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    Sullivan v. Bruce, 10th Cir. (2002)

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    Richard Sullivan was convicted of attempted rape and aggravated burglary. He filed a habeas corpus petition raising 10 grounds for relief, which was dismissed by the district court. On appeal, the Tenth Circuit Court of Appeals denied Sullivan's request for a certificate of appealability. The court found that Sullivan's claims regarding jury instructions, failure to instruct on a lesser included offense, pretrial proceedings, jury bias, and lack of DNA evidence were without merit. The court concluded Sullivan had failed to make a substantial showing that his constitutional rights were denied.

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    Sullivan v. Bruce, 10th Cir. (2002)

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    Richard Sullivan was convicted of attempted rape and aggravated burglary. He filed a habeas corpus petition raising 10 grounds for relief, which was dismissed by the district court. On appeal, the Tenth Circuit Court of Appeals denied Sullivan's request for a certificate of appealability. The court found that Sullivan's claims regarding jury instructions, failure to instruct on a lesser included offense, pretrial proceedings, jury bias, and lack of DNA evidence were without merit. The court concluded Sullivan had failed to make a substantial showing that his constitutional rights were denied.

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    Filed: 2002-08-08 Precedential Status: Non-Precedential Docket: 02-3119

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    Richard Sullivan was convicted of attempted rape and aggravated burglary. He filed a habeas corpus petition raising 10 grounds for relief, which was dismissed by the district court. On appeal, the Tenth Circuit Court of Appeals denied Sullivan's request for a certificate of appealability. The court found that Sullivan's claims regarding jury instructions, failure to instruct on a lesser included offense, pretrial proceedings, jury bias, and lack of DNA evidence were without merit. The court concluded Sullivan had failed to make a substantial showing that his constitutional rights were denied.

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    Public Domain
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    Download as pdf
    32 views6 pages

    Sullivan v. Bruce, 10th Cir. (2002)

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    Scribd Government Docs
    Richard Sullivan was convicted of attempted rape and aggravated burglary. He filed a habeas corpus petition raising 10 grounds for relief, which was dismissed by the district court. On appeal, the Tenth Circuit Court of Appeals denied Sullivan's request for a certificate of appealability. The court found that Sullivan's claims regarding jury instructions, failure to instruct on a lesser included offense, pretrial proceedings, jury bias, and lack of DNA evidence were without merit. The court concluded Sullivan had failed to make a substantial showing that his constitutional rights were denied.

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    F I L E D

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    AUG 8 2002

    TENTH CIRCUIT

    PATRICK FISHER
    Clerk

    RICHARD D. SULLIVAN,
    Petitioner - Appellant,
    v.
    L. E. BRUCE; CARLA STOVALL,
    Attorney General of Kansas,

    No. 02-3119
    (D.C. No. 01-CV-3232-DES)
    (D. Kansas)

    Respondents - Appellees.

    ORDER AND JUDGMENT *


    Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.
    Richard Sullivan was convicted by a state court jury of attempted rape and
    aggravated burglary. After his conviction was affirmed on direct appeal, he
    brought this petition raising ten grounds for relief under 28 U.S.C. 2254. The
    matter was referred to a federal magistrate judge, who dismissed three of the
    After examining appellants brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G). The case is therefore submitted without oral argument. This order and
    judgment is not binding precedent, except under the doctrines of law of the case,
    res judicata, or 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.
    *

    claims as unexhausted and recommended that relief on the remaining claims be


    denied. 1 The district court adopted the recommendation and dismissed the
    petition on the merits. The court also denied Mr. Sullivans request for a
    certificate of appealability (COA). Mr. Sullivan appeals, renews his request for
    COA, and requests that counsel be appointed to represent him. We deny his
    request for a COA, dismiss his appeal, and deny as moot his request for
    appointment of counsel.
    Mr. Sullivans habeas petition was filed after the effective date of the
    Antiterrorism and Effective Death Penalty Act (AEDPA). Review of his claims is
    therefore governed by its provisions. See Wallace v. Ward, 191 F.3d 1235, 1240
    (10th Cir. 1999). Under AEDPA, Mr. Sullivan is not entitled to relief unless the
    state court decision was 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), or was based on an unreasonable determination
    of the facts in light of the evidence presented at trial, id. 2254(d)(2). If the
    The state contended below that three of Mr. Sullivans remaining claims
    were also unexhausted. Mr. Sullivan had apparently attempted to file a petition
    for state post-conviction relief raising these claims. The petition was returned to
    him unfiled with a hand-written notation by the chief judge informing Mr.
    Sullivan that the issues he sought to raise had already been presented in his direct
    appeal. It appears that only one of the three issues the state asserts are not
    unexhausted was in fact included in Mr. Sullivans direct appeal. The magistrate
    judge concluded that judicial efficiency would best be served in these unique
    circumstances by proceeding to the merits. We agree.
    1

    -2-

    state court has not addressed the merits of a claim, we review the district courts
    legal conclusions de novo and its fact findings, if any, for clear error. See
    Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001).
    On appeal, Mr. Sullivan contends his rights to due process and equal
    protection were violated because the jury instructions did not require the jury to
    reach a unanimous decision as to the overt act required to prove attempted rape.
    This claim is without merit. It is settled law that when a single crime can be
    committed by various means, the jury need not unanimously agree on which
    means were used so long as they agree that the crime was committed. Schad v.
    Arizona, 501 U.S. 624, 631-32 (1991); see also id. at 649 (Scalia, J., concurring
    in judgment) (it has long been the general rule that when a single crime can be
    committed in various ways, jurors need not agree upon the mode of commission);
    see also United States v. Powell, 226 F.3d 1181, 1196 (10th Cir. 2000).
    Mr. Sullivan also asserts his constitutional rights were violated when the
    state trial judge failed to instruct on a lesser included offense. This claim is
    similarly lacking in merit. [A] petitioner in a non-capital case is not entitled to
    habeas relief for the failure to give a lesser-included offense instruction even if
    in our view there was sufficient evidence to warrant the giving of an instruction
    on a lesser included offense. Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993)
    (quoting Chavez v. Kirby, 848 F.2d 1101, 1103 (10th Cir. 1998)).
    -3-

    Mr. Sullivan raises several arguments in connection with the charging


    documents filed against him in state court and with his failure to receive a second
    preliminary hearing upon the filing of an amended complaint. After Mr.
    Sullivans preliminary hearing on the original information, he moved to dismiss
    on the ground that it failed to allege the elements of attempted rape. Upon the
    filing of an amended complaint, the trial court overruled Mr. Sullivans objection
    and his motion for a new preliminary hearing. The state appellate court
    concluded that the original information was defective, but held that state law
    permitted an amendment and that Mr. Sullivan suffered no prejudice from the
    denial of his motion to dismiss the original one. The court further concluded that
    Mr. Sullivans constitutional rights were not violated by the failure to provide him
    a second preliminary hearing since Mr. Sullivan did not challenge the sufficiency
    of the amended complaint.
    We agree that no constitutional violations arose in connection with Mr.
    Sullivans pretrial proceedings. Mr. Sullivan has not presented any argument or
    evidence tending to show that his defense was in any way prejudiced by the filing
    of an amended information and the failure to receive a second preliminary
    hearing. The pretrial proceedings as a whole adequately informed Mr. Sullivan of
    the charges, witnesses, and evidence against him well before trial. His attack on
    the technical validity of the preliminary hearing became harmless error and
    -4-

    unreviewable after the jury found him guilty after trial. See United States v.
    Mechanik, 475 U.S. 66, 73 (1986); United States v. Taylor, 798 F.2d 1337, 1339
    (10th Cir. 1986).
    Mr. Sullivan complains that the jury was biased against him on the basis of
    his race and ethnic background, and that he was denied his constitutional right to
    a jury of his peers. In order to establish such a claim, Mr. Sullivan must present
    evidence that the jurors sitting on his case acted with discriminatory purpose, see
    Meeks v. Moore, 216 F.3d 951, 967 (11th Cir. 2000), or that invidious
    discrimination infected the jury selection process, see Hirst v. Gertzen, 676 F.2d
    1252, 1260 (9th Cir. 1982). Mr. Sullivan has failed to allege any facts showing
    intentional discrimination in either the jury selection process or on the part of the
    jurors in his case. Accordingly, the district court properly rejected this claim.
    Finally, Mr. Sullivan contends his conviction violated due process because
    the state presented no DNA evidence to support it. The constitution does not
    require an attempted rape conviction to be supported by DNA evidence. The
    district court construed this claim as challenging the sufficiency of the evidence
    and rejected it, pointing out that the victims testimony was sufficient to allow the

    -5-

    jury to find Mr. Sullivan guilty of attempted rape beyond a reasonable doubt. See
    Jackson v. Virginia, 443 U.S. 307, 319 (1979). 2 We agree.
    Mr. Sullivan has moved this court for a COA, which requires that he make
    a substantial showing of the denial of a constitutional right. See Slack v.
    McDaniel, 529 U.S. 473, 483-84 (2000). To satisfy this standard, he must show
    that reasonable jurists would find the district courts decision debatable or wrong.
    Id. at 484. Because Mr. Sullivan has failed to do so, we DENY his motion for a
    COA and DISMISS his appeal.

    ENTERED FOR THE COURT


    Stephanie K. Seymour
    Circuit Judge

    In ruling on this matter, the magistrate judge stated that the victim
    testified Mr. Sullivan had tried to remove her pants. The state appellate court
    stated that when the victim refused Mr. Sullivans solicitation of sex, he forced
    his way into her apartment, struggled with her, and attempted to remove her pants
    while cornering her between the front door and a wall.
    2

    -6-

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