F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 12 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
B.J. BURLESON,
Petitioner - Appellant,
v.
No. 00-6254
JAMES SAFFLE,
Respondent - Appellee,
and
DREW EDMONDSON,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 98-CV-1129-L)
Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, for
Petitioner-Appellant.
Diane L. Slayton, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for
Respondent and Respondent-Appellee.
Before LUCERO , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and
STAGG , * District Judge.
LUCERO , Circuit Judge .
B.J. Burleson, an Oklahoma state prisoner, asks this Court to reverse the
decision of the district court denying his 28 U.S.C. § 2254 petition for a writ of
habeas corpus. He contends that his state court conviction for two counts of
using a vehicle to facilitate the intentional discharge of a weapon was a violation
of the Double Jeopardy Clause of the Fifth Amendment. On May 7, 2001, we
granted Burleson a certificate of appealability. On January 24, 2002, the matter
was ordered stayed by this Court pending resolution of a question of state law that
we certified to the Oklahoma Court of Criminal Appeals (“OCCA”). That
question has been answered and, exercising our jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(c)(1)(A), we now affirm.
Relevant factual background and procedural history is thoroughly presented
in our Certification of Question of State Law, Burleson v. Saffle , 278 F.3d 1136,
1138–40 (10th Cir. 2002), and need not be repeated in detail here. Briefly,
Burleson was a passenger in a car when he fired approximately five shots at two
different men, hitting one and leaving him paralyzed. He was subsequently
*
The Honorable Tom Stagg, District Judge for the Western District of
Louisiana, sitting by designation.
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convicted on two counts of violating Oklahoma’s “drive-by shooting” statute,
Okla. Stat. tit. 21, § 652(B), and sentenced to two consecutive twenty-year prison
terms. He has advanced two arguments in support of his petition for a writ of
habeas corpus: First, he suggests that the OCCA’s holding in Locke v.
State —“where a vehicle is used to facilitate the intentional discharge of a weapon
during a single transaction or ‘shooting event,’ only one count of Using a Vehicle
to Facilitate the Intentional Discharge of a Firearm is appropriate,” 943 P.2d
1090, 1095 (Okla. Crim. App. 1997)—should be applied retroactively to his case.
Second, he contends that irrespective of the application of Locke to his case, his
conviction for two counts of violating Oklahoma’s drive-by shooting statute is a
double jeopardy violation.
In our Certification Order, we explained why it is impossible for us to grant
a writ of habeas corpus based on Burleson’s retroactivity argument. Pursuant to
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may
not grant an application for a writ of habeas corpus with respect to any claim
adjudicated on the merits by a state court unless that state court decision
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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28 U.S.C. § 2254(d). As we stated in the Certification Order,
To the extent that Burleson asks us to grant him habeas relief by
applying the “new rule” of Locke to his already final case, we have
only one question to consider: Was the OCCA’s decision not to
apply Locke retroactively to Burleson’s case contrary to or an
unreasonable application of federal law? The answer to that question
is clearly no, because whether or not a new rule of state law may be
applied retroactively is a pure state law question.
Burleson , 278 F.3d at 1140. The OCCA noted in its denial of Burleson’s request
for post-conviction relief that the “general rule of [Oklahoma] law” is that “new
rules or intervening changes in the law should only be applied prospectively from
their effective date, especially on collateral review, unless they are specifically
declared to have retroactive effect.” (Order Affirming Den. Post Conviction
Relief at 1–2.) Locke was not declared to have retroactive effect. This state law
ruling provides us with no grounds for granting Burleson habeas relief.
Burleson’s second argument, that his convictions were a double jeopardy
violation irrespective of the OCCA’s holding in Locke , is untenable in light of the
OCCA’s answer to our certified question of state law. As discussed above,
pursuant to AEDPA we may grant Burleson habeas relief only if we conclude that
the OCCA’s decision in his case was contrary to or an unreasonable application of
clearly established federal law as determined by the Supreme Court. In the
Certification Order, we identified the relevant law as the rule of Blockburger v.
United States that “there can be but one penalty” when a statute criminalizes a
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course of action rather than an individual act. 284 U.S. 299, 302 (1932)
(quotation omitted). Burleson contends that Oklahoma’s drive-by shooting statute
criminalizes a course of conduct, and that therefore Blockburger compels us to
conclude that his conviction for two counts of violating the statute subjected him
to double jeopardy.
There was no violation of the Blockburger rule in the present case if the
Oklahoma legislature intended to allow defendants to be punished multiple times
pursuant to the state’s drive-by shooting statute for engaging in a single shooting
event. See Missouri v. Hunter , 459 U.S. 359, 366 (1983) (“With respect to
cumulative sentences imposed in a single trial, the Double Jeopardy Clause does
no more than prevent the sentencing court from prescribing greater punishment
than the legislature intended.”). Moreover, “[i]n assessing whether a state
legislature intended to prescribe cumulative punishments for a single, criminal
incident, we are bound by a state court’s determination of the legislature’s
intent.” Birr v. Schillinger , 894 F.2d 1160, 1161 (10th Cir. 1990); see also
Hunter , 459 U.S. at 368 (“We are bound to accept the [State] court’s construction
of that State’s statutes.”).
In Locke , the OCCA’s only published, precedential opinion construing the
state’s drive-by shooting statute, the court determined that the Oklahoma
legislature intended to criminalize a course of conduct rather than a discrete act,
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and that therefore multiple convictions arising out of a single shooting event
would be a double jeopardy violation. 943 P.2d at 1095. Because Burleson’s pre-
Locke double jeopardy claim was denied by the OCCA in a summary, unpublished
opinion, and because prior to Locke there had been no precedential cases
construing Oklahoma’s drive-by shooting statute, we were uncertain (1) whether
the OCCA had reinterpreted the statute between the time of its decision in
Burleson’s case and its decision in Locke , in which case Burleson’s conviction
would not have been a double jeopardy violation because the statute, as construed
by the state court at the time his conviction became final, allowed for multiple
convictions arising out of one shooting event, or (2) whether the OCCA had
consistently interpreted the statute as criminalizing only a course of conduct, in
which case Burleson’s conviction would necessarily have been a double jeopardy
violation.
Presented with a summary opinion, no prior authoritative interpretation of
the statute, and subsequent authority implicating defendant’s constitutional rights,
we were unwilling to presume that the OCCA had adopted a particular saving
construction of the statute that would assure the constitutional application of the
statute in the instant case. Nonetheless, in the interest of comity we likewise
refused to presume that the OCCA had resolved a statutory question in a manner
that would lead to a constitutional violation. We thus certified the following
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question to the OCCA:
On August 1, 1997, the Oklahoma Court of Criminal Appeals held
that “where a vehicle is used to facilitate the intentional discharge of
a weapon during a single transaction or ‘shooting event’ only one
count of Using a Vehicle to Facilitate the Intentional Discharge of a
Firearm [Okla. Stat. tit. 21, § 652(B)] is appropriate.” Locke v.
State , 943 P.2d 1090, 1095 (Okla. Crim. App. 199 7). Did the statute
have the same meaning under Oklahoma law on May 2, 1997, the day
petitioner-appellant’s criminal conviction for two counts of violating
this section was affirmed?
Burleson , 278 F.3d at 1138.
The OCCA, over a dissent, has now answered our question in the
affirmative, albeit with something of a twist:
[W]e find that the Legislature intended to allow multiple counts for
the offense of use of a vehicle to facilitate the intentional discharge
of a weapon, where multiple victims are involved. We now turn to
the question posed by the Tenth Circuit. In light of our
interpretation of the drive-by shooting statute, we find that Locke
was wrongly decided and must be overruled. The statute’s meaning
is the same as it was on May 2, 1997, when Burleson’s convictions
were affirmed.
Burleson v. Saffle , No. CQ-2002-140, 2002 Okla. Crim. App. LEXIS 14, at *12
(Okla. Crim. App. Mar. 27, 2002) (footnote omitted). We now know that at the
time Burleson’s conviction became final the OCCA had concluded “that the
[Oklahoma] Legislature intended to impose an additional punishment on persons
who commit drive-by shootings by allowing more than one prosecution where
there are multiple victims.” Id. at *6. Because the legislature intended to allow
for multiple convictions in a factual circumstance like that presented in the instant
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case, Burleson’s two convictions for violating the state’s drive-by shooting statute
did not violate his right against being subjected to double jeopardy.
The district court’s dismissal of Burleson’s petition for a writ of habeas
corpus is AFFIRMED . 1 Mr. Burleson’s motion to proceed in forma pauperis is
granted.
1
Burleson’s “Motion for Leave to File Appellant’s Second Supplemental
Brief” is granted.
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