Ward v. Williams

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 26 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ROBERT ALLEN WARD,

Petitioner-Appellant,
v.
No. 99-2309
JOE WILLIAMS, Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 96-CV-1470-LH/LFG)

Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico,
for Petitioner-Appellant.

William McEuen, Assistant Attorney General, Santa Fe, New Mexico, for
Respondent-Appellee.

Before EBEL, PORFILIO, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Petitioner-Appellant Robert Allen Ward appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas petition alleging that his state court sentence

violated the Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution. This is the second appeal we have heard regarding Ward’s § 2254

petition. We remanded the first appeal to the district court so that it could clarify

the uncertainty as to “the exact parameters of the sentences imposed by the state

district court.” Ward v. Williams, No. 97-2041, 1998 WL 94608, at *3 (10th Cir.

Mar. 5, 1998) [hereinafter Ward I]. On remand, the magistrate judge wrote a

detailed, well-documented opinion, recommending that Ward’s habeas petition be

dismissed with prejudice [hereinafter 1999 Magistrate’s Recommendation]. The

district court adopted the magistrate’s recommendation. Additionally, while on

appeal to this court, the state trial court clarified one of its rulings, and this

clarification moots one of the issues presented to us. See Order Clarifying

Corrected Judgment, Sentence, and Commitment to the Corrections Department as

to CR 92-484-3 and Order Revoking Probation as to CR 91-103-3, et al., No. CR

91-103-3, 91-326-3, 91-327-3, 91-328-3, 91-329-3, 91-330-3, 91-331-3, 91-198-3,

& 92-484-3, at 2 (August 9, 2000) [hereinafter 2000 Clarifying Order]. We

exercise jurisdiction pursuant to 28 U.S.C. § 2253 and AFFIRM.

BACKGROUND

A. 1991 State Court Sentence

From about November 1990 through February 1991, Robert Ward

committed numerous felonies under New Mexico law. In July 1991, Ward pled

guilty to a number of these felonies. On September 13, 1991, a New Mexico

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court sentenced Ward on eight different criminal cases: CR-91-103-1 (commercial

burglary et al.), CR-91-326-1 (commercial burglary), CR-91-327-1 (residential

burglary), CR-91-328-1 (receiving stolen property), CR-91-329-1 (escape from

jail), CR-91-330-1 (auto burglary), CR-91-331-1 (residential burglary), and

CR-91-198-3 (trafficking in controlled substances) [hereinafter 1991 Sentence].

Two of the eight cases, CR-91-103 and CR-91-326, contained multiple counts –

CR-91-103 had eight counts and CR-91-326 had three counts.

The court sentenced Ward to eighteen months imprisonment on each of the

eight counts contained in CR-91-103, and ordered that the eight counts be served

concurrently. 1 Thus, the total sentence under CR-91-103 was eighteen months.

The judge ordered that each of the sentences from the seven remaining cases be

served consecutively. All told, the 1991 Sentence provided for a maximum

exposure of 22.5 years, 364 days. 2 The 1991 Sentence was silent as to any period

of parole. The court suspended all the sentences and placed Ward on probation

for five years.

The judge also ordered the three counts under CR-91-326 to be served
1

concurrently.
2
In a handwritten note at the bottom of the 1991 Sentence, the court
erroneously noted, “The gross effect of this sentence is 36 years and 364 days in
prison suspended on conditions as stated in favor of five years probation . . . .”
The court’s note would have been correct had it run all the counts in 91-103 and
91-326 consecutively. Since, however, it ran those counts concurrently, Ward’s
initial exposure was 22.5 years, 364 days.

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B. 1992 State Court Sentence

While on probation, Ward committed more crimes. Again, he pled guilty.

On November 2, 1992, the state court held a sentencing hearing, at which it

sentenced Ward on two counts (count 1 and count 3) in a new criminal case (CR-

92-484) and also sentenced him for violating the conditions of probation from the

1991 sentence. The written sentencing order was filed December 14, 1992

[hereinafter 1992 Sentence].

For CR-92-484, the court sentenced Ward as follows: On count 1

(distribution of marijuana to a minor), Ward received three years imprisonment,

enhanced by one year for being an habitual offender, for a total of four years in

prison. Imprisonment was to be followed by one year of parole. On count 3

(felon in possession of a firearm), Ward was sentenced to eighteen months

imprisonment, followed by one year of parole. From the bench, the court (orally)

ordered that the sentences on these two counts were to run consecutively. The

(written) 1992 Sentence, however, did not mention whether the sentences on these

two counts were to run consecutively or concurrently. On August 9, 2000, the

state court clarified this arguable discrepancy, explaining that the two counts were

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to run concurrently. See 2000 Clarifying Order ¶ 5. Thus, the total sentence on

CR-92-484 is four years imprisonment, followed by one year of parole. 3

In the second half of the 1992 sentencing, the state court revoked Ward’s

suspended sentence and probation from the 1991 sentencing. It ordered Ward to

serve twelve years imprisonment, to be followed by two years of parole. The

order provided that “the sentence imposed herein as to cause number CR-91-103-

1 shall be served consecutively to the sentence imposed as to cause number CR-

42-484-1, with the sentence imposed in cause number CR-92-484-1 to be served

first.” 1992 Sentence at 3. The court erred, however, in treating the eighteen

month sentences for each of the eight counts in CR-91-103 as consecutive rather

than concurrent to each other. Thus, the court gave Ward twelve years attributed

solely to the convictions in CR-91-103, which was not consistent with the 1991

sentence for CR-91-103. The 1992 Sentence further provided that the sentences

imposed in the remaining seven cases from the 1991 Sentence “shall remain the

same.” The meaning of that reference is unclear since no additional prison time

was apparently attributed to the violation of probation as it pertained to those

other seven 1991 criminal sentences.

3
The state court’s August 2000 clarification moots the second issue Ward
presented in his appeal. Accordingly, we do not address that issue.

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 We pause to summarize. First, the two sentences from the 1992 Sentence

(the sentence from CR-92-484 and the sentence for violating the terms of the

1991 probation) are to run consecutively, with the sentence from CR-92-484

running first. Second, the total sentence from CR-92-484, as recently clarified, is

four years in prison, followed by one year of parole. Third, for violating

probation from the 1991 sentences, the court intended to sentence Ward to twelve

years in prison, followed by two years of parole. Fourth, the state court erred in

the 1992 Sentence by drawing the sentence for violating probation from the 1991

sentence (12 years imprisonment plus 2 years of parole) strictly from the

convictions in CR-91-103; as noted above, the sentences in CR-91-103 had

initially been imposed to run concurrently with each other, for a maximum total of

eighteen months. In the 1992 probation sentence, the court erroneously treated

those sentences in CR-91-103 as consecutive.

C. 1995 State Court Corrected Sentence

In 1994 and 1995, Ward filed two pro se habeas petitions in the state

district court seeking to correct alleged sentencing errors from the 1992 sentence

and one petition for a writ of mandamus in the New Mexico Supreme Court

seeking to compel the state district court to rule on his habeas petitions. On

October 13, 1995, the state district court filed an order to correct the alleged

errors from the 1992 Sentence [hereinafter 1995 Sentence].

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 In the 1995 Sentence, the court retained the twelve year sentence 4 for

violating probation issued from the 1991 sentence but instead of attributing the

twelve years entirely to CR-91-103, it allocated the twelve years over all eight

separate criminal cases that comprised the 1991 sentence. The remaining eleven

and one-half years from the 1991 Sentence 5 were suspended in favor of five years

probation. 6 The 1995 Sentence repeated that the sentence under CR-92-484 was

to be served prior, and consecutively, to the sentence imposed for violating

probation from the 1991 Sentence. Synthesizing the foregoing, Ward’s sentence

is: four years imprisonment plus one year of parole (CR-92-484) to be followed

by eleven years and 364 days of imprisonment plus five years probation (CR-91-

103, CR-91-326, CR-91-327, CR-91-328, CR-91-329, CR-91-330, CR-91-331,

and CR-91-198).

4
To be precise, the court imposed a term of 11 years and 364 days
imprisonment, in addition to five years of probation.
5
The 1991 Sentence exposed Ward to 22.5 years + 364 days of
imprisonment. The 1995 Sentence imposed 11 years + 364 days of imprisonment,
and converted the remaining 11.5 years of imprisonment to 5 years of probation.
6
At oral argument, Appellant’s counsel contended that the state court also
erred by imposing an allegedly new probationary term. This issue is deemed
waived, since it was not presented in Appellant’s Opening Brief. See State Farm
Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (stating that
failure to raise an issue in the opening brief waives the issue).

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D. Ward’s Habeas Petitions

On April 9, 1996, Ward filed a petition in federal district court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. His initial habeas petition was

denied by the district court and appealed to us. In our disposition of that appeal,

we stated,

Mr. Ward’s petition appears facially to raise a claim under the
Double Jeopardy Clause of the United States Constitution. While the
federal district court appears to have found Mr. Ward’s sentences
have not been impermissibly lengthened, we are unsure of the record
source of this finding. Given our uncertainty, we decline to resolve
this case on the merits at this stage. We would prefer that the federal
district court conduct an evidentiary hearing to determine the exact
parameters of the sentences imposed by the state district court.
Accordingly, we VACATE the judgment of the district court and
REMAND for further proceedings.

Ward I, at *3 (citation omitted). On remand, the magistrate judge found that the

Double Jeopardy Clause had not been violated and that an evidentiary hearing was

not required. See 1999 Magistrate’s Recommendation at 10-13, 17-18. As to the

latter issue, the magistrate (i) characterized Ward I as expressing only a

“preference” for an evidentiary hearing and (ii) found Ward’s petition did not

qualify for such a hearing based upon the Tenth Circuit’s test in Lucero v. Kerby,

7 F.3d 1520, 1522 (10th Cir. 1993). See 1999 Magistrate’s Recommendation at

10, 17.

The district court adopted the magistrate judge’s findings and recommended

disposition, thus denying the petition. Ward appealed. We granted a certificate

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of appealability on April 26, 2000. 7 We exercise jurisdiction pursuant to 28

U.S.C. § 2253.

DISCUSSION

Two issues remain in this appeal: (1) Did the state court violate the Double

Jeopardy Clause in the 1995 Sentence when it corrected its 1992 ruling and drew

its twelve year sentence for violating probation from CR-91-103 and six

remaining criminal cases? and (2) Did the federal district court on remand err by

failing to hold an evidentiary hearing as this court had directed in Ward I? We

answer both questions in the negative.

A. Double Jeopardy

We review de novo a claim by a habeas corpus petitioner that his sentence

violates the Double Jeopardy Clause. See Miranda v. Cooper, 967 F.2d 392, 403

(10th Cir. 1992). The Fifth Amendment provides: “[N]or shall any person be

subject for the same offence to be twice put in jeopardy of life or limb . . . .” This

Clause “protects against multiple punishments for the same offense.” United

States v. DiFrancesco, 449 U.S. 117, 129 (1980). Among other things, this

7
Although Ward’s initial habeas petition was filed in the district court
before April 24, 1996, the effective date for the Antiterrorism and Effective
Death Penalty Act of 1996, the Supreme Court has held that AEDPA governs
appellate proceedings filed after the statute’s effective date, as in this case. See
Slack v. McDaniel, 529 U.S. 473, 482 (2000). Thus, a certificate of appealability,
rather than a certificate of probably cause, was required.

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prevents a court from increasing a defendant’s sentence once he has a “legitimate

expectation of finality in his original sentence.” United States v. Rourke, 984 F.2d

1063, 1066 (10th Cir. 1992).

Ward presents two arguments as to why his corrected sentence violates

double jeopardy. First, he argues that he “had a legitimate expectation of finality

in the manner in which his original sentence was structured.” 8 Second, he

contends that he obtained a legitimate expectation of finality in the structure of

the 1992 Sentence because, between 1992 (when he was sentenced for violating

probation) and 1995 (when the court corrected his illegal sentence) he had served

“a portion” of this sentence.

Both these arguments fail for the same reasons: Ward successfully

challenged the illegal sentence imposed in 1992. Illegal sentences do not confer

legitimate expectations of finality because they are subject to change.

Furthermore, a defendant cannot gain a legitimate expectation of finality in a

sentence that he challenged.

8
He advances a corollary to this argument: part of the original structure of
his 1992 sentence was that the sentencing court found that he had violated
probation only as to CR-91-103; the other cases were to “remain the same.” This
is at odds with the plain language of the 1992 Sentence where the court found
“the defendant (Ward) has failed to comply with a substantial condition of his
probation.”

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 1. Illegal Sentence

The state court’s error in the 1992 Sentence of drawing the twelve years of

imprisonment from CR-91-103 alone was an illegal sentence because in the 1991

Sentence the court had run the eight counts covered by CR-91-103 concurrently.

As an illegal sentence, it could not have created a legitimate expectation of

finality. See Rourke, 984 F.2d at 1066 (“A defendant cannot acquire a legitimate

expectation of finality in a sentence which is illegal, because such a sentence

remains subject to modification.”). Indeed, Ward objected to the sentence as

incorrect and the state court, upon realizing its mistake, fixed its error in the 1995

Sentence.

The sentencing package doctrine is an application of this rule that illegal

sentences do not create a legitimate expectation of finality. The sentencing

package doctrine provides,

A sentence under the U.S. Sentencing Guidelines constitutes a
sentencing package which takes into account all counts upon which
the defendant has been convicted. When one of these counts is set
aside or vacated, the district court is free to reconsider the sentencing
package de novo unless the appellate court specifically limited the
district court’s discretion on remand.

United States v. Smith, 116 F.3d 857, 859 (10th Cir. 1997). We have

acknowledged that other circuit courts have applied the doctrine not only on

direct appeal, as we have, but also on collateral attack under 28 U.S.C. § 2255.

See United States v. Hicks, 146 F.3d 1198, 1202 n.5 (10th Cir. 1998) (citing

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cases). While we acknowledge the difference between our application of this

doctrine in previous cases and this case – this case involves a collateral attack

under § 2254 after an illegal sentence has been corrected by means of a state post-

conviction proceeding, rather than a direct appeal after a count is set aside or

vacated – we see no reason not to apply it to these facts. In Hicks we continued,

“Other circuits similarly have emphasized the importance of allowing district

courts to resentence in order to carry out the original sentencing intent,

recognizing that resentencing on remaining convictions after vacation of one

count may be necessary in order to ensure that the punishment still fits both the

crime and criminal.” Id. at 1202. Likewise, here, the state court in 1995 was

permitted to re-sentence Ward after it realized that its 1992 sentence was illegal

in order to carry out its original sentencing intent 9 and to ensure that Ward

received the appropriate punishment for violating the terms of his 1991 probation.

As we said in Hicks, “Hicks would have us place him in a better position by

allowing him to escape the consequences of using the weapon in the commission

of the offense. This we refuse to do.” Id. at 1203. Similarly, here, Ward would

have us place him in a better position by allowing him to reap the benefit of the

9
See Velasquez v. Taylor, 336 F.2d 802, 803 (10th Cir. 1964) (per curiam)
(following the clear intention of the sentencing court, despite arguably ambiguous
language in the sentencing order); Scarponi v. United States, 313 F.2d 950, 953
(10th Cir. 1963) (same).

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state court illegally (and it seems, inadvertently) drawing twelve years from one

case (CR-91-103) which originally carried only an eighteen month sentence,

rather than legally drawing it collectively from all eight cases comprising the

1991 sentence (CR-91-103, CR-91-326, CR-91-327, CR-91-328, CR-91-329, CR-

91-330, CR-91-331, CR-91-198) which originally carried a collective sentence of

almost 23.5 years, and hence could easily support a twelve year sentence for

probation violation. This we refuse to do.

All of the cases on which Ward relies for his second argument that he

acquired a legitimate expectation of finality by serving a portion of his sentence

are distinguishable. None of them involve an illegal sentence which was then

corrected, as here. 10

In sum, Ward is incorrect to assert that he had a legitimate expectation of

finality in the structure of his 1992 sentence. The state court did not violate

10
In addition, it is not clear that Ward had served any portion of the term of
imprisonment for violating probation. He correctly states that by 1995, when the
1992 Sentence was corrected, he had served three years in prison. He then
asserts, “If Mr. Ward had served concurrent sentences in Cr. 92-484 . . . , he
would have substantially completed service of the eighteen-month sentence
imposed in Cr. 91-103 before the district court entered the corrected sentence.”
This appears to be incorrect because the state court made clear in the 1992
Sentence that CR-92-484 was to be served prior to (the twelve years attributed to)
CR-91-103. Even assuming, as turns out to be the case, that the sentences from
the two counts of CR-92-484, were to run concurrently, it seems that he would
only have served three-quarters of the four-year sentence from CR-92-484 and
none of the sentence due to violating probation.

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double jeopardy in 1995 by correcting its illegal sentence and drawing the term of

twelve years imprisonment from seven of Ward’s eight criminal cases, rather than

from CR-91-103 alone.

2. Ward’s Challenge

The second, and related, reason to reject Ward’s arguments is that the

sentence was corrected because of Ward’s own post-conviction petitions.

Any expectation of finality in a sentence is wholly absent where the
defendant requests that his prior sentence be nullified. The defendant
has, by his own hand, defeated his expectation of finality and the
Double Jeopardy Clause, which guards against Government
oppression, does not relieve a defendant from the consequences of
his voluntary choice. Given that sentencing is often a “package deal,”
we have noted that the appealing defendant cannot claim an
expectation that the sentence on any particular count is irrevocably
final.

United States v. Welch, 928 F.2d 915, 917 (10th Cir. 1991) (quotation marks,

alterations, and citations omitted). Thus, a court may reimpose the same total

sentence after an appeal by increasing the sentence on a different count upon

which sentence was imposed in conjunction with the sentence successfully

challenged.

We have also held that after a successful post-conviction attack on a

sentence, the court may reconsider the sentence imposed on related counts.

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See United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). 11 In Mendoza,

the defendant originally had been sentenced on a drug count and for carrying a

firearm while trafficking. See id. at 708. His firearm conviction was vacated on

habeas, but the district court then enhanced his drug sentence for possessing a

weapon, and we affirmed. See id. at 708-09. Although Mendoza involved a

habeas petition by a federal prisoner, we see no reason that the same rule should

not apply to state prisoners and state post-conviction procedures.

Therefore, we hold that the state court did not violate double jeopardy by

re-sentencing Ward using seven of the eight criminal cases from his 1991

suspended sentence, instead of improperly drawing the twelve-year term from CR-

91-103 alone.

B. Evidentiary Hearing

In our disposition of Ward I, we instructed the district court to hold an

evidentiary hearing “to determine the exact parameters of the sentences imposed

by the state district court.” Ward I, at *3. We did this because we were “unsure

of the record source” for the district court’s finding that Ward’s sentences had not

11
We noted in that case that the defendant had not asserted any double
jeopardy challenge. See id. at 710. The principle, however, was that a habeas
petitioner should not be given a “windfall” that a defendant on direct appeal
would not receive. See id. at 709.

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been impermissibly lengthened. Id. This finding undergirded the district court’s

dismissal of Ward’s habeas petition.

On remand, the magistrate judge concluded, and we agree, that “[t]he

‘exact parameters’ of the sentences are clear from the record, and there is no other

factual issue for determination. Moreover, this court, on this review, has

delineated the record references that substantiate the court’s findings.” 1999

Magistrate’s Recommendation at 17. Thus, from the record, without holding an

evidentiary hearing, the magistrate judge was able to provide us with all we

asked.

Furthermore, the magistrate judge evaluated the necessity of an evidentiary

hearing by the correct legal standard: “A habeas petitioner is entitled to a hearing

if he alleges facts, which if proved, would entitle him to relief, and he did not

receive a full and fair hearing in the state court.” Lucero v. Kerby, 7 F.3d 1520,

1522 (10th Cir. 1993). In this case, as in Lucero, “[a] hearing would have served

no purpose.” Id. Accord Muniz v. Wyoming Attorney Gen., No. 94-8021, 1994

WL 540359, at *2 (10th Cir. Oct. 5, 1994) (“[B]ecause the issue of counsel’s

performance was resolved on the state record, an evidentiary hearing was not

required.”); Lawrence v. Lensing, 42 F.3d 255, 259 (5th Cir. 1994) (evidentiary

hearing properly denied when petitioner's Brady claim could be resolved solely on

record); Walton v. Caspari, 916 F.2d 1352, 1361-62 (8th Cir. 1990) (evidentiary

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hearing properly denied when claim of improper prosecutorial use of peremptory

jury challenges could be resolved through record and affidavit filed with federal

court); McQueary v. Blodgett, 924 F.2d 829, 832-33 (9th Cir. 1991) (evidentiary

hearing properly denied when facts underlying petitioner's claims not in dispute).

Ward concedes that if “the state court record conclusively shows that Mr.

Ward is not entitled to relief, an evidentiary hearing [need not] be held.” Opening

Brief at 24. Yet, he contends that an evidentiary hearing is necessary “to

establish the extent to which Mr. Ward had acquired a legitimate expectation of

finality in the sentence imposed on him when his probation was revoked in Cr.

91-103 by the time the state district court entered a corrected sentence on October

13, 1995.” Id. at 26. As discussed earlier, Ward could not have acquired a

legitimate expectation of finality because the original sentence was illegal and the

correction of it was made at Ward’s request. Thus, he did not allege facts which

would entitle him to relief.

Consequently, we conclude the district court did not err by not holding an

evidentiary hearing.

CONCLUSION

The district court’s denial of Ward’s § 2254 habeas petition is AFFIRMED.

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