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TCL > October 2003 Issue > Tenth Circuit Summaries

October 2003       Vol. 32, No. 10       Page  179
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

Full copies of the Tenth Circuit decisions are available on the CBA website at http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Ineffective Assistance of Counsel—Death Penalty—Use of Mental Health Evidence During Guilt and Penalty Phases of Capital Case—Strategic Decision

Bryan v. Mullin, No. 00-6090, 7/21/03, W.D.Okla., Judge Murphy.

Petitioner-appellant Bryan originally appealed the federal district court’s denial of his habeas petition under 28 U.S.C. § 2254. He was convicted in Oklahoma state court of first-degree malice murder, and sentenced to death. The state court denied his appeals, and the federal district court denied habeas relief. On appeal, a panel of the Tenth Circuit Court of Appeals, in a divided opinion, held that trial counsel had not rendered ineffective assistance during the guilt or penalty phase of Bryan’s trial by failing to present mental health evidence. The case was reheard en banc. In this six-to-four decision, the Court again holds that Bryan failed to establish that counsel’s acts or omissions were outside the wide range of professionally competent assistance.

Bryan suffered from a history of organic brain disease. He murdered a relative because he believed that this relative owed him large amounts of money. Mental health professionals who evaluated Bryan concluded that he was competent, but "crazy." Despite a long history of mental health problems, his counsel decided not to present mental health evidence in mitigation at the penalty phase. The Court holds that this decision not to employ medical evidence during the guilt or the penalty phases was not objectively unreasonable. Rather, the decision was a strategic one. For that reason, counsel’s acts or omissions did not constitute ineffective assistance of counsel. The denial of habeas relief is affirmed.

Fourth Amendment—Exigent Circumstances—Privacy Interest in Person’s Own Home

U.S. v. Flowers, No. 02-5149, 7/22/03, N.D.Okla., Judge Holloway.

Defendant appeals the district court’s denial of his suppression motion. Police heard that a particular residence was a "juice joint" where liquor was being sold illegally. They went to the house and purchased a bottle of wine. The person inside the house opened a panel near the front door and his hand emerged from a hole in the wall; that is how the bottle of wine was passed to the officers. When officers identified themselves, they heard a thud from behind the door. When defendant opened the door, the officers went inside and took him into custody. They found a shotgun behind the bedroom door. Defendant was arrested for the misdemeanor of illegal sale of alcohol between 2:00 a.m. and 7:00 a.m. Defendant was later charged in a one-count federal indictment with possession of firearms and ammunition. He moved to suppress the evidence obtained from his seizure and arrest, as well as the entry of his home. After the court denied the motion, defendant entered a conditional guilty plea, reserving the right to appeal the court’s ruling overturning his motion to suppress.

The Tenth Circuit Court reverses. Unless there were exigent circumstances, the police department’s arrest of defendant and the subsequent search of his home violated the Fourth Amendment. At the time of defendant’s arrest, he was inside his home. Although he put his arm and hand outside his house by extending them through the panel opening, the rest of his body did not cross the threshold. These actions did not cause defendant to lose the constitutional protection afforded to a person’s interest in the privacy of his own home. Defendant was not visible to the public and his doorway was not open to public view. He was within the privacy of his home, which cannot be breached without an arrest or search warrant or probable cause, combined with exigent circumstances, without violating the Fourth Amendment. This arrest and search violated the Fourth Amendment. The district court’s order is vacated. Because the court did not address the question of exigent circumstances, the case is remanded for further proceedings on that issue.

Waiver of Right to Appeal—Jurisdiction—Validity of Waiver—Motion to Modify Sentence—Collateral Attack—Amendment 632—Retroactivity

U.S. v. Chavez-Salais, No. 02-2138, 7/29/03, D.N.M., Judge Ebel.

Defendant appeals the district court’s denial of his motion to modify his sentence under 18 U.S.C. § 3582(c)(2), based on a post-sentencing amendment to the applicable sentencing guideline. The government argues that the waiver in defendant’s plea agreement deprives the Tenth Circuit Court of jurisdiction to hear the appeal. The waiver in defendant’s plea agreement waived his right to direct appeal, and his right to any collateral attack, including a motion under 28 U.S.C. § 2255. The substantive question is whether amendment 632 to the guidelines, which amended U.S.S.G. § 2L1.2, applies to defendants convicted of reentering or remaining in the United States after having been previously deported.

The Court holds that this waiver does not constitute a waiver of defendant’s right to bring a motion to modify his sentence. Neither defendant’s plea agreement nor the Fed.R.Crim.P. 11 colloquy informed defendant that he was waiving that right. On the merits, applying a recently-decided case, the Court holds that because Amendment 632 is not listed in § 1B1.10 (naming guideline amendments that may be applied retroactively), defendant is not entitled to relief. The district court’s denial of defendant’s motion to modify his sentence is affirmed.

Sex Discrimination—Disparate Treatment—Hostile Working Environment—Title VII—Colorado Anti-Discrimination Act

Stinnett v. Safeway, Inc., No. 02-1200, 8/1/03, D.Colo., Judge Lucero.

While employed by Safeway as a meat wrapper, plaintiff worked on various temporary assignments where she performed data processing, check stand installations, videoconferencing, field technician assistance, as well as other work. In November 1998, a male employee with less seniority was assigned to lead a business project. He rejected plaintiff’s request to join the project and, instead, awarded the assignment to another male. Plaintiff was told there were no more special projects, so she returned to her meat-wrapper status. She suffered no loss in salary or benefits. She sued Safeway, alleging disparate treatment and hostile work environment, in violation of Title VII and the Colorado Anti-Discrimination Act. The district court entered summary judgment in favor of Safeway.

The Tenth Circuit Court addresses whether a return of an employee from a temporary position to her permanent assignment constitutes an "adverse employment action" under Title VII. Even though plaintiff’s wage level and seniority remained the same, the reassignment to meat wrapper resulted in a de facto reduction in responsibility and required a lesser degree of skill. Therefore, it qualified as an "adverse employment action." The court emphasized that an employer always retains the right to reassign a temporarily assigned employee to a permanent position, provided the decision is not based on unlawful criteria. Here, plaintiff presented sufficient evidence to withstand summary judgment on her disparate treatment claim, but not on her hostile working environment claim. Further, because the Colorado Anti-Discrimination Act applies the same standards as Title VII, plaintiff’s state-law disparate treatment claim also survived summary judgment. The district court’s judgment is affirmed in part, reversed in part, and remanded.

Bill of Costs—District Court Must Review Clerk’s Award—Waiver of Appellate Review

Bloomer v. United Parcel Service, Inc., No. 02-6385, 8/4/03, W.D.Okla., Per Curiam.

After a final judgment was entered against plaintiff, defendant filed a bill of costs with the clerk of the court. Plaintiff filed objections, but the clerk awarded costs to defendant. Rather than move the district court to review the award within five days, pursuant to Fed.R.Civ.P. 54(d)(1), plaintiff filed a notice of appeal. The Tenth Circuit Court dismisses the appeal because a party’s failure to file a motion for review of costs within five days constitutes a waiver of the right to challenge the award. The appeal is dismissed.

Grand Jury Secrecy—First Amendment Right to Speak—Right to Write About Information Possessed Prior to Becoming Grand Jury Witness

Hoffman-Pugh v. Keenan, No. 01-1385, 8/6/03, D.Colo., Judge Seymour.

This case involves the constitutionality of Colorado’s statute governing the secrecy of grand jury investigations. Plaintiff was the Ramseys’ housekeeper prior to their daughter’s murder. She was involved in the grand jury investigation of the murder, and now wants to write a book about her experiences. When she was a grand jury witness, she took an oath not to disclose her testimony until and unless an indictment or report was issued. The oath precludes her from revealing her testimony even after the grand jury’s term has ended, if the investigation continues. Plaintiff successfully sought a judgment declaring that she could not be prosecuted for revealing that information. The U.S. District Court held that Colorado’s secrecy rules violate the Constitution.

The state appeals, and the Tenth Circuit Court reverses. The district court held that the secrecy rules violate plaintiff’s First Amendment rights by requiring her to remain silent even after the grand jury ended its term without issuing an indictment or report. The Tenth Circuit Court holds that the pertinent case, Butterworth v. Smith, 494 U.S. 624 (1990), does not require this result. The Colorado statute does not prohibit disclosure of information the witness already had independently of the grand jury process. Plaintiff can write about information she possessed prior to becoming a witness, and cannot write about information she gained through her actual participation in the grand jury process. This result does not violate plaintiff’s First Amendment right to speak. The Colorado secrecy rules do not violate the First Amendment, so the district court’s grant of summary judgment is reversed and the case is remanded.

Magistrate Judge’s Authority to Take Verdict and Answer Jury Question—Delegation of Judicial Authority Under 28 U.S.C. § 636—Calculation of Criminal History Category—Fleeing and Eluding Police

U.S. v. Mendez-Lopez, No. 02-2119, 8/8/03, D.N.M., Judge Murphy.

Defendant appeals his conviction and sentence. On his conviction, he argues that he was deprived of his Article III right to a federal district judge when a magistrate judge presided over his jury deliberations and responded to a jury question. On his sentence, he argues that the district court plainly erred in including a conviction for fleeing and eluding police in calculating his criminal history category.

The Tenth Circuit Court affirms. The district judge obtained the parties’ consent to have a magistrate judge take the jury’s verdict. During deliberations, the jury sent a question to the magistrate. The magistrate answered the note with a response that was agreed to by the parties. The issue is whether taking a verdict falls within the meaning of the "additional duties" clause under 28 U.S.C. § 636(b)(3). The Court holds that it does. Responding to a jury question does as well, so the delegation was not erroneous and did not violate Article III. On sentencing, the court properly counted a conviction for "fleeing or eluding a police officer" in the criminal history calculation. Doing so did not constitute plain error. The conviction and sentence are affirmed.

Interlocutory Appeal—Title VII—Eleventh Amendment Immunity—Retaliation—Reasonable Good-Faith Belief

Crumpacker v. State of Kansas, Dep’t of Human Resources, No. 02-3197, 8/8/03, D.Kan., Judge Murphy.

Plaintiff sued her former employer, the state of Kansas ("State"), under Title VII, for retaliating against her by firing her after she complained about gender discrimination. The State responded that it was immune from suit under the Eleventh Amendment. The district court denied the State’s motion for summary judgment.

The Tenth Circuit Court has appellate jurisdiction over the State’s interlocutory appeal of the Eleventh Amendment issue. The Court exercised pendent jurisdiction over the interrelated issue of whether a plaintiff may maintain a retaliation claim based on a subjective good-faith belief that the complained-of conduct violated Title VII. The Court holds that Congress had properly abrogated states’ immunity in enacting the retaliation provision of Title VII.

The Tenth Circuit Court addresses the State’s argument that plaintiff’s retaliation claim was based only on her subjective good-faith belief that the underlying conduct violated Title VII. The Supreme Court has held that an unreasonable good-faith belief cannot support a retaliation claim. Because Congress intended to deter gender discrimination in the workplace, the Tenth Circuit Court holds that a retaliation claim can be based on a reasonable good-faith belief that the underlying conduct violated Title VII. The order denying Eleventh Amendment to the State is affirmed.

Record on Appeal—Insurance Policy Language Controls—Policy Not Provided—Appeal Dismissed—Litigant Warned

Travelers Indemnity Co. v. Accurate Autobody, Inc., Nos. 02-5095 & 02-5104, 8/19/03, N.D.Okla., Judge Hartz.

In this cross-appeal of a declaratory judgment ruling on an insurance policy, none of the parties filed a copy of the challenged policy with the appellate court. The Tenth Circuit Court determines that under Oklahoma state law, the resolution of the parties’ claims depended on the policy language. Because the Court does not have before it the policy language, it is unwilling to reverse the district court. The Tenth Circuit Court also warns one of the parties to be more careful not to engage in baseless attacks on the integrity of the district court. The judgment is affirmed.

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