Burleson v. Saffle, (10th Cir. 2002)

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PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

B.J. BURLESON,

Petitioner - Appellant,

v.

JAMES SAFFLE,

Respondent - Appellee,

and

DREW EDMONDSON,

Respondent.

No. 00-6254

(D.C. No. 98-CV-1129-L)

(W. District of Oklahoma)

CERTIFICATION OF QUESTION OF STATE

LAW

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 and McWILLIAMS, Circuit Judges, and

STAGG,(*) District

Judge.

The United States Court of Appeals for the Tenth Circuit, pursuant to 10th

Cir. R. 27.1 and Okla. Stat. tit. 20, § 1602, hereby respectfully submits to the

Oklahoma Court of Criminal Appeals a certified question of Oklahoma law. The

answer to this question, which is not clearly provided by Oklahoma law, may be

determinative of the above-captioned matter now pending before this Court.

The Question
name="txt1a">(1)

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. 1997). 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?

I

B.J. Burleson asks this Court to reverse the decision of the district court

denying his petition for a writ of habeas corpus. He contends that his Oklahoma

state court conviction on two counts of using a vehicle to facilitate the discharge

of a weapon was in violation of the Double Jeopardy Clause of the Fifth

Amendment. We have certified the above question to the Oklahoma Court of

Criminal Appeals ("OCCA") because the answer will help us determine the proper

state law predicate for our resolution of the federal constitutional question raised

in this case.

II

Around midnight on February 16, 1995, Burleson was riding in the backseat

of a car with four friends. Earlier that night the group engaged in a series of

hostile telephone calls with two other men, Kristoffer Trim and Bobby Lindsey,

during which the parties exchanged various threats. Burleson and his friends

arranged to meet Trim and Lindsey at a convenience store to settle their dispute

by fistfight, but the rendezvous never occurred. Instead, Burleson and the others

drove to the house where Trim and Lindsey were staying. As the car passed the

house, Burleson fired approximately five shots at Trim and Lindsey, one of which

hit Trim and left him paralyzed.

Burleson was convicted on two counts of violating Oklahoma's "drive-by

shooting" statute, Okla. Stat. tit. 21, § 652(B), and was sentenced to two

consecutive twenty-year terms of imprisonment. He appealed his convictions to

the OCCA, alleging among other things that he had been subjected to double

jeopardy by being twice punished for the single offense of using a vehicle to

facilitate the discharge of a weapon. By a three-to-two vote in an unpublished

summary decision dated May 2, 1997, the OCCA affirmed Burleson's convictions

and sentences.

On August 1, 1997, the OCCA issued an opinion in another case that

appeared as if it might have importance for Burleson. In Locke v. State, the

OCCA held that "where a vehicle is used to facilitate the intentional discharge of

a weapon during one 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). Burleson proceeded

to seek state post-conviction relief in Oklahoma County District Court ("OCDC")

in the wake of the Locke decision, which even the state of Oklahoma conceded

was in direct conflict with the OCCA's earlier summary affirmance of Burleson's

convictions. (Order Den. Post-Conviction Relief at 2.) The OCDC noted that if

Locke had been issued by the OCCA while Burleson's convictions were not yet

final, retroactive application of the decision would have been required (id.), and

Burleson presumably would have been afforded relief. Unfortunately for

Burleson, the OCCA's decision in Locke was issued one day after his

convictions

became final.(2) As a result, the OCDC

stated that "absent directions from the

Court of Criminal Appeals" it would decline to apply Locke retroactively to

Burleson's case. (Id.) The OCCA, in turn, refused to give such instructions and

on nonretroactivity grounds alone declined to grant Burleson his requested post-conviction relief.

(Order Affirming Den. Post-Conviction Relief at 1­2.)

Burleson subsequently filed a petition for a writ of habeas corpus in federal

court, again alleging that he was subjected to double jeopardy, and further urging

that the rule of Locke be applied to his case. The matter was referred to a

magistrate judge, who recommended that the district court deny the petition

because (1) the application of Locke to Burleson's case was barred by the

nonretroactivity principle of Teague v. Lane, 489 U.S. 288 (1989), and (2) the

OCCA's decision in Burleson's case was not contrary to or an unreasonable

application of clearly established federal law. (Report & Recommendation at

12­13.) The district court accepted the magistrate's recommendation, and this

appeal followed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(c)(1)(A).

III

Burleson contends that his conviction on two counts of violating

Oklahoma's drive-by shooting statute offends the Double Jeopardy Clause of the

Fifth Amendment, which provides that "[n]o person shall . . . be subject for the

same offence to be twice put in jeopardy of life or limb."
name="txt3a">(3)

U.S. Const. amend. V,

The protections of the Double Jeopardy Clause extend not only to successive

prosecutions for the same offense but also, as is allegedly the case here, to

"multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S.

711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490

U.S. 794, 802­03 (1989); see also United States v. Morris, 247 F.3d

1080, 1083

(10th Cir. 2001).

The offense at issue centers on Oklahoma's drive-by shooting statute,

which provides:

Every person who uses any vehicle to facilitate the intentional

discharge of any kind of firearm, crossbow, or other weapon in

conscious disregard for the safety of any other person or persons

shall upon conviction be guilty of a felony punishable by

imprisonment in the State Penitentiary for a term of not less than two

(2) years nor more than twenty (20) years.

Okla. Stat. tit. 21, § 652(B). Burleson asserts that the statute precludes multiple

convictions arising out of one shooting spree--even if more than one person is

shot at--because the plain language of the statute makes clear that the use of a

vehicle is the prohibited conduct, regardless of the number of potential victims.

If the Oklahoma legislature had intended to allow separate convictions for each

person whose safety was threatened, Burleson suggests, it would not have

included the reference to "any other person or persons" in the statute. Id.

(emphasis added). Thus, he contends, it would be a double jeopardy violation to

allow his conviction on two counts of violating the statute to stand even though

he engaged in only a single course of conduct. Burleson also notes, correctly,

that the OCCA ultimately adopted this very argument in Locke.

A

The district court, accepting the magistrate's recommendation, first refused

to grant Burleson habeas corpus relief on the grounds that Teague v. Lane bars

the retroactive application of Locke to his case. It is clear, however, that the

nonretroactivity principle of Teague has no bearing on this case and should not

have been addressed by the magistrate in his recommendation to the district court.

Nonetheless, it is likewise clear that we have no authority to order the OCCA to

apply Locke retroactively.

It is not the Supreme Court's decision in Teague that bars the retroactive

application of Locke to Burleson's case. Rather, it is the standard of review

imposed upon federal habeas courts by the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"). Pursuant to 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; 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.

28 U.S.C. 2254(d). 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.
name="txt4a">(4)

The "general rule of [Oklahoma] law," according to the OCCA, 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. of Post-Conviction

Relief at 1­2.) This state law ruling provides no grounds for the granting of

habeas relief, and we do not consider it in our habeas analysis. See Lewis v.

Jeffers, 497 U.S. 764, 780 (1990) (affirming that "federal habeas corpus relief

does not lie for errors of state law"); Rose v. Hodges, 423 U.S. 19, 21 (1975) (per

curiam) (noting that in conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the

United States). It is therefore unnecessary for us to engage in a Teague analysis

with respect to the state law question of the applicability of Locke to Burleson's

case.

Although Teague itself is not relevant to the outcome of this case, we

further note that the magistrate's application of Teague was analytically flawed.

Teague's holding is that "new constitutional rules of criminal procedure will not

be applicable to those cases which have become final before the new rules are

announced," 489 U.S. at 310 (emphasis added), unless a new rule "places certain

kinds of primary, private individual conduct beyond the power of the criminal

law-making authority to proscribe," or could be considered a "watershed rule of

criminal procedure," id. at 311 (quotation omitted). To put the matter simply,

Locke does not announce a new constitutional rule of criminal procedure. Rather,

we think it clear that Locke is the Oklahoma court's substantive interpretation of

a criminal statute, and that it is neither "new" nor "procedural."

In the federal statutory context, the Supreme Court has stated that "because

Teague by its terms applies only to procedural rules, we think it is inapplicable to

the situation in which this Court decides the meaning of a criminal statute enacted

by Congress." Bousley v. United States, 523 U.S. 614, 620 (1998). Moreover, a

rule is not "new" when it is based squarely on statutory interpretation. United

States v. Talk, 158 F.3d 1064, 1071 (10th Cir. 1998); see also United States v.

Shelton, 848 F.2d 1485, 1489 (10th Cir. 1988) (noting that a "statute cannot mean

one thing prior to the Supreme Court's interpretation and something entirely

different afterwards" (quotation omitted)). The circuit courts have accordingly

found Teague inapplicable where a habeas petitioner seeks application of a court

decision newly construing substantive law. See, e.g., Talk, 158 F.3d at 1071

(stating that Teague is inapplicable where a new holding results from the

interpretation of the sentencing guidelines); Murr v. United States, 200 F.3d 895,

905­06 (6th Cir. 2000) (holding Teague inapplicable where an earlier decision

interpreted a statute to require jury unanimity for each of several elements);

Lanier v. United States, 220 F.3d 833, 838 (7th Cir.) (same), cert. denied, 531

U.S. 930 (2000). Locke is likewise a substantive interpretation of a criminal

statute; thus, if Locke had involved construction of a federal statute, a federal

court could not have refused to apply its holding retroactively to a case on

collateral review.(5)

B

Burleson also argues that, irrespective of the OCCA's decision in Locke,

his conviction on two counts of violating the Oklahoma drive-by shooting statute

offends the Double Jeopardy Clause. The district court denied habeas relief based

on this argument as well, holding that the OCCA's decision in Burleson's case

was not contrary to or an unreasonable application of clearly established federal

law.

1. Blockburger as Controlling Federal Law

In reviewing the district court's decision, our threshold question is whether

the Supreme Court has clearly established the federal law to be applied to this

type of alleged double jeopardy violation. We conclude that it has.

In a long line of double jeopardy decisions, the Supreme Court has held

that it is crucial to determine whether the criminal statute at issue proscribes

conduct that is of a discrete or of a continuing nature. The source of this doctrine

is a pair of bookend cases from 1887 that illuminates the distinction nicely. In Ex

parte Snow, the Court held that a defendant could be convicted only once under a

statute providing that "if any male person . . . cohabits with more than one

woman, he shall be deemed guilty of a misdemeanor," 120 U.S. 274, 275 (1887),

because this offense "is, inherently, a continuous offence, having duration; and

not an offence consisting of an isolated act," id. at 281. In Ex parte Henry, in

contrast, the Court allowed multiple convictions to stand pursuant to the mail

fraud statute--which provided that no person "shall, in and for executing [any]

scheme or artifice [to defraud] . . . place any letter or packet in any post-office of

the United States," 123 U.S. 372, 373 (1887) (quotation omitted)--because each

act of mailing a letter from the post office in furtherance of a fraudulent scheme

"is not, as in the case of In re Snow, a continuous offence, but [instead] consists

of a single isolated act, and is repeated as often as the act is repeated," id. at 374

(citation omitted). These cases establish the conceptual framework for

distinguishing between statutes that criminalize individual acts and statutes that

criminalize a course of conduct.

The modern articulation of this distinction and of its importance is to be

found in Blockburger v. United States, in which the Supreme Court stated plainly

that "[t]he test is whether the individual acts are prohibited, or the course of

action which they constitute. If the former, then each act is punishable

separately. * * * If the latter, there can be but one penalty." 284 U.S. 299, 302

(1932) (quotation omitted). As an illustration of this rule, the Court cited what

has come to be known as the "mail bags case" of Ebeling v. Morgan, 237 U.S. 625

(1915). In Ebeling, the defendant was convicted under several counts for the

willful tearing of mail bags with the intent to rob. Id. at 627. The defendant

contended that his tearing into several mail bags was a single course of action and

that multiple punishments were therefore unconstitutional. Id. at 628. The Court

disagreed, noting that the statute at issue proscribed the tearing of "any mail bag,"

and explaining that "[t]hese words plainly indicate that it was the intention of the

lawmakers to protect each and every mail bag from felonious injury and

mutilation," and that with the destruction of any one mail bag "the offense is

complete." Id. at 629. Had the statute proscribed a course of action, the Double

Jeopardy Clause would have precluded multiple convictions for the defendant's

actions. See United States v. Anderson, 59 F.3d 1323, 1333 (D.C. Cir. 1995)

(en

banc) (noting that the result in Ebeling would have been different if the statute

read, "whoever uses a knife during or in relation to cutting mailbags . . ."

(emphasis added)).(6)

We thus conclude that federal law is clear that "there can be but one

penalty" when a statute criminalizes a course of action rather than an individual

act. Blockburger, 284 U.S. at 302 (quotation omitted); see also United

States v.

Mathis, 673 F.2d 289, 293­95 (10th Cir. 1982).

2. Ascertaining the Legislature's Intent

The fact that the Supreme Court has clearly established the

unconstitutionality of multiple punishments for a single "course of action" does

not by itself dispose of the present case. We may grant Burleson habeas relief

only if we are convinced that the OCCA's affirmance of his conviction was

contrary to, or an unreasonable application of, Blockburger's mandates--a

conclusion that itself depends upon whether Oklahoma's drive-by shooting statute

criminalizes a course of action rather than a discrete act.

The Double Jeopardy Clause could not have been offended in Burleson's

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."). If the Oklahoma legislature intended

the use of a vehicle for prohibited purposes to be the criminal conduct proscribed

by statute regardless of the number of potential victims, Burleson could be

convicted of only one count of violating Oklahoma's drive-by shooting statute.

In such a circumstance, the OCCA's affirmance of Burleson's multiple

convictions would necessarily have been an unreasonable application of federal

law as established by the Supreme Court in Blockburger. If, however, the

legislature intended to allow for multiple prosecutions when multiple potential

victims are endangered, then Burleson's convictions did not violate the Double

Jeopardy Clause and the OCCA's affirmance of the convictions would necessarily

have been reasonable and consistent with federal law.

"In 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 the present case,

however, the OCCA offered no public construction of the Oklahoma statute at all.

Indeed, the OCCA's summary, unpublished opinion provides us with no basis for

determining on what grounds or by what reasoning it reached its decision.

Moreover, there is no prior decision from the Oklahoma courts construing the

statute, thereby making it impossible for us--if we decided it were appropriate--to

"look through" the OCCA's summary decision to determine whether its reasoning

in this case was consistent with its prior holdings. See Cummings v. Evans,

161

F.3d 610, 615 (10th Cir. 1998) (noting that this Court "has not addressed whether

a 'look through' principle applies to summary dispositions in the double jeopardy

context"). Indeed, the only authoritative construction of the drive-by shooting

statute is to be found in the subsequently decided case of Locke, which, as noted

above, interpreted the statute as criminalizing a course of conduct rather than an

individual act. 943 P.2d at 1095.

Because resolution of the federal double jeopardy issue in the present case

is inextricably intertwined with the proper construction of Oklahoma's statute, the

OCCA's silence as to the reasons for its affirmance of Burleson's conviction puts

us in an unusual position. Pursuant to AEDPA our task is ordinarily

straightforward enough, even where resolution of a federal question depends upon

the resolution of a predicate state-law question: We defer absolutely to the state

court's disposition of the state-law question and proceed to review the court's

application of federal law to ascertain whether or not it was reasonable. See

Schad v. Arizona, 501 U.S. 624 , 636 (1991) (opinion of Souter, J., with

Rehnquist, C.J., O'Connor and Kennedy, JJ., concurring) (noting that federal

courts are limited to deciding whether a state's criminal statute, as construed by

the state's courts, violates the Constitution); see also Johnson v. Fankell, 520

U.S.

911, 916 (1997) ("Neither this Court nor any other federal tribunal has any

authority to place a construction on a state statute different from the one rendered

by the highest court of the State."); Robinson v. California, 370 U.S. 660, 666

(1962) (holding that a state court's construction of state statutes is "a ruling on a

question of state law that is as binding on [federal courts] as though the precise

words had been written into the statute" (quotation omitted)). Moreover, we have

noted that "there is nothing inherently objectionable in the Oklahoma court's use

of summary opinions in unpublished cases," King v. Champion, 55 F.3d 522, 526

(10th Cir. 1995), and that we will normally defer to a state court's result even

when it is unaccompanied by supporting reasoning, Aycox v. Lytle, 196 F.3d

1174, 1177 (10th Cir. 1999).

The unusual confluence of circumstances attending the present case makes

impossible an easy resolution of the federal constitutional question presented to

us. Here the defendant's constitutional rights are intertwined with the

construction of a state statute, the state court was silent as to the statute's proper

construction, its criminal courts have never previously interpreted the statute, and

its highest criminal court has subsequently construed the statute in a manner that

implicates the defendant's constitutional rights. In this situation, it would be

improper for us as a federal reviewing court to divine which construction the state

court chose to give its own statute from amongst a universe of more or less

plausible possibilities. In the interest of comity, we will not lightly presume that

the state court resolved a statutory question in a manner that would lead to a

constitutional violation. As the Supreme Court observed in a slightly different

context,

We are not at liberty to conjecture that the [state] trial court acted

under an interpretation of the state law different from that which we

might adopt and then set up our own interpretation as a basis for

declaring that due process has been denied. We cannot treat a mere

error of state law, if one occurred, as a denial of due process;

otherwise, every erroneous decision by a state court on state law

would come here as a federal constitutional question.

Gryger v. Burke, 334 U.S. 728, 731 (1948). Nor, given our responsibility to

provide the type of meaningful review that AEDPA requires of us, see Aycox,

196 F.3d at 1178 (noting that when faced with a state court's summary decision

we are still obliged under AEDPA to conduct an "independent review of the

record and pertinent federal law"), will we unquestioningly presume that the state

court adopted a particular saving construction of its own statute that would ensure

its constitutional application in a given case--at least when the state court has

subsequently interpreted the statute in a manner implicating a defendant's

constitutional rights.

We conclude that the proper course of action in the present case is to

certify the predicate state-law question to the OCCA and stay the proceedings

until we receive an answer. Cf. Stewart v. Smith, No. 01-339, 2001 U.S. Lexis

11061, at *3­*4 (U.S. Dec. 12, 2001) (per curiam) (certifying a question to state

court because the resolution of the federal issue depended upon the interpretation

of a state rule of law that had not been addressed in the state court's elliptical

holdings in the alternative). Once we learn whether the drive-by shooting statute

had the same meaning under Oklahoma law on May 2, 1997 (when Burleson's

conviction was affirmed) as it did on August 1, 1997 (when the OCCA issued

Locke v. State), we will be able to resolve the double jeopardy claim that is

before us.

IV

The clerk of this Court is directed to transmit a copy of this certification

order to counsel for all parties to the proceedings in this court. The clerk shall

also submit to the Oklahoma Court of Criminal Appeals a certified copy of this

order, together with copies of the briefs filed in this Court, copies of the district

court's judgment, the names and addresses of counsel of record, and either the

original or a copy of the record as filed in this Court by the parties.

This appeal is ordered STAYED pending resolution of the question

certified herein.

Dated this ___ day of January, 2002.

Carlos F. Lucero

Presiding Judge

United States Court of Appeals

for the Tenth Circuit

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. The Honorable Tom Stagg, District Judge

for the Western District of

Louisiana, sitting by designation.

1. Pursuant to Okla. Stat. tit. 20, §

1604(3), we acknowledge that the

Oklahoma Court of Criminal Appeals, acting as the receiving court, may

reformulate the question we have certified to it.

2. Burleson's appeal became final on July

31, 1997, ninety days after the

OCCA's denial of his appeal, at the conclusion of the period for filing a petition

for a writ of certiorari to the United States Supreme Court. See Walker v.

State,

933 P.2d 327, 331 n.7 (Okla. Crim. App. 1997) ("'Final' means a case where the

judgment of conviction was rendered, the availability of appeal exhausted, and the

time for petition of certiorari had elapsed." (quotation omitted)); see also Caspari

v. Bohlen, 510 U.S. 383, 390­91 (1994); United States v. Burch, 202 F.3d

1274,

1276, 1279 (10th Cir. 2000).

3. In Benton v. Maryland, the

Supreme Court held that the Double Jeopardy

Clause of the Fifth Amendment was incorporated against the states by way of the

Due Process Clause of the Fourteenth Amendment. 395 U.S. 784, 794 (1969).

4. Burleson does not contend, and we do not

consider whether, the state's

failure to apply Locke retroactively to his case was a violation of his federal due

process rights.

5. We note parenthetically that the

Oklahoma courts appear to have

incorporated into state law the Supreme Court's Teague approach to analyzing

whether a new rule of law should have retroactive effect, see Ferrell v. State,

902

P.2d 1113, 1114­15 (Okla. Crim. App. 1995), and that the OCCA seems to have

applied Teague principles in reaching its determination that Burleson was not

entitled to have the rule of Locke applied to his case (see Order Affirming Den.

of

Post-Conviction Relief at 1­2). Although our observations on the point

are

merely advisory, and Oklahoma is free to extend the rule of Teague in any

manner it sees fit, we nonetheless note that the OCCA's application of Teague in

the present case appears--from the perspective of a federal court--to suffer from

the same analytic flaw to be found in the magistrate's recommendation.

6. The defendant in Blockburger

was convicted on two counts of violating

the Harrison Narcotic Act after he completed a sale of drugs to a purchaser and

immediately thereupon received payment for an additional quantity of drugs to be

delivered the next day. 284 U.S. at 301. In finding no double jeopardy violation,

the Court noted that the Narcotic Act "does not create the offense of engaging in

the business of selling the forbidden drugs, but penalizes any sale." Id. at

302

(emphasis added).

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