we believe that the issues involving procedural

default and the merits are reasonably debatable.

After Mr. Wallin was convicted, he filed two motions in state court:

a motion for a new trial and a motion for postconviction relief. Under state

law, the court would ordinarily bear an obligation to deny postconviction

relief if the same claim (1) had been previously rejected in a direct appeal

or postconviction proceeding or (2) could have been presented in a prior

appeal or postconviction proceeding. Colo. R. Crim. P. 35(c)(3)(VI)-(VII).

Exceptions exist, but none would even arguably apply here. See Colo. R.

Crim. P. 35(c)(3)(VI)(a)-(b), VII(a)-(e).

In light of the state law governing postconviction relief, a federal

appellate panel considering procedural default would need to begin with

the state appellate court’s rationale. The state appeals court held that under

state law, the motion for a new trial constituted a motion for

postconviction relief. On that basis, the state appeals characterized Mr.

Wallin’s arguments as “successive” on the ground that they were or could

have been presented earlier in the direct appeal or the motion for a new
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trial. Thus, the state appeals court declined to consider the merits of any of

the arguments presented in Mr. Wallin’s subsequent motion for

postconviction relief.

In light of the state appeals court’s characterization of Mr. Wallin’s

arguments as successive, the federal district court concluded that Mr.

Wallin had procedurally defaulted on the habeas claims because they were

based on an adequate and independent state procedural ground. This

conclusion does not distinguish between two types of successive claims:

(1) those that had been asserted earlier and (2) those that could have been

presented earlier.

The state appeals court’s refusal to consider the postconviction

claims could have been based on the fact that these claims

• had already been decided in connection with the direct
appeal or the motion for a new trial or

• could have been presented earlier but weren’t.

But which was it? To the state appeals court, the difference would not have

mattered because either way, Mr. Wallin’s claims would not have been

cognizable in postconviction proceedings. For purposes of federal habeas

relief, however, the difference might be significant because the habeas

claims would not be procedurally barred if they had already been presented

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in the motion for a new trial. See Cone v. Bell, 556 U.S. 449, 467 (2009)

(“When a state court refuses to readjudicate a claim on the ground that it

has been previously determined, the court’s decision . . . provides strong

evidence that the claim has already been given full consideration by the

state courts and thus is ripe for federal adjudication.” (emphasis in

original)); see also Davis v. Workman, 695 F.3d 1060, 1072 (10th Cir.

2012) (“A state court’s invocation of res judicata does not . . . create a

procedural bar to relief under § 2254.”).

The federal district court did not distinguish between Mr. Wallin’s

claims that were raised earlier and those that could have been raised

earlier, but we must draw this distinction to determine whether Mr. Wallin

is entitled to an appeal.

For example, it is apparent from the record that Mr. Wallin’s direct

appeal included a challenge to the admissibility of expert testimony on

domestic violence. This issue was properly raised in the direct appeal, and

the Colorado Court of Appeals decided this issue on the merits. See R. at

73-77 (opinion); id. at 354-59 (Mr. Wallin’s opening brief in the direct

appeal). Thus, on this claim, the federal district court’s invocation of

procedural default is at least reasonably debatable.

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The same is true of Mr. Wallin’s habeas claims involving

involuntariness of the victim’s statements, use of the victim’s confidential

medical information, abuse of subpoena power, and prosecutorial

misconduct. The Colorado Court of Appeals rejected these claims in Mr.

Wallin’s postconviction appeal, reasoning that the gist of these claims had

already been decided through the motion for a new trial. R. at 59-60; see

also id. at 60 (explaining that some of the arguments for Mr. Wallin’s

prosecutorial misconduct claim had been previously raised, but the

“remaining arguments” for this claim had not been previously raised). In

these circumstances, reasonable jurists could debate the federal district

court’s finding of a procedural default.

To obtain a certificate of appealability, Mr. Wallin must also show

that reasonable jurists “would find it debatable whether the petition states

a valid claim of the denial of a constitutional right.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). But we have little information with which to

assess the merits of these habeas claims. For example, our record on appeal

does not include the trial transcript or meaningful adversarial briefing on

Mr. Wallin’s habeas claims.

When the record is too sparse for meaningful evaluation, a

reasonable jurist might conclude that the habeas claims are at least
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debatable. As a result, we grant a certificate of appealability on Mr.

Wallin’s challenges to the introduction of expert testimony, introduction of

the alleged victim’s statements, use of confidential medical information,

use of subpoena power, and conduct of the prosecutor.

D. Mr. Wallin is not entitled to appeal the remaining
challenges to his conviction under § 2254.

In the § 2254 habeas petition, Mr. Wallin also alleges

• error in allowing introduction of unsubstantiated
testimony by Mr. Lehmann that he had spoken to Mr.
Wallin,

• ineffective assistance of counsel,

• error in allowing the jury to consider the victim’s
affliction with battered-person syndrome without any
expert evaluation,

• error in allowing a prosecution witness to observe the
trial proceedings before testif ying,

• insufficient evidence of guilt,

• striking of a venireperson based on minority status,

• inadequacy of the jury instructions,

• irregularities in the preliminary hearing,

• failure to dismiss the Information even though it was
based on inadmissible statements,

• imposition of an excessive sentence,

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• violation of the U.S. Constitution in applying a Colorado
statute,

• violation of the U.S. Constitution in allowing
introduction of testimony that Mr. Wallin had been in
prison, and

• error in allowing a witness to advise the jury.

The federal district court regarded these habeas claims as procedurally

barred. In doing so, the court again did not distinguish between

• Mr. Wallin’s claims that were rejected in state
postconviction proceedings because the claims had been
decided earlier and

• Mr. Wallin’s claims that were rejected in state
postconviction proceedings because the claims could have
been presented earlier.

See Colo. R. Crim. P. 35(c)(3)(VI)-(VII). Nonetheless, all reasonable

jurists would agree with the federal district court because these claims

were not timely raised in state court.

Even now, Mr. Wallin has never presented the state appeals court

with his claims involving

• inadequacy of the jury instructions,

• constitutional error in applying a Colorado statute,

• error in allowing introduction of testimony by Mr.
Lehmann that he had spoken to Mr. Wallin, and

• imposition of an excessive sentence.

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These claims were omitted in the direct appeal, the motion for a new trial,

and the motion for postconviction relief.

Mr. Wallin could theoretically return to state district court to exhaust

these claims. If he did so, however, the state courts would decline to

consider the claims because they could have been presented earlier. See

Colo. R. Crim. P. 35(c)(3)(VII). In these circumstances, we would consider

the habeas claims subject to an “anticipatory procedural default.” See

Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)

(“‘Anticipatory procedural bar’ occurs when the federal courts apply

procedural bar to an unexhausted claim that would be procedurally barred

under state law if the petitioner returned to state court to exhaust it.”).

To avoid the anticipatory procedural default, Mr. Wallin would need to

show either (1) “cause” for failing to present the claims in earlier

proceedings and resulting “prejudice” or (2) a fundamental miscarriage of

justice based on a credible showing of actual innocence. Frost v. Pryor,

749 F.3d 1212, 1231 (10th Cir. 2014).

Mr. Wallin has not attempted to make either showing. Thus, any

reasonable group of appellate jurists would reject Mr. Wallin’s claims

based on anticipatory procedural default. In these circumstances, we

decline to issue a certificate of appealability on Mr. Wallin’s claims
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involving inadequacy of the jury instructions, constitutional error in

application of a Colorado statute, error in allowing testimony by Mr.

Lehmann about a conversation with Mr. Wallin, and imposition of an

excessive sentence.

We can tell from the record that the state appeals court reasoned that

Mr. Wallin could have presented the remainder of his § 2254 claims earlier

but didn’t. For example, the Colorado Court of Appeals held that

• the ineffective assistance claim could have been brought
in Mr. Wallin’s motion for a new trial and

• Mr. Wallin could have argued in the direct appeal that the
evidence of guilt had been insufficient, the prosecutor
had improperly stricken a venireperson based on minority
status, the preliminary hearing had involved
irregularities, and the Information had been deficient.

R. at 59, 61, 63.

E. Mr. Wallin is not entitled to appeal on his habeas claims
involving deficiencies in the state postconviction
proceedings.

Mr. Wallin alleges irregularities in the state postconviction

proceedings. But our precedents are clear: challenges involving state

postconviction proceedings are not cognizable in a federal habeas action

because challenges of this type do not involve a constitutional violation in

the underlying conviction. See Hopkinson v. Shillinger, 866 F.2d 1185,

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1219 (10th Cir. 1989) (“The presence of a procedural deficiency in a

state’s scheme for postconviction relief . . . does no violence to federal

constitutional rights.”), overruled on other grounds as stated in Phillips v.

Ferguson, 182 F.3d 769, 772-73 (10th Cir. 1999).

Under these precedents, no reasonable jurist would credit Mr.

Wallin’s challenge to the denial of postconviction relief. As a result, Mr.

Wallin is not entitled to a certificate of appealability on his habeas claims

involving irregularities in the state postconviction proceedings.

II. Mr. Wallin’s § 2241 Petition

Mr. Wallin also brings challenges under 28 U.S.C. § 2241, arguing

that his sentence was improperly executed. According to Mr. Wallin, the

Parole Board

• denied him parole and community-corrections placement
based on incorrect information and

• staffed his parole hearing with only a single member of
the Parole Board.

We must again determine if these challenges are reasonably debatable. See

28 U.S.C. § 2253(c)(2). In our view, they are not.

If Mr. Wallin were allowed to appeal, the appellate panel would

engage in de novo review of the federal district court’s legal analysis.

Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).

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In the § 2241 petition, Mr. Wallin requests removal of erroneous

information from his file, a new parole hearing, and reconsideration of the

parole board’s denial of community placement. But before these claims

were adjudicated in federal district court, Mr. Wallin obtained parole. With

the grant of parole, the claims in Mr. Wallin’s § 2241 petition became

moot.

An appeal ordinarily becomes moot under Article III of the U.S.

Constitution when a petitioner no longer suffers “actual injury that can be

redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v.

Heckler, 464 U.S. 67, 70 (1983). An exception exists when the challenged

sentence creates collateral consequences. Rhodes v. Judiscak, 676 F.3d

931, 933 (10th Cir. 2012).

Even if Mr. Wallin were to prevail on the merits, he has already

obtained his requested relief and we cannot shorten his parole term in an

attempt to “make up” for a longer term of incarceration. See id. Because

Mr. Wallin’s unexpired sentence cannot be reduced or eliminated by a

ruling in his favor, his habeas claims are now moot.

Mr. Wallin contends that the allegedly erroneous information

remaining in his prison record represents an ongoing injury because he may

eventually return to prison and, if he does, that information would again be
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held against him. But that risk is speculative; we assume that Mr. Wallin

will not re-offend. Id., Spencer v. Kemna, 523 U.S. 1, 16 (1998). If Mr.

Wallin does not return to criminal activity and return to prison, he will not

face any consequences as a result of the alleged errors contained in his

prison file.

Because the § 2241 claims are moot, we conclude that no reasonable

jurist would entertain these claims. Therefore, Mr. Wallin is not entitled to

a certificate of appealability on the claims in his § 2241 petition.

III. Disposition

We grant a certificate of appealability on Mr. Wallin’s claims

involving the admissibility of expert testimony, involuntariness of his

statements, use of confidential medical information, abuse of subpoena

power, and prosecutorial misconduct. We direct the respondent to file a

response brief on these claims within 21 days. With the response brief, the

respondent shall supplement the record on appeal with all material

evidence relating to these claims.

We deny a certificate of appealability on all of Mr. Wallin’s other

claims.

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IV. Motion for Leave to Proceed in Forma Pauperis

Mr. Wallin seeks leave to proceed in forma pauperis. This request is

granted.

Entered for the Court

Robert E. Bacharach
Circuit Judge

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