Legal Appeal Denied in Murder Case
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Scribd Government DocsF I L E D
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
AUG 17 2004
PATRICK FISHER
Clerk
MICHAEL H. BILDERBACK, II,
Petitioner-Appellant,
v.
SCOTT ABBOTT, Warden, Wyoming
Department of Corrections State
Penitentiary Complex Administrator,
in his official capacity; PATRICK
CRANK, Wyoming Attorney General,
in his official capacity,
No. 03-8089
(D.C. No. 02-CV-47-D)
(D. Wyo.)
Respondents-Appellees.
ORDER AND JUDGMENT
Before TACHA , Chief Judge, MURPHY , Circuit Judge, and
Chief District Judge.
CAUTHRON , **
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
**
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioner Michael H. Bilderback appeals the denial of his counseled
petition for a writ of habeas corpus brought pursuant to 28 U.S.C. 2254. He
was convicted in Wyoming state courts of attempted second-degree murder, of
using a firearm while committing the felony of second-degree murder, and of
concealing stolen property. On appeal, the Wyoming Supreme Court vacated
petitioners firearm conviction because the charge violated the Double Jeopardy
Clause. The court affirmed petitioners remaining convictions. Petitioner
initiated procedures for post-conviction relief in the state courts, and has properly
exhausted his remedies there.
On collateral attack in federal court, petitioner asserts four grounds for
relief. He asserts (1) that his trial counsel rendered ineffective assistance in not
requesting a jury instruction on the lesser-included offense of voluntary
manslaughter; (2) that he was denied due process and effective assistance of
counsel on direct appeal when the Wyoming Supreme Court refused to remand his
case to the state district court for a hearing on whether the lesser-included offense
instruction should have been given to the jury; (3) that his right to due process
was denied by submission of a jury instruction that malice was presumed from the
use of a deadly weapon; and (4) that his Fifth Amendment right against
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self-incrimination was violated by an officers explanation at trial that petitioners
post- Miranda interview had ended when petitioner requested counsel. We
granted COA on all issues, and now affirm the federal district courts denial of a
writ of habeas corpus.
Brief Factual Background
Petitioner committed two armed robberies and stole two cars in Nebraska.
He then fled west, driving through Wyoming on his way to Washington State. At
8 a.m. on Monday, January 11, 1999, petitioner was pulled over for speeding in
Wyoming by a police officer. Without apparent provocation, petitioner shot the
officer point-blank in the face with a .25 caliber semi-automatic pistol. He fled
from the scene of the crime, but was apprehended after a short chase.
At trial, petitioner admitted shooting the officer, but testified that, because
he had acted out of fear of being pursued by unknown persons from Nebraska, he
had blanked out during the act. Petitioner therefore asserted that he lacked the
necessary intent to kill, malice, and premeditation necessary for first-degree
murder.
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Standard of Review
After grant of a certificate of appealability, we review a district courts
denial of a writ of habeas corpus de novo. See, e.g., Valdez v. Ward, 219 F.3d
1222, 1230 (10th Cir. 2000) (applying the same standards as applied by the
district court). Federal courts, however, shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. 2254(a); see
also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); accord Richmond v. Embry,
122 F.3d 866, 870 (10th Cir. 1997).
Furthermore, under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), federal courts may not issue a writ unless the state courts
adjudication of a claim was either contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States or 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)(1) & (2).
A state court decision is contrary to clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the [U.S. Supreme]
Court on a question of law or if the state court decides a case differently than the
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[U.S. Supreme] Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (OConnor, J., concurring).
A state court decision is an unreasonable application of federal law only if the
state court identifies the correct governing legal principle from the [U.S.
Supreme] Courts decisions but unreasonably applies that principle to the facts of
the prisoners case. Id. at 413. The reasonableness of a state courts application
of federal law is to be evaluated by an objective standard. See id. at 409-10.
[A]n unreasonable application of federal law is different from an incorrect or
erroneous application of federal law. Id. at 412 (emphasis in original).
Discussion
After a thorough review of the record, we agree that there has been no
denial of petitioners federal constitutional or statutory rights, and we hold that
the state courts have not rendered a decision that is contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States. 28 U.S.C. 2254(d)(1).
First, petitioners counsel did not render ineffective assistance of counsel in
failing to request a voluntary manslaughter instruction because, as the Wyoming
Supreme Court concluded, under Wyoming state law, the evidence presented at
trial did not support such an instruction.
Bilderback v. State , 13 P.3d 249, 252
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(Wyo. 2000); accord Boyd v. Ward , 179 F.3d 904, 917 (10th Cir. 1999). It cannot
be ineffective assistance of counsel to fail to request a result that was not
available. See Strickland v. Washington , 466 U.S. 668, 694 (1984). Additionally,
because the submission of the jury instruction rested on state law, rather than on a
federal constitutional or statutory question, we may not review it on collateral
attack. 28 U.S.C. 2254(a); Estelle, 502 U.S. at 67-68; Williams, 529 U.S. at
413.
Second, because the submission of the jury instruction was not available as
a matter of state law on known facts, there was no denial of due process or
ineffective assistance of counsel surrounding the Wyoming Supreme Courts
refusal to remand petitioners case to the state district court for further hearing on
whether that lesser included instruction should have been given.
28 U.S.C.
2254(a); Estelle, 502 U.S. at 67-68. The Wyoming Supreme Court found that
the facts of the case as submitted at trial did not support an investigation into that
question, and we defer to its interpretation of those facts. 28 U.S.C. 2254(d)(2).
Third, petitioner was not denied due process from a jury instruction that
malice could be inferred from the use of a deadly weapon. Contrary to the
suggestion in petitioners brief, the language of the jury instruction was
permissive, and the Wyoming Supreme Court found that the jurys inference of
malice was reasonable under the circumstances.
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Bilderback , 13 P.3d at 252-53.
Petitioner admitted to having the gun on his person, and that he shot the officer at
close range without provocation or warning. And he fled from the scene of the
crime. Id. We hold that the state courts decision was not contrary to, or an
unreasonable application of, federal law. 28 U.S.C. 2254(d)(1).
Fourth, petitioner cites no U.S. Supreme Court precedent to establish that
his Fifth Amendment right against self-incrimination was violated by testimony
that petitioners post- Miranda interview had ended when he requested counsel.
Because the prosecution made no further comment about petitioners request for
counsel, petitioner fails to identify how the admission of that testimony
prejudiced his case at trial.
The Wyoming Supreme Court declined to reverse petitioners conviction on
this ground because the testimony was offered only to explain how the interview
with the officer ended, and no known rule makes that the sole basis for prejudicial
error. Bilderback , 13 P.3d at 253. We agree. Because petitioner makes no
argument that the Wyoming Supreme Courts conclusion was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, we hold that he is not
entitled to a writ of habeas corpus. 28 U.S.C. 2254(d)(1).
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Conclusion
For the reasons stated above, we AFFIRM the district courts denial of
a writ of habeas corpus.
Entered for the Court
Michael R. Murphy
Circuit Judge
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