Gregory M. Hawes v. MICHAEL PACHECO, Warden, Wyoming State Penitentiary; WYOMING ATTORNEY GENERAL

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
GREGORY M. HAWES,
Petitioner - Appellant,
v.
MICHAEL PACHECO, Warden,
Wyoming State Penitentiary; WYOMING
ATTORNEY GENERAL,
Respondents - Appellees.
No. 19-8047
_________________________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 1:17-CV-00052-ABJ)
_________________________________
John C. Arceci, Assistant Federal Public Defender, Denver, Colorado, (Virginia L.
Grady, Federal Public Defender, Denver, Colorado, with him on the briefs; and Gregory
M. Hawes, pro se, Rawlins, Wyoming), for Petitioner – Appellant.
Jenny L. Craig, Deputy Attorney General, Cheyenne, Wyoming, for Respondents –
Appellees.
_________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Wyoming state prisoner Gregory Hawes appeals the dismissal of his habeas
corpus petition filed under 28 U.S.C. § 2254 to challenge his kidnapping conviction.
FILED
United States Court of Appeals
Tenth Circuit
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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This court granted a certificate of appealability (“COA”) on the issue of whether
application of the Wyoming kidnapping statute to him was constitutional under the Sixth
and Fourteenth Amendments.
Under the statute, whether a kidnapping ends with a “safe release” of the victim
can affect the defendant’s sentence. At trial, the state district court imposed the burden to
show safe release on Mr. Hawes. The jury found that he had not proved safe release,
which subjected him to higher statutory minimum and maximum sentences. A state court
denied his post-conviction challenge to the imposition of this burden. It relied on
Wyoming Supreme Court decisions holding that a kidnapping defendant must prove safe
release rather than the prosecution having to prove lack of safe release.
Mr. Hawes argues the Wyoming court’s application of the statute violated his
Sixth and Fourteenth Amendment rights under Alleyne v. United States, 570 U.S. 99
(2013), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Mullaney v. Wilbur, 421 U.S.
684 (1975). He makes colorable arguments, but he does not surmount the habeas
restrictions that require us to (1) give deference to the state court’s application of
Supreme Court law under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and (2) accept the state court’s interpretation of state law. Exercising
jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a) and (c)(1)(A), we affirm.
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I. BACKGROUND
A. Legal Background
Federal Law
a. U.S. Constitution
The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const.
amend. VI. The Fourteenth Amendment guarantees that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.
“Taken together, these rights indisputably entitle a criminal defendant to ‘a jury
determination that [he] is guilty of every element of the crime with which he is charged,
beyond a reasonable doubt.’” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)
(alteration in original) (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)); see
In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged.”).
b. United States Supreme Court cases
Four Supreme Court decisions are relevant to this appeal.
i. Mullaney
In Mullaney v. Wilbur, 421 U.S. 684 (1975), the Supreme Court considered
whether Maine’s murder statute met the constitutional due process requirement that the
state must prove every element of a criminal offense beyond a reasonable doubt. See id.
at 684-85. Under Maine law, murder required malice aforethought. See id. at 686 n.3.
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Without malice aforethought, a “homicide would be manslaughter.” See id. at 686. In
practice, “if the prosecution established that the homicide was both intentional and
unlawful, malice aforethought was to be conclusively implied unless the defendant
proved by a fair preponderance of the evidence that he acted in the heat of passion on
sudden provocation.” Id. at 686.
The Court found this burden shifting unconstitutional. It “h[e]ld that the Due
Process Clause requires the prosecution to prove beyond a reasonable doubt the absence
of the heat of passion on sudden provocation when the issue is properly presented in a
homicide case.” Id. at 704.
ii. Patterson
Two years later, in Patterson v. New York, 432 U.S. 197 (1977), the Court again
considered the constitutionality of allocating a burden of proof to a criminal defendant.
New York’s homicide statute allowed a murder defendant “to raise an affirmative defense
that he acted under the influence of extreme emotional disturbance for which there was a
reasonable explanation or excuse.” Id. (quotations omitted). “[T]he defendant had the
burden of proving his affirmative defense by a preponderance of the evidence.” Id.
at 200. Doing so would reduce the offense from second-degree murder to manslaughter.
See id. at 198-99.
The Court found this scheme constitutionally permissible. It “decline[d] to adopt
as a constitutional imperative . . . that a State must disprove beyond a reasonable doubt
every fact constituting any and all affirmative defenses related to the culpability of an
accused.” Id. at 210. The Court thus held that “the prosecution [must] prove beyond a
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reasonable doubt all of the elements included in the definition of the offense of which the
defendant is charged,” but “[p]roof of the nonexistence of all affirmative defenses has
never been constitutionally required.” Id.1
iii. Apprendi
Nearly 25 years later, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court
addressed what facts needed to be proved beyond a reasonable doubt based on their
sentencing impact. In Apprendi, the defendant pled guilty to a firearms offense that
carried a maximum statutory punishment of 10 years in prison. See id. at 468-70. After
the defendant entered his plea, the trial judge found by a preponderance of the evidence
that the defendant intended to intimidate his victims because of their race, and thus
enhanced his sentence under a separate hate crime statute. See id. at 468-71. Under this
statute, the defendant’s maximum statutory punishment was 20 years. See id. at 469.
The Court found the defendant’s Sixth and Fourteenth Amendment rights had
been violated. See id. at 476, 497. It stated: “Other than the fact of a prior conviction,
1 Patterson distinguished the New York statute from the Maine statute in
Mullaney. Under the latter, “malice, in the sense of the absence of provocation, was part
of the definition of [murder]. Yet malice, i.e., lack of provocation, was presumed and
could be rebutted by the defendant only by proving by a preponderance of the evidence
that he acted with heat of passion upon sudden provocation.” Patterson, 432 U.S. at 216.
Because Mullaney “held that a State must prove every ingredient of an offense beyond a
reasonable doubt, and that it may not shift the burden of proof to the defendant by
presuming that ingredient upon proof of the other elements of the offense,” id. at 215, the
Maine statute was unconstitutional. Under the New York statute, though, “nothing was
presumed or implied against [the defendant].” Id. at 216. Thus, the Court upheld the
application of the New York statute.
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any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
iv. Alleyne
More recently, in Alleyne v. United States, 570 U.S. 99 (2013), the Court extended
its Apprendi holding. See id. at 111-12. In Alleyne, a jury convicted the defendant of
“using or carrying a firearm in relation to a crime of violence.” See id. at 103-04. The
statute of conviction required a mandatory minimum sentence of five years of
imprisonment, but if the firearm was “brandished,” it required a mandatory minimum of
seven years. See id. (quoting 18 U.S.C. § 924(c)(1)(A)(ii)). The jury’s findings did not
indicate that the firearm was “brandished.” See id. at 104. But the sentencing judge
determined it was, and thus applied the seven-year mandatory minimum. See id.
The Court found a constitutional violation. See id. at 117. “Apprendi concluded
that any ‘facts that increase the prescribed range of penalties to which a criminal
defendant is exposed’ are elements of the crime.” Id. at 111 (quoting Apprendi, 530 U.S.
at 490). But “the principle applied in Apprendi applies with equal force to facts
increasing the mandatory minimum.” Id. at 112. “[T]he essential Sixth Amendment
inquiry is whether a fact is an element of the crime.” Id. at 114. And “[w]hen a finding
of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily
forms a constituent part of a new offense and must be submitted to the jury.” Id. at
114-15. “Juries must find any facts that increase either the statutory maximum or
minimum because the Sixth Amendment applies where a finding of fact both alters the
legally prescribed range and does so in a way that aggravates the penalty.” Id. at 113 n.2.
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“Because the finding of brandishing increased the penalty to which the defendant was
subjected, it was an element, which had to be found by the jury beyond a reasonable
doubt.” Id. at 117.
To summarize, “[t]he essential point is that the aggravating fact produced a higher
range, which, in turn, conclusively indicates that the fact is an element of a distinct and
aggravated crime. It must, therefore, be submitted to the jury and found beyond a
reasonable doubt.” Id. at 115-16.
Wyoming Law
a. Kidnapping statute
Section 6-2-201 of the Wyoming criminal code addresses “Kidnapping; penalties;
effect of release of victim.” Wyo. Stat. § 6-2-201. It provides:
(a) A person is guilty of kidnapping if he unlawfully removes
another from his place of residence or business or from the
vicinity where he was at the time of the removal, or if he
unlawfully confines another person, with the intent to:
(i) Hold for ransom or reward, or as a shield or
hostage;
(ii) Facilitate the commission of a felony; or
(iii) Inflict bodily injury on or to terrorize the victim or
another.
(b) A removal or confinement is unlawful if it is
accomplished:
(i) By force, threat or deception; or
(ii) Without the consent of a parent, guardian or other
person responsible for the general supervision of an
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individual who is under the age of fourteen (14) or
who is adjudicated incompetent.
(c) If the defendant voluntarily releases the victim
substantially unharmed and in a safe place prior to trial,
kidnapping is a felony punishable by imprisonment for not
more than twenty (20) years.
(d) If the defendant does not voluntarily release the victim
substantially unharmed and in a safe place prior to trial,
kidnapping is a felony punishable by imprisonment for not
less than twenty (20) years or for life except as provided in
W.S. 6-2-101.
Id.
b. Wyoming Supreme Court cases
i. Loomer
In 1989, well before Apprendi and Alleyne, the Wyoming Supreme Court
considered whether subsection (c) of Wyoming’s kidnapping statute created a lesser-
included offense to kidnapping. See Loomer v. State, 768 P.2d 1042, 1046 (Wyo. 1989).
The court concluded it did not. See id. Instead, “[i]t describes mitigating circumstances
rather than elements of the offense.” Id.
The court reasoned that “[t]he statute defines a single crime, kidnapping, which
carries a sentence of 20 years to life.” Id. Subsection (c) “provides for a reduced
sentence based upon defendant’s conduct subsequent to the kidnapping.” Id. And
because “[t]he burden of showing mitigating circumstances which are not an element of
the offense may be placed on a defendant without violating due process requirements,”
id. at 1047 (citing Patterson, 432 U.S. 197), “the defendant has the burden of going
forward with evidence to show that the circumstances exist,” id.
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ii. Rathbun
In 2011, the Wyoming Supreme Court reaffirmed Loomer’s holding in Rathbun v.
State, 257 P.3d 29 (Wyo. 2011). The court stated:
There is one crime—kidnapping—for which the maximum
sentence is as stated in Subsection (d). Where there has been
a completed kidnapping, the defendant is at liberty to produce
evidence to prove, in mitigation of sentence, that he or she
voluntarily released the victim substantially unharmed. If that
is not accomplished, the sentencing range remains as it is
stated in Subsection (d).
Id. at 39.2
The Rathbun court further “conclude[d] that the sentencing structure of Wyo. Stat.
Ann. § 6-2-201(c) and (d), as previously interpreted . . . in Loomer, is a structure that is
authorized by Apprendi.” Id.3 It explained:
Because a jury’s guilty verdict in a kidnapping case subjects
the defendant to the full punishment of Wyo. Stat. Ann.
2 The Rathbun court also similarly stated:
We have previously held that kidnapping is a single crime
described in Wyo. Stat. Ann. § 6-2-201(a) and (b), and that
subsection (c), rather than defining a lesser-included offense,
describes mitigating conduct subsequent to the kidnapping
that may allow for a reduced sentence. Loomer v. State, 768
P.2d 1042, 1046-47 (Wyo. 1989). The appellant bears the
burden of proving such mitigating conduct and, if competent
evidence of such is produced, the question must be presented
to the jury. Id. at 1047.
257 P.3d at 37-38. Although the court reviewed a conviction for attempted kidnapping
such that safe release would not have been at issue, see id. at 31-32, 37-38, it confirmed
that Loomer stated the governing interpretation of Wyoming’s kidnapping statute, see id.
at 37-38.
3 Because Rathbun issued in 2011, the Wyoming Supreme Court did not yet have
the benefit of the 2013 decision in Alleyne.
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§ 6-2-201(d), Apprendi would not require the jury to consider
mitigating circumstances that could reduce the punishment
range. Similarly, it is not unconstitutional to assign to a
defendant the burden of proving an affirmative defense, or the
burden of proving mitigating circumstances at sentencing.
Id. at 39 n.7 (citing, among others, Kansas v. Marsh, 548 U.S. 163, 169-75 (2006);
Patterson, 432 U.S. at 205; United States v. Contreras, 536 F.3d 1167, 1173-74 (10th
Cir. 2008)). The court reasoned that, “as interpreted by Loomer, Wyoming’s statutory
scheme exceeds that which is required by Apprendi because [the Wyoming Supreme
Court] said in Loomer that mitigating circumstances were to be submitted to the jury.”
Id. (citing Loomer, 768 P.2d at 1047).
B. Factual Background
In 2013, Mr. Hawes entered the residence of his estranged wife, Donna Hawes,
and “forced her into the bedroom, where he tied her hands and feet to the bed and gagged
her.” Hawes v. State, 335 P.3d 1073, 1075 (Wyo. 2014). He threatened that “he would
either hang himself and make her watch, or he would kill her and then hang himself.” Id.
Instead, he “cut the restraints from her hands with a pair of scissors.” Id. Mrs. Hawes
then “took the scissors, cut her feet free,” and fled. See id. Mr. Hawes pursued her but
stopped when she reached a neighbor’s yard. See id. “[T]he police arrived, and Mrs.
Hawes was taken to the hospital for treatment of her cuts and bruises.” Id.
C. Procedural Background
Trial
Mr. Hawes was charged with felony stalking, kidnapping, and aggravated assault
and battery. The information charged Mr. Hawes with “Kidnapping, in violation of
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Wyoming Statute §6-2-201(a)(ii)(iii)(d), a felony, punishable by imprisonment for not
less than twenty (20) years or for life . . . .” Aplt. Suppl. Br., Attachment 6 at 1-2
(emphasis removed).
At trial, the court imposed the burden of proving safe release on Mr. Hawes rather
than require the State to prove that he did not safely release the victim. The jury found
him guilty of kidnapping, and also found that he did not safely release Mrs. Hawes. The
court thus adjudged Mr. Hawes guilty of “Kidnapping, in violation of Wyoming Statute
§6-2-201(a)(ii)(iii)(d) where the Defendant did not voluntarily release the victim.” ROA,
Vol. I at 152. The jury also convicted him of felony stalking but acquitted him of
aggravated assault and battery.
The trial court sentenced Mr. Hawes to five to nine years in prison for stalking and
to a consecutive sentence of 30 years to life for kidnapping.
Appeal
On appeal, Mr. Hawes argued he had proved that he safely released Mrs. Hawes.
See Hawes v. State, 335 P.3d 1073, 1077 (Wyo. 2014). He claimed “he ‘voluntarily
released’ his victim when he cut her hands free and then allowed her to cut her own feet
free and again when he stopped chasing her when she reached the edge of her neighbor’s
property.” Id. But the Wyoming Supreme Court found that “a reasonable jury could
certainly have concluded that Mrs. Hawes[’s] cutting her own feet free and then running
from the house . . . with Mr. Hawes in pursuit did not constitute ‘voluntary release.’” Id.
In reaching this conclusion, the court noted that “[t]he burden of proof is on the
defendant to establish the[] mitigating factors” of safe release. Id. (citing Loomer, 768
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P.2d at 1047). “Because Mr. Hawes ha[d] not shown that there was insufficient evidence
to support a finding of no voluntary release,” the court “affirm[ed] the jury’s finding that
he was not entitled to a mitigated sentence for the kidnapping charge.” Id. It thus
affirmed his kidnapping conviction and sentence.4
Post-Conviction
a. State court review
Mr. Hawes sought post-conviction relief from the Wyoming district court. He
alleged his lawyers were ineffective for failing to argue that the State had the burden of
proving the absence of safe release as an aggravating fact under Alleyne. In January
2017, the court denied his petition. It applied Loomer and Rathbun to conclude the trial
court properly imposed on Mr. Hawes the burden of proving safe release. Because the
opinion is not available in a reporter, we reproduce the relevant portion here:
16. Hawes has not shown that either trial or appellate counsel
were ineffective and, therefore, fails to overcome the
procedural bar imposed upon him by Wyoming Statutes
§ 7-14-103(a)(i). Accordingly, Claim 1 [based on ineffective
assistance of counsel] fails. First, with regard to case
preparation and investigation, Hawes contends that both
counsel should have been aware of cases such as Alleyne v.
United States, --- U.S.---, 133 S. Ct. 2151 [2013]. He argues
that the decision in Alleyne requires the State to prove
“aggravating factors” in order to enhance his sentence for
kidnapping, rather than requiring him to offer and prove
mitigating factors in order to receive a reduced sentence for
that crime. He further contends that the failure to know this
law meant that his rights to due process were violated because
the State was allowed to convict him without having to prove
all of the essential elements of the crime with which he had
4 The court reversed the stalking conviction.
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been charged. Finally, he asserts that the crime of kidnapping
was never properly charged because the State omitted the
“aggravating elements” it was required to prove, which
further reflects negatively on trial and appellate counsel.
17. Hawes misunderstands the nature of Wyoming’s law
concerning kidnapping and its constitutionality. Under
Wyoming law, a conviction for kidnapping subjects a
defendant to a term of imprisonment from twenty years to life
unless that defendant can prove that “he or she voluntarily
released the victim substantially unharmed.” Rathbun, ¶ 30,
257 P.3d at 39 (citing Wyo. Stat. Ann. § 6-2-201(c) and (d)).
The State is not required to prove “aggravating factors” to
enhance the punishment. Id. Further, the Legislature’s
decision to require defendants to prove mitigation, rather than
requiring the State to prove aggravation, is constitutionally
permitted. Loomer v. State, 768 P.2d 1042, 1047 (Wyo.
1989) (citing Patterson v. New York, 432 U.S. 197 (1977)).
Thus, neither trial nor appellate counsel can be faulted for
their decisions to not challenge this aspect of Wyoming law.
ROA, Vol. I at 485-86.5
5 The Wyoming district court referred to Wyo. Stat. § 7-14-103(a)(i)’s “procedural
bar,” but the State has not argued that Mr. Hawes has procedurally defaulted on his claim.
“[P]rocedural default is an affirmative defense, and the state must either use it or lose it.”
McCormick v. Parker, 821 F.3d 1240, 1245 (10th Cir. 2016).
Even though the Wyoming district court addressed Mr. Hawes’s challenge to the
constitutionality of Wyoming’s kidnapping statute as part of its analysis of his ineffective
assistance of counsel claim, the court’s reasoning adjudicated on the merits the
constitutional claim that he asserts here. See Albrecht v. Horn, 485 F.3d 103, 116
(3d Cir. 2007) (concluding that even though “[t]he state Supreme Court did not . . .
address [a constitutional claim] on the merits in the ordinary sense” but “instead . . .
examined the merits in the context of the prejudice prong of an ineffective assistance of
post-conviction counsel claim,” that the state court’s decision “constitute[d] an
adjudication on the merits sufficient for purposes of [AEDPA]”). Mr. Hawes agrees that
“[t]he state courts adjudicated the claim on the merits.” See Aplt. Suppl. Br. at 13.
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The Wyoming Supreme Court summarily denied Mr. Hawes’s petition for a writ
of certiorari.6
b. Federal district court review
Mr. Hawes next filed a 28 U.S.C. § 2254 habeas petition in federal district court.
See Hawes v. Pacheco, No. 1:17-cv-00052-ABJ, 2018 WL 11239562 (D. Wyo. Jan. 24,
2018). He “assert[ed] the Wyoming kidnaping statute creates two degrees of the crime,
‘simple’ and ‘aggravated,[’] with the latter requiring the prosecution prove a defendant
did not voluntarily release his victim substantially unharmed.” Id. at *10.
The district court said that Mr. Hawes “has not shown, nor can he show, any
constitutional requirement a state invert its statutory sentencing mitigators by requiring a
prosecution prove their absence in order to secure a conviction.” Id. at *12. Rather,
“courts, quite to the contrary, have clearly rejected the assertion the prosecution ‘prove
beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing
to recognize as an exculpatory or mitigating circumstance affecting the degree of
6 “As instructed by the Supreme Court, we must focus on the last state court
decision explaining its resolution of [the petitioner’s] federal claims.” Church v.
Sullivan, 942 F.2d 1501, 1507 (10th Cir. 1991) (citing Ylst v. Nunnemaker, 501 U.S. 797,
803-05 (1991)). Because the Wyoming Supreme Court summarily denied Mr. Hawes’s
petition for a writ of certiorari, the “look-through rule” requires us to analyze the lower
court’s opinion. See Brecheen v. Reynolds, 41 F.3d 1343, 1358 (10th Cir. 1994); see also
Bonney v. Wilson, 817 F.3d 703, 711 & n.6 (10th Cir. 2016) (looking to a Wyoming
district decision when “[i]n post-conviction proceedings, the Wyoming Supreme Court
denied certiorari” “[b]ut . . . did not provide analysis”).
Thus, the “last reasoned opinion” at issue for this habeas appeal, see Church, 942
F.2d at 1507 (quoting Ylst, 501 U.S. at 803), is the Wyoming district court’s January
2017 order—reproduced above—dismissing Mr. Hawes’s petition for post-conviction
relief.
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culpability or the severity of the punishment.’” Id. (quoting Patterson, 432 U.S. at 207).
The court held that “[i]t was . . . not a violation of clearly established constitutional law
for the jury to reject [Mr. Hawes’s] argument” about proof of safe release. Id.
The district court dismissed Mr. Hawes’s § 2254 petition and denied a COA.
c. Certificate of appealability
Mr. Hawes sought a COA from this court. We determined that “[r]easonable
jurists would find . . . debatable” whether “Wyo. Stat. Ann. § 6-2-201 is unconstitutional
because it places the burden on the defendant to prove safe release by a preponderance of
the evidence and because it establishes a 20-year minimum sentence for defendants who
do not prove safe release.” Doc. 10715021 at 11. We thus granted “a COA to consider
Mr. Hawes’s argument that Wyo. Stat. Ann. § 6-2-201 violates the Sixth and Fourteenth
Amendments.” Id. at 19.7
II. DISCUSSION
Mr. Hawes’s appeal fails because he cannot show that the state post-conviction
court’s decision denying his constitutional claims “was contrary to, or involved an
unreasonable application of, clearly established [Supreme Court] law.” 28 U.S.C.
§ 2254(d)(1). Given (1) the deference we must accord to the state court under AEDPA
and (2) the precedent that constrains us to accept the state court’s interpretation of the
7 Before we issued this COA, another round of habeas proceedings occurred
because the district court originally entered a “hybrid disposition” that “improperly
dismisse[d] unexhausted claims while ruling on the merits of exhausted claims.” See
Hawes v. Pacheco, 737 F. App’x 905, 906 (10th Cir. 2018) (unpublished). We need not
recount those proceedings for the purposes of this appeal.
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Wyoming kidnapping statute, we are compelled to deny Mr. Hawes habeas relief. His
arguments, which largely quarrel with the state court’s interpretation of state law, do not
convince us otherwise.
A. Restrictions on Habeas Review
This appeal implicates the restrictions on habeas review (1) requiring a federal
court to defer under AEDPA to the state court’s merits decision rejecting a constitutional
claim and (2) prohibiting a federal court from interpreting state law differently from the
state court decision under review.
As we explain below, when a federal court considers a § 2254 habeas petition, it
reviews a state court’s denial of an alleged violation of federal law. We thus must focus
on the Wyoming state court’s ruling in January 2017 that Mr. Hawes did not suffer a
constitutional violation based on the trial court’s placing the burden on him to show safe
release under the Wyoming kidnapping statute.
Rather than focus on that decision, the dissent concentrates on whether the
Wyoming Supreme Court’s 1989 decision in Loomer interpreting the statute is correct as
a matter of state law. But our habeas review under AEDPA is limited to whether the state
court’s application of the statute in Mr. Hawes’s case violated clearly established
Supreme Court law, not whether the state court misinterpreted Wyoming law. Under this
standard, we must affirm.
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AEDPA Deference
On habeas review of a state conviction, AEDPA “requires federal courts to give
significant deference to state court decisions” on constitutional issues. See Lockett v.
Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013); see also Hooks v. Workman, 689 F.3d
1148, 1163 (10th Cir. 2012) (“This highly deferential standard for evaluating state-court
rulings demands that state-court decisions be given the benefit of the doubt.” (alterations
and quotations omitted)).
When a state court has adjudicated the merits of a claim and denied relief, a
federal court may grant habeas relief only if 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 in the State
court proceeding,” id. § 2254(d)(2).
“Clearly established law is determined by the United States Supreme Court, and
refers to the Court’s holdings, as opposed to the dicta.” Lockett, 711 F.3d at 1231
(quotations omitted). These “holdings . . . must be construed narrowly and consist only
of something akin to on-point holdings.” House v. Hatch, 527 F.3d 1010, 1015 (10th Cir.
2008).
A state court decision is “contrary to” clearly established federal law “if the state
court applies a rule different from the governing law set forth in [Supreme Court] cases,
or if it decides a case differently than [the Supreme Court has] done on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (quotations omitted).
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A “decision is an ‘unreasonable application’ of clearly established federal law if it
identifies the correct governing legal principle . . . but unreasonably applies that principle
to the facts of petitioner’s case.” Underwood v. Royal, 894 F.3d 1154, 1162 (10th Cir.
2018) (quotations omitted); see also Bell, 535 U.S. at 694. “[T]he ultimate focus of the
inquiry is whether the state court’s application of the clearly established federal law is
objectively unreasonable.” House, 527 F.3d at 1019 (citing Bell, 535 U.S. at 694).
But “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011). Habeas
relief may be granted only if “there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with the Supreme Court’s precedents.” Coddington v.
Sharp, 959 F.3d 947, 953 (10th Cir. 2020) (quotations omitted).
State Law and AEDPA Review
“In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991). “[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.” Id. at 67-68. Thus, the
Supreme Court has “repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per
curiam). “To the extent [the petitioner] argues the state court erroneously interpreted and
applied state law, that does not warrant habeas relief[.]” Boyd v. Ward, 179 F.3d 904,
916 (10th Cir. 1999).
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We find instructive our decision in Anderson-Bey v. Zavaras, 641 F.3d 445 (10th
Cir. 2011). There, a habeas petitioner challenged the sufficiency of the evidence to
convict him under state law. See id. at 448. We explained that a sufficiency challenge
requires that we “first determine the elements of the offense and then examine whether
the evidence suffices to establish each element.” Id. “State law governs what the
elements are.” Id. “[I]f the defendant argued that the state court erred by holding that the
prosecution did not need to prove his intent to kill before he arrived at the scene of the
crime,” the habeas “challenge would clearly be to an interpretation of state law,” which
would be “barred by Estelle.” See id. “[S]tate law determines the parameters of the
offense and its elements and a federal court may not reinterpret state law. We, thus,
accept the state court’s interpretation of [its criminal statutes].” Tillman v. Cook, 215
F.3d 1116, 1131-32 (10th Cir. 2000) (brackets, quotations, and citations omitted).8
8 Due process fairness may preclude certain state court interpretations of state law.
See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas review of a state
court’s application of a [state law] is limited, at most, to determining whether the state
court’s finding was so arbitrary or capricious as to constitute an independent due process
or Eighth Amendment violation.”); Rogers v. Tennessee, 532 U.S. 451, 457 (2001)
(“Deprivation of the right to fair warning . . . can result both from vague statutory
language and from an unforeseeable and retroactive judicial expansion of statutory
language that appears narrow and precise on its face.”); see also Leatherwood v.
Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017) (“A prisoner may seek relief, however, if
a state law decision is so fundamentally unfair that it implicates federal due process.”).
Although Mr. Hawes pressed a due-process void-for-vagueness challenge before
the federal district court, that court found the claim procedurally defaulted. See Doc.
10715021 at 10 n.5. And Mr. Hawes “omitted his vagueness claim” when he sought this
COA from us. See id. (quoting Aplt. Br. at 6 n.1). He thus has waived a due process
argument based on the state court’s interpretation of state law. See United States v. Cruz-
Rodriguez, 570 F.3d 1179, 1185 (10th Cir. 2009) (identifying the “classic waiver
situation” as when “a party actually identified the issue, deliberately considered it, and
then affirmatively acted in a manner that abandoned any claim on the issue” (quotations
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Here, the state court’s interpretation of Wyoming kidnapping law in Mr. Hawes’s
case followed Loomer and Rathbun. See ROA, Vol. I at 485-86. In short, Loomer held
and Rathbun reaffirmed that once the prosecution proves kidnapping under subsections
(a) and (b) of the statute, the sentence is 20 years to life under subsection (d). See
Loomer, 768 P.2d at 1046; Rathbun, 257 P.3d at 37-39; see also ROA, Vol. I at 485-86.
No proof of lack of safe release is required. See Loomer, 768 P.2d at 1046; Rathbun, 257
P.3d at 37-39; see also ROA, Vol. I at 485-86. 9 The defendant must prove safe release to
reduce the sentence range under subsection (c). See Loomer, 768 P.2d at 1046-47;
Rathbun, 257 P.3d at 37-39; see also ROA, Vol. I at 485-86.10
omitted); see also Anderson-Bey, 641 F.3d at 453 n.1 (noting that the petitioner had
waived the argument that if the state courts upholding his conviction “were merely
interpreting state law, then the change in law was applied retroactively, thereby violating
his due-process rights”).
9 The Wyoming Supreme Court did not explain in Loomer or Rathbun how the
conditional clause in subsection (d)—“If the defendant does not voluntarily release the
victim substantially unharmed and in a safe place prior to trial,” Wyo. Stat. § 6-2-
201(d)—serves any function.
10 The dissent argues “the Wyoming Supreme Court changed course in McDermott
v. State, 870 P.2d 339 (Wyo. 1994),” and interpreted the statute “contrary to that in
Loomer.” Dissent at 5-6. But the McDermott Court quoted Loomer’s central holding—
that the Wyoming kidnapping “statute defines a single crime, kidnapping, which carries a
sentence of 20 years to life, id. at 347 (quoting Loomer, 768 P.2d at 1046)—without
contesting it. As Mr. Hawes’s counsel stated at oral argument, despite the “[in]artful”
jury instruction the McDermott Court was reviewing, see id., it was “trying to . . . follow
Loomer,” see Oral. Arg. at 4:56-5:00. And he conceded that the jury instruction
discussed by the dissent, see Dissent at 5-6, “doesn’t move the ball forward one way or
the other for us,” see Oral Arg. at 5:24-28.
Even if the state court decision that we review had incorrectly interpreted
Wyoming law, it would not matter. See Turrentine v. Mullin, 390 F.3d 1181, 1191 (10th
Cir. 2004) (“[T]he fact that [a jury] instruction was allegedly incorrect under state law is
not a basis for habeas relief.” (second alteration in original) (quoting Estelle, 502 U.S. at
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We must accept this interpretation of Wyoming’s kidnapping statute for the
purpose of our habeas review. See Estelle, 502 U.S. at 67-68; Bradshaw, 546 U.S. at
76.11
* * * *
In sum, our task on habeas review is to “decid[e] whether a conviction violated the
Constitution.” Estelle, 502 U.S. at 68. In doing so, we may afford relief under AEDPA
only if the state court’s decision in Mr. Hawes’s case was contrary to or an unreasonable
application of clearly established United States Supreme Court law. We must accept the
state court’s interpretation of state law.
B. Mr. Hawes’s Habeas Claim Fails
The state court’s application of the Wyoming kidnapping statute did not violate
Apprendi and Alleyne. Apprendi and Alleyne apply to facts that increase a sentence. See
Apprendi, 530 U.S. at 490; Alleyne, 570 U.S. at 113 & n.2. The state court followed
71-72)); McCormick v. Kline, 572 F.3d 841, 850 (10th Cir. 2009) (“Even if Kansas did
commit . . . errors under state law, . . . it is simply not our province ‘to reexamine state-
court determinations on state-law questions.’” (quoting Estelle, 502 U.S. at 68)). The
remedy for an alleged error of state law is with the state courts—and here, the state court
rejected Mr. Hawes’s preferred reading of state law. See Tyler v. Nelson, 163 F.3d 1222,
1226 (10th Cir. 1999) (“We lack authority to correct errors of state law made by state
courts.”).
11 In Mullaney, the Supreme Court said, “On rare occasions the Court has re-
examined a state-court interpretation of state law when it appears to be an ‘obvious
subterfuge to evade consideration of a federal issue.’” Mullaney, 421 U.S. at 691 n.11
(quoting Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129 (1945)). Given that the
state court decision we review here relied on Loomer’s construction of the kidnapping
statute—which predated Apprendi and Alleyne by over a decade—we do not see how the
state court’s interpretation and application of state law could be an “obvious subterfuge to
evade consideration of a federal issue.” See id. (quotations omitted).
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Loomer and Rathbun’s interpretation of the statute, which found that safe release can
only reduce a sentence, not increase it. See Loomer, 768 P.2d at 1046-47; Rathbun, 257
P.3d at 37-39.
We also do not see a violation of Mullaney, which requires the prosecution to
prove “every ingredient of an offense.” See Patterson, 432 U.S. at 215. Again, the state
court followed Loomer and Rathbun’s interpretation that only subsections (a) and (b) of
the Wyoming kidnapping statute define the ingredients of kidnapping, which the
prosecution must prove. See Loomer, 768 P.2d at 1046; Rathbun, 257 P.3d at 37-38.
We thus affirm the district court’s dismissal of Mr. Hawes’s Sixth and Fourteenth
Amendment § 2254 challenge to the state court’s application of Wyoming’s kidnapping
statute. We elaborate on these conclusions in our following discussion of Mr. Hawes’s
counterarguments.
C. Mr. Hawes’s Arguments
Mr. Hawes argues the state court violated Apprendi/Alleyne and Mullaney.12 His
arguments cannot overcome the deference standards described above.
Apprendi/Alleyne Arguments
Mr. Hawes makes two arguments based on Apprendi and Alleyne. First, he
contends the text of the Wyoming kidnapping statute makes safe release a fact question
12 We must “measure state-court decisions against [the Supreme] Court’s
precedents as of the time the state court renders its decision.” Greene v. Fisher, 565 U.S.
34, 38 (2011) (emphasis and quotations omitted). Alleyne, Apprendi, and Mullaney were
decided before the state court decision here.
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that the State must prove. We reject this argument because a federal habeas court may
not second guess the state court’s interpretation of state law. Second, he contends that
the effect of requiring him to prove safe release violated Apprendi and Alleyne. We reject
this argument based on AEDPA deference.
a. Statutory text argument
Mr. Hawes posits that “[t]he statute provides no penalty for [kidnapping] standing
alone, but rather . . . establish[es] two possible statutory penalty ranges, which . . . depend
on whether or not the defendant safely released the victim.” Aplt. Suppl. Br. at 16. With
safe release, the maximum statutory penalty is 20 years in prison, and there is no
sentencing floor. See Wyo. Stat. § 6-2-201(c). Without safe release, the maximum
penalty is life in prison, and the sentencing floor is 20 years. See Wyo. Stat. § 6-2-
201(d). Because “the question of safe release is the sole factor” “determining whether a
defendant faces no mandatory minimum, or one of twenty years,” and because it also “is
the sole factor . . . authoriz[ing] a statutory maximum lifetime imprisonment,” not
requiring a “jury . . . to make that determination beyond a reasonable doubt” violates
Apprendi and Alleyne. See Aplt. Suppl. Br. at 19-20.
We reject this argument because it disregards the state court’s interpretation of the
statute. “[A] state court’s interpretation of state law . . . binds a federal court sitting in
habeas corpus.” Bradshaw, 546 U.S. at 76.13 Again, the state court decision we review
13 We appreciate the dissent’s discussion of Wyoming kidnapping cases, but its
pointing to possible inconsistencies ignores the limits on a federal habeas court’s second-
guessing of how the state court in Mr. Hawes’s case interpreted state law. See Johnson v.
Mullin, 505 F.3d 1128, 1141 (10th Cir. 2007) (dismissing without further analysis most
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interpreted the Wyoming kidnapping statute to operate as stated in Loomer and Rathbun.
See ROA, Vol. I at 485-86. Under Loomer and Rathbun, once the prosecution proves
kidnapping under subsections (a) and (b), the sentence is 20 years to life under subsection
(d). See Loomer, 768 P.2d at 1046; Rathbun, 257 P.3d at 37-39. To reduce his sentence
range under subsection (c), the defendant must prove safe release. See Loomer, 768 P.2d
at 1046-47; Rathbun, 257 P.3d at 37-39. Thus, proof of whether there was safe release
can only reduce the defendant’s sentencing exposure. Apprendi and Alleyne, though,
apply only to facts that increase a sentence. See Apprendi, 530 U.S. at 490; Alleyne, 570
U.S. at 113 & n.2. Although Mr. Hawes’s reading of the statute may be plausible, it
conflicts with Loomer and Rathbun’s interpretation. Our review is limited to the state
post-conviction court’s analysis, which relied on Loomer and Rathbun.
b. Unconstitutional effect argument
Mr. Hawes next argues that the “description of safe release as a ‘mitigating’ fact is
entitled to no weight in the federal constitutional analysis, and, in any event, is wrong.”
Aplt. Suppl. Br. at 23 (emphasis omitted). He contends “the ‘relevant inquiry is one not
of form, but of effect.’” Id. at 24 (quoting Apprendi, 530 U.S. at 494). And “the effect of
of a petitioner’s arguments, because “they all focus exclusively on the proper
interpretation of Oklahoma state law”); Anderson-Bey, 641 F.3d at 452-53 (noting that
“[a]lthough it would have been reasonable to interpret” a state’s criminal law in the
fashion the petitioner argued, “the state court did not adopt that interpretation,” and thus
his “challenge to the affirmance of his conviction is in essence a challenge to the [state’s]
interpretation of the state [criminal] statute, a challenge that we cannot entertain in a
proceeding under § 2254”); Williams v. Trammell, 782 F.3d 1184, 1195 (10th Cir. 2015)
(“Although it would have been reasonable to reach a different conclusion, the [state
court] did not—and its interpretation is authoritative.”).
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the safe release provisions in § 6-2-201 [is] clear—the question of safe release is the
question of which penalty provision applies.” Aplt. Reply Br. at 3. Thus, because
requiring him to prove safe release had the effect of aggravating his sentence, Mr. Hawes
requests habeas relief.
This argument finds support in passages from Apprendi and Mullaney. In
Apprendi, the Court “dismissed the possibility that a State could circumvent the
protections of Winship merely by ‘redefin[ing] the elements that constitute different
crimes, characterizing them as factors that bear solely on the extent of punishment.’”
530 U.S. at 485 (alteration in original) (quoting Mullaney, 421 U.S. at 698). 14 And in
Mullaney, the Court endorsed “an analysis that looks to the operation and effect of the
law as applied and enforced by the state.” See 421 U.S. at 699 (quotations omitted).
But even considering the effect of applying Wyoming’s kidnapping statute to Mr.
Hawes, we conclude he has not made a showing under AEDPA that the state court
unreasonably applied clearly established Supreme Court law. First, Apprendi and Alleyne
did not address a situation where, as here, the defendant’s proof of a fact—safe release—
would lower the minimum and maximum sentence. Second, the Apprendi Court said that
14 Indeed, the Apprendi Court agreed with the New Jersey Supreme Court’s
conclusion that “merely because the state legislature placed its . . . sentence ‘enhancer’
‘within the sentencing provisions’ of the criminal code ‘does not mean that the
finding . . . is not an essential element of the offense.’” See 530 U.S. at 495 (quoting
State v. Apprendi, 731 A.2d 485, 492 (1999), rev’d, 530 U.S. 466 (2000)). Otherwise,
“the Legislature could just as easily allow judges, not juries, to determine if a kidnapping
victim has been released unharmed.” Id. at 472 (quoting 731 A.2d at 492).
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it “has often recognized [the distinction] between facts in aggravation of punishment and
facts in mitigation.” 530 U.S. at 490 n.16 (citation omitted).15
A plausible extension of Apprendi/Alleyne might support Mr. Hawes, but that is
not the same as showing under AEDPA that the state court unreasonably applied clearly
established Supreme Court law.16
Mullaney Argument
Mr. Hawes further argues that application of the Wyoming kidnapping statute to
him violated Mullaney. AEDPA deference also blocks habeas relief based on this
argument.
Mr. Hawes contends that “the state impermissibly presumes that a defendant did
not voluntarily release the victim substantially unharmed in a safe place prior to trial,”
Aplt. Suppl. Br. at 18, and has “‘has affirmatively shifted the burden of proof to the
15 Mr. Hawes also points to the information charging him under subsection (d) and
various Wyoming decisions distinguishing between “simple” and “aggravated”
kidnapping as demonstrating that safe release does not function as a mitigator under
Wyoming law.
But the state court decision here was consistent with Loomer and Rathbun, which
held the kidnapping statute “defines a single crime,” Loomer, 768 P.2d at 1046, or “one
crime,” Rathbun, 257 P.3d at 39, with a default penalty of 20 years to life, see Loomer,
768 P.2d at 1046; Rathbun, 257 P.3d at 39. Under this construction, “safe release”
functions as a mitigator. See Loomer, 768 P.2d at 1046-47; Rathbun, 257 P.3d at 37-39.
And we must accept the state court’s interpretation of Wyoming’s kidnapping statute.
See Estelle, 502 U.S. at 67-68; Bradshaw, 546 U.S. at 76 (2005).
16 The dissent only briefly addresses AEDPA: “[T]he state district court’s
decision . . . was contrary to clearly established federal law.” Dissent at 15. This
conclusion, however, is based on the dissent’s reading the Wyoming kidnapping statute
de novo, which, as we have explained, this court cannot do.
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defendant’ to ‘prove the critical fact in dispute,’” id. (quoting Mullaney, 421 U.S. at 701).
He contends that “Mullaney makes clear that such a provision cannot be presumed
satisfied and then flipped to the defendant to disprove.” Id. at 23.
Mr. Hawes’s argument has some force but fails under AEDPA. As noted above,
Mullaney involved a state court’s interpretation of the state’s homicide statute that
presumed malice and placed the burden on the defendant to prove heat of passion to
reduce murder to manslaughter. See 421 U.S. at 686 & n.3. The Supreme Court found
this presumption violated the defendant’s due process right to have the prosecution prove
malice beyond a reasonable doubt. See id. at 704.
Mr. Hawes argues the Wyoming courts did the same thing to him. That is, under
Loomer and Rathbun, a lack of safe release was presumed once the State proved
kidnapping under subsections (a) and (b). The burden was then placed on him to prove
safe release to reduce his sentence from subsection (d)’s range to subsection (c)’s.
Mr. Hawes has not shown under AEDPA, however, that the state court’s rejection
of his constitutional claim was contrary to or an unreasonable application of clearly
established Supreme Court law. First, Mullaney concerned a presumed fact that
determined whether the substantive offense was murder or manslaughter. See Mullaney,
421 U.S. at 686. Mr. Hawes’s appeal concerns a fact that affects his sentence, not his
substantive offense. See Loomer, 768 P.2d at 1046; Rathbun, 257 P.3d at 39. Second,
the state district court in this case cited Patterson as support for imposing the burden of
proving safe release on Mr. Hawes. See ROA, Vol. I at 486. In Patterson, decided after
Mullaney, the Court said that a state may impose the burden to prove an affirmative
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defense on the defendant. See 432 U.S. at 210. Although Mr. Hawes may be correct that
Mullaney is closer to his case, we cannot say the Wyoming court unreasonably relied on
Patterson.
III. CONCLUSION
We affirm the district court.
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19-8047, Hawes v. Pacheco
MORITZ, Circuit Judge, dissenting.
Gregory Hawes contends that Wyoming’s kidnapping statute required him to
prove an element of his crime—that he safely released his victim—in violation of the
constitutional principles that require the state to prove each element of a crime
beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358 (1970). The
majority acknowledges that Hawes “makes colorable arguments” and further
describes one of those arguments as having “some force.” Maj. Op. 2, 27. But the
majority rejects Hawes’s arguments because it finds itself “constrain[ed]” by the
Wyoming Supreme Court’s interpretation of its kidnapping statute in Loomer v.
State, 768 P.2d 1042 (Wyo. 1989). Maj. Op. 15. Indeed, as Hawes points out, the
State’s “entire argument turns on this [c]ourt deferring to Loomer[].” Rep. Br. 6. But
after its 1989 decision in Loomer, the Wyoming Supreme Court frequently
interpreted and applied its kidnapping statute inconsistently with Loomer. Because
we should not blindly accept these inconsistencies, defer to all such differing
interpretations, or select the interpretation we find the most reasonable, I would
conclude that we owe no deference to Loomer. I would then interpret Wyoming’s
kidnapping statute anew, unconstrained by any particular state-court interpretation.
Under any de novo interpretation, Hawes’s “colorable arguments” become much
more than that: They succeed. I would accordingly grant Hawes habeas relief and
therefore respectfully dissent.
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I. The Wyoming Supreme Court’s Inconsistent Interpretations of
Wyoming’s Kidnapping Statute
Quoted in full, Wyoming’s kidnapping statute provides:
(a) A person is guilty of kidnapping if he [or she] unlawfully removes
another from his [or her] place of residence or business or from the
vicinity where he [or she] was at the time of the removal, or if he [or
she] unlawfully confines another person, with the intent to:
(i) Hold for ransom or reward, or as a shield or hostage;
(ii) Facilitate the commission of a felony; or
(iii) Inflict bodily injury on or to terrorize the victim or another.
(b) A removal or confinement is unlawful if it is accomplished:
(i) By force, threat[,] or deception; or
(ii) Without the consent of a parent, guardian[,] or other person
responsible for the general supervision of an individual who is
under the age of [14] or who is adjudicated incompetent.
(c) If the defendant voluntarily releases the victim substantially
unharmed and in a safe place prior to trial, kidnapping is a felony
punishable by imprisonment for not more than [20] years.
(d) If the defendant does not voluntarily release the victim substantially
unharmed and in a safe place prior to trial, kidnapping is a felony
punishable by imprisonment for not less than [20] years or for life
except as provided in [Wyo. Stat. Ann. §] 6-2-101.
Wyo. Stat. Ann. § 6-2-201. 1
Interpreting this statute in Loomer, the Wyoming Supreme Court stated that
§ 6-2-201 “defines a single crime, kidnapping, which carries a sentence of 20 years to
1 I refer to the factual predicate in subsection (c) as “safe release” and the
mirror-image factual predicate in subsection (d) as “nonrelease.”
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life.” 768 P.2d at 1046. In other words, according to Loomer, the crime of kidnapping
involves subsections (a), (b), and (d): Subsection (a) describes the criminal conduct,
subsection (b) defines certain key terms in subsection (a), and subsection (d) provides
the base sentence for the crime. See id.
Yet by its plain terms, subsection (d) provides more than just a base
sentence—it also includes a factual predicate, stating that kidnapping is a felony
subject to a 20-to-life sentence only “[i]f the defendant does not voluntarily release
the victim substantially unharmed and in a safe place prior to trial.” § 6-2-201(d)
(emphasis added). Nevertheless, Loomer ignored that portion of subsection (d). See
768 P.2d at 1046. Or, as the majority puts it, “[t]he Wyoming Supreme Court did not
explain in Loomer . . . how the conditional clause in subsection (d) . . . serves any
function.” 2 Maj. Op. 20 n.9.
As for subsection (c), Loomer concluded that it “describes mitigating
circumstances” that could “provide[] for a reduced sentence,” 768 P.2d at 1046, of
“not more than [20] years,” § 6-2-201(c). Loomer further held that the defendant bore
the burden of proving these “mitigating circumstances,” noting that the jury
instruction at issue in that case had “incorrect[ly]” placed that burden on the state.
2 As a matter of statutory interpretation, Loomer is puzzling. In Wyoming, as
in federal courts, “[e]very word in a statute must be given meaning.” Keene v. State,
812 P.2d 147, 150 (Wyo. 1991) (quoting In re Patch, 798 P.2d 839, 841 (Wyo.
1990)); see also Moskal v. United States, 498 U.S. 103, 109 (1990) (noting “the
established principle that a court should ‘“give effect, if possible, to every clause and
word of a statute”’” (quoting United States v. Menasche, 348 U.S. 528, 538–39
(1955))). Yet Loomer seemingly ignored this principle in disregarding the factual
predicate in subsection (d).
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768 P.2d at 1047. Notably, the “mitigating circumstances” in subsection (c) are a
mirror image of the factual predicate outlined in subsection (d): Both ask whether
“the defendant voluntarily release[d] the victim substantially unharmed and in a safe
place prior to trial.” Id. at 1046; see also § 6-2-201(c), (d). But according to Loomer,
that mirror-image sentence has meaning in subsection (c)—that is, it “describes
mitigating circumstances” the defendant must prove; yet it has no meaning
whatsoever in subsection (d), which describes only the base sentence of 20 years to
life. 768 P.2d at 1046–47. And that base sentence apparently applies regardless of
whether its factual question—nonrelease—is answered. See id. at 1047 (noting that
state has no burden to prove factual conditions of nonrelease).
In any event, Loomer clearly held that § 6-2-201 describes a single crime of
kidnapping. Id. at 1046. To prove this single crime, the state need only establish that
the defendant’s conduct satisfies subsections (a) and (b). See id. If the state does so,
the defendant is subject to the 20-to-life sentence provided in subsection (d); no proof
of nonrelease is required, despite subsection (d)’s plain language stating otherwise.
See id. Thus, under Loomer, neither a crime of “aggravated kidnapping” under
subsection (d) nor a crime of “simple kidnapping” under subsection (c) exists: There
is only one crime—kidnapping. See id. Relatedly, the state is never required to prove
nonrelease in order to prove this single crime of kidnapping; nor is it required to
prove nonrelease as an aggravating sentencing factor. Instead, safe release is relevant
only as a mitigating sentencing factor, and it must be proven by the defendant. See id.
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at 1046–47. Moreover, although the jury decides that fact, it relates only to the
sentence and is not relevant to conviction itself, according to Loomer. See id.
But a mere five years later, the Wyoming Supreme Court changed course in
McDermott v. State, 870 P.2d 339 (Wyo. 1994), overruled in part on other grounds
by Jones v. State, 902 P.2d 686 (Wyo. 1995). There, the state originally charged the
defendant with “one count of kidnapping.” Id. at 342–43. But at a later hearing, “the
information was orally amended . . . to charge the kidnapping as an aggravated
kidnapping because [the victim] had not been released by [the defendant]
substantially unharmed.” Id. at 343 (emphasis added). Charging “aggravated
kidnapping” because the defendant did not safely release the victim directly
contradicts Loomer’s holding that kidnapping is only one crime in Wyoming and that
nonrelease is not an element of that crime. Yet the McDermott court affirmed the
conviction, going so far as to characterize subsection (d) as “[t]he enhancement
portion of the kidnapping statute,” despite simultaneously reiterating Loomer’s
statement that subsection (c) “describ[es] mitigating circumstances.” Id. at 346–47
(emphasis added) (citing Loomer, 768 P.2d at 1046).
Additionally, the jury instruction at issue in McDermott specifically included
nonrelease as one of “[t]he necessary elements of the crime of aggravated
kidnapping” that the state was required to prove beyond a reasonable doubt. Id. at
346 (emphases added). This is contrary to Loomer’s holding that safe release is a
mitigating circumstance to be proved by the defendant. But the McDermott court
inexplicably approved the instruction as “legally correct.” Id. at 347. Thus, despite
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giving Loomer lip service, the Wyoming Supreme court in McDermott interpreted
§ 6-2-201 in a manner directly contrary to that in Loomer. 3
And McDermott is not unique: Many other post-Loomer Wyoming Supreme
Court cases, none of which cite Loomer, involve charges of, convictions for, and
pleas to aggravated kidnapping, a crime that does not exist post-Loomer. 4 See, e.g.,
Bird v. State, 901 P.2d 1123, 1127 (Wyo. 1995) (noting that defendant pleaded guilty
to “aggravated kidnapping”); Kolb v. State, 930 P.2d 1238, 1239–40 (Wyo. 1996)
(explaining that jury convicted defendant of “aggravated kidnap[p]ing, [§] 6-2-
201(a)(iii)(d)”); Gould v. State, 151 P.3d 261, 264 & n.5, 266–67 (Wyo. 2006)
(explaining that subsections (a)(iii) and (d) “set out the definition of aggravated
kidnapping,” that defendant was convicted of “aggravated kidnapping,” and that it
previously affirmed this conviction); Moore v. State, 80 P.3d 191, 193–94 (Wyo.
2003) (explaining that defendant “was originally charged with . . . two counts of
aggravated kidnapping” but was instead convicted of “two counts of kidnapping” and
sentenced within lower range of subsection (c)); Herrera v. State, 64 P.3d 724, 725
(Wyo. 2003) (describing plea agreement under which state agreed to “reduce the
3 Notably, in referring to nonrelease as both an element of aggravated
kidnapping and a sentencing enhancement and in approving a jury instruction that
places the burden on the state to prove nonrelease, McDermott appears to align with
the statute as written—that is, it appears to recognize all of subsection (d) rather than
only the sentencing portion of subsection (d).
4 Similarly, this court has described subsection (d) as “impos[ing] an enhanced
punishment ‘[i]f the defendant does not voluntarily release the victim substantially
unharmed and in a safe place prior to trial.’” Daves v. Wilson, 632 F. App’x 470, 474
(10th Cir. 2015) (unpublished) (second alteration in original) (quoting § 6-2-201(d)).
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‘aggravated’ kidnapping charge to ‘simple’ kidnapping, thereby reducing the possible
sentence length”); Winters v. State, 446 P.3d 191, 196, 198, 219 & n.20 (Wyo. 2019)
(noting that state charged defendant “with aggravated kidnapping under . . . § 6-2-
201(a)(ii), (b)(ii), and (d)”; explaining that defendant “was actually convicted of
aggravated kidnapping because the jury found [he] did not voluntarily release
[victim] substantially unharmed and in a safe place prior to trial”); Duffy v. State, 789
P.2d 821, 853 n.21 (Wyo. 1990) (Urbigkit, J., dissenting) (mentioning “kidnapping
with physical harm, [§] 6-2-201, [20] years to life”).
Similarly contrary to Loomer’s holding that kidnapping is a single crime
comprising subsections (a) and (b) and the sentence provided in subsection (d), a
second set of contradictory post-Loomer cases involve kidnapping under subsection
(c). According to Loomer, subsection (c) is only a mitigating factor that can reduce a
sentence. See 768 P.2d at 1046–47. Thus, after Loomer, the state cannot charge or
convict a defendant under subsection (c). But the state has routinely done just that,
with the imprimatur of the Wyoming Supreme Court. For instance, in Dockter v.
State, the state charged the defendant “with kidnapping with voluntary release in
violation of . . . § 6-2-201.” 396 P.3d 405, 407 (Wyo. 2017). In this appeal, the State
asserts that Dockter “do[es] not make [a] distinction between” subsections (c) and (d)
because it “analyz[ed] the elements of kidnapping without mentioning subsections (c)
and (d).” Aplee. Br. 15–16. But the State fails to explain how being charged “with
kidnapping with voluntary release” could refer to anything other than kidnapping
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under subsection (c)—a crime that, under Loomer, does not exist. Dockter, 369 P.3d
at 407 (emphasis added).
And Dockter does not stand alone. Another example is Major v. State, 83 P.3d
468 (Wyo. 2004). There, the Wyoming Supreme Court explained that under the
applicable plea agreement, the state had amended the charge for “kidnapping in
violation of . . . § 6-2-201 . . . (d)” to charge the defendant under subsection (c) in
order “to reflect the fact that the victim had been released ‘substantially unharmed.’”
Id. at 470, 472 n.3 (quoting § 6-2-201(c)). In a variety of other cases, none of which
cite Loomer, defendants have been charged with, have been convicted of, or have
pleaded guilty to kidnapping under subsection (c). See, e.g., Eustice v. State, 871
P.2d 682, 683 (Wyo. 1994) (explaining that defendant pleaded guilty “to one count of
kidnapping in violation of . . . § 6-2-201(a)(ii), (b)(i), and (c)”); Darrow v. State, 824
P.2d 1269, 1269 (Wyo. 1992) (explaining that defendant was convicted of
kidnapping under “[§] 6-2-201(a)(i), (ii), (c)”); 5 Alcalde v. State, 74 P.3d 1253,
1255–56 (Wyo. 2003) (stating that defendant was charged with and convicted of
“kidnapping in violation of . . . § 6-2-201(a)(iii), (b)(i)[,] and (c)”); Royball v. State,
210 P.3d 1073, 1074 (Wyo. 2009) (explaining that state charged defendant with
“kidnapping in violation of . . . § 6-2-201(a)(i), (b)(i)[,] and (c)”); Appling v. State,
377 P.3d 769, 769 (Wyo. 2016) (Mem.) (noting that defendant pleaded guilty to “one
5 Even the State acknowledges that Darrow involved “a kidnapping charged
under subsection (c).” Aplee. Br. 16. But it does not explain how, after Loomer, a
defendant could be charged under subsection (c) in the first instance.
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count of kidnapping” and citing “§ 6-2-201(a)(iii) & (c)”). The Wyoming Supreme
Court’s multiple references to subsection (c) in these cases are at odds with Loomer’s
designation of subsection (c) as mitigating circumstances to be proven by a defendant
after that defendant is found guilty of kidnapping under subsections (a) and (b). 6
I acknowledge that some post-Loomer cases do not directly contradict its
holdings. For instance, in Vaught v. State, the jury convicted the defendant of
“kidnapping under . . . § 6-2-201(a)(iii), (d),” and the district court sentenced him
accordingly, based on facts that appear to support the conclusion that the defendant
did not safely release the victim (the victim escaped while the defendant was in
another room). 366 P.3d 512, 514–15 (Wyo. 2016). The same is true of several other
cases cited by the State. See Counts v. State, 277 P.3d 94, 99–100, 106–08, 110–11
(Wyo. 2012) (noting defendant was charged with and convicted of “kidnapping in
6 It is worth noting that in a subset of post-Loomer cases, the Wyoming
Supreme Court has approved charges of, pleas to, convictions for, and sentences for
kidnapping under subsection (c) when the facts, as recounted by the Wyoming
Supreme Court, strongly suggest the defendant did not safely release the victim or
victims. See Volpi v. State, 419 P.3d 884, 887–88, 892 (Wyo. 2018) (explaining that
defendant repeatedly “attacked” victim and victim was “rescued by law
enforcement,” yet defendant was sentenced to eight to 16 years’ imprisonment—a
sentence possible only if defendant proved mitigating circumstances under subsection
(c)); Eustice, 871 P.2d at 683 (noting guilty plea to kidnapping under subsection (c)
despite also explaining that defendant drove with victim, “continuing to beat her
along the way,” until law enforcement located them); Moore, 80 P.3d at 193–94
(explaining that jury convicted defendant of kidnapping, resulting in five to ten
years’ imprisonment for each count, but also noting that defendant repeatedly beat
both victims until he “[e]ventually . . . tired” and “the beatings subsided”); Major, 83
P.3d at 470, 472 & n.3 (noting guilty plea to kidnapping under subsection (c) despite
also explaining that victim was not “freed” until defendant was arrested); Darrow,
824 P.2d at 1269–70 (noting sentence within lower range but also explaining that
victims “escaped”).
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violation of . . . § 6-2-201(a)(iii)” and sentenced to life in prison based on facts
supporting conclusion of nonrelease; quoting jury instruction that did not require
state to prove nonrelease); Dean v. State, 77 P.3d 692, 694–96, 699 (Wyo. 2003)
(affirming conviction for “kidnapping” arising from facts supporting conclusion of
nonrelease; quoting jury instruction that did not require state to prove nonrelease);
Doud v. State, 845 P.2d 402, 403, 407–08 (Wyo. 1993) (affirming conviction for
“kidnapping,” citing Loomer to describe subsection (c) as “mitigating factors,” and
finding “sufficient evidence showing that [defendant] did not release his victim
voluntarily”); 7 Keene, 812 P.2d at 148–50 (discussing and vacating defendant’s
kidnapping convictions based solely on subsection (a) and citing Loomer during
discussion about Model Penal Code). But these cases only serve to further highlight
the inconsistency of the Wyoming Supreme Court’s interpretations and applications
of Wyoming’s kidnapping statute. 8
7 In referring to “sufficient evidence,” the Wyoming Supreme Court in Doud
arguably implied—contrary to Loomer—that the burden of showing nonrelease was
on the state. 845 F.3d at 408. A similar inconsistency appears in the court’s statement
that “[i]f the defendant fails to establish any one of the four elements contained in
subsection (c), his crime becomes punishable by imprisonment for not less than [20]
years.” Id. at 407 (emphasis added). This statement suggests, again contrary to
Loomer, that subsection (d) is not the base sentence.
8 Additionally, the State and the majority both rely on Rathbun v. State, which
referenced Loomer for the proposition that “[t]here is one crime—kidnapping—for
which the maximum sentence is as stated in [s]ubsection (d).” 257 P.3d 29, 39 (Wyo.
2011). Rathbun’s reliance on Loomer doesn’t permit the conclusion that Loomer is
the single controlling interpretation of § 6-2-201 for the simple reason that Rathbun
dealt with an attempted kidnapping. See id. at 31. And as the Rathbun court
recognized, “where there has not been a completed kidnapping . . . the mitigating
circumstances described in subsection (c) cannot occur.” Id. at 38. Further, although
Rathbun went on to opine that Loomer’s interpretation was constitutional, see id. at
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Tellingly, the State does not deny these inconsistencies, instead suggesting that
the conflicting cases are outliers. 9 But the sheer number of inconsistent cases and
results suggests something much more than that. It reveals that the Wyoming
Supreme Court has inconsistently interpreted and applied § 6-2-201 over the past 30
years. Loomer said that kidnapping was one crime comprising subsections (a) and
(b), which, if met, required the sentence of 20 years to life in subsection (d);
subsection (c) only provides mitigating circumstances. But in the decades since, the
state has consistently charged aggravated kidnapping under subsection (d). Further,
the state has consistently charged kidnapping under subsection (c) and its
accompanying lesser sentence, even though subsection (c)—according to Loomer—
concerns only mitigating circumstances. And notably, it appears from the above
recitation of cases that the state is charging defendants with the nonexistent
38–39, this court is not bound by such a conclusion. See Cunningham v. California,
549 U.S. 270, 293 n.16 (2007) (rejecting argument that state court’s “‘construction’
of [a state sentencing] law as consistent with the Sixth Amendment is authoritative,”
because state court’s “interpretation of federal constitutional law plainly does not
qualify for th[e] [United States Supreme] Court’s deference”).
9 The majority ignores these “possible” inconsistencies, instead characterizing
the above analysis of Wyoming kidnapping cases as irrelevant “second-guessing”
that is focused “on whether . . . Loomer . . . is correct as a matter of state law.” Maj.
Op. 16, 23 n.13. But determining the governing interpretation of the state statute of
conviction at issue in a habeas proceeding is a threshold inquiry of habeas review.
And my point is not that the interpretation in Loomer or in any other case is correct
or incorrect; nor do I quarrel with the legal proposition that habeas relief does not lie
for errors of state law. See, e.g., Anderson-Bey v. Zavaras, 641 F.3d 445, 448, 452–
53 (10th Cir. 2011) (rejecting challenge to state-court interpretation of state statute in
habeas proceeding). Instead, I review these cases to establish the significant
inconsistencies in the Wyoming Supreme Court’s interpretations and applications of
Wyoming’s kidnapping statute.
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“aggravated kidnapping” charge under subsection (d) and then offering defendants
reduced plea agreements to a similarly nonexistent “simple kidnapping” charge under
subsection (c). Most importantly for our purposes, the Wyoming Supreme Court has
repeatedly and consistently restated these facts and approved these convictions
without mentioning Loomer or recognizing the seeming impossibility of such
circumstances, post-Loomer.
It is true that state courts are the expositors of their own state law. Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975). And in conducting the above analysis, I do not
rely upon any error, apparent or otherwise, in these Wyoming cases. I aim only to
highlight their significant inconsistencies. And when, as here, the state’s highest
court has interpreted its own state statute in an inconsistent and conflicting manner, I
would not defer to any particular interpretation. Rather than ignore the
inconsistencies or designate one interpretation as deserving of deference, I would
interpret the statute anew. See Rael v. Sullivan, 918 F.2d 874, 877 (10th Cir. 1990)
(“In the absence of any indication to the contrary, we cannot assume that the
elements of extortion are different than those set forth in the instructions approved by
New Mexico’s courts.” (emphasis added)); Spring Creek Expl. & Prod. Co., LLC v.
Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1021 (10th Cir. 2018) (“In the absence of
a definitive resolution of a legal issue by [the Colorado Supreme Court], our task is to
predict how the Colorado Supreme Court would rule.” (emphasis added) (citing
United States v. DeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004))); cf. Breedlove v.
Moore, 279 F.3d 952, 963–64 (11th Cir. 2002) (deferring to state court’s application
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of state evidentiary law when that application “was completely consistent with prior
[state] evidentiary law”). 10
II. The Constitution’s Protections
The State’s entire argument rises and falls with Loomer—the State does not
argue that the kidnapping statute was constitutionally applied to Hawes in the
absence of Loomer’s supposedly controlling interpretation. Nevertheless, in the
interest of clarity, I briefly explain why the kidnapping statute, interpreted de novo,
violated Hawes’s constitutional rights.
I see three possible interpretations of § 6-2-201. Under the first, subsection (d)
provides the default penalty for the single crime of kidnapping, and nonrelease is an
element of that crime. Under the second, subsections (c) and (d) create distinct
crimes, and subsection (d) addresses “aggravated” kidnapping and its corresponding
penalty. Under either of these interpretations, nonrelease is an element of either the
single crime of kidnapping or the more specific crime of aggravated kidnapping that
10 Alternatively, because it seems that the Wyoming Supreme Court in Loomer
“interpreted” its own state law by rewriting it, this case may also present the rare
“extreme circumstance[]” in which federal courts are not “bound by the[]
constructions” of state courts. Mullaney, 421 U.S. at 691; see also id. at 691 n.11
(citing Terre Haute & Indianapolis R.R. Co. v. Indiana ex rel. Ketcham, 194 U.S.
579 (1904) as one such “rare occasion[]”); cf. Terre Haute & Indianapolis R.R. Co.,
194 U.S. at 587, 589 (“The [charter’s] language is plain. . . . The state court has
sustained a result which cannot be reached, except on what we deem a wrong
construction of the charter, without relying on unconstitutional legislation.”). After
all, a state legislature cannot circumvent a defendant’s constitutional rights by
redefining elements as sentencing factors. See Apprendi v. New Jersey, 530 U.S. 466,
485 (2000). Similarly, a state’s highest court should not be permitted to circumvent a
defendant’s constitutional rights by “interpreting” a statute to entirely ignore or erase
an element or aggravating sentencing factor.
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the state must prove beyond a reasonable doubt. See Winship, 397 U.S. at 364
(stating that due process “protects . . . against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which
[defendant] is charged”); Mullaney, 421 U.S. at 685 (holding that due process
requires “prosecution [to] prove beyond a reasonable doubt every fact necessary to
constitute the crime charged”).
Under the third interpretation, subsection (d) provides an aggravating factor
through which the state may seek an enhanced penalty—an enhanced penalty that
both increases the mandatory minimum from zero to 20 years and increases the
statutory maximum from 20 years to life in prison. Here, too, the fact of nonrelease is
one that must be proved by the state beyond a reasonable doubt. See Apprendi, 530
U.S. at 476 (holding that “any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt” (quoting Jones v. United States, 526 U.S.
227, 243 n.6 (1999))); Alleyne v. United States, 570 U.S. 99, 111–16 (2013) (holding
that any “facts increasing the mandatory minimum” must “be submitted to the jury
and found beyond a reasonable doubt”).
But in Hawes’s case, the State was not held to its constitutionally mandated
burden. No matter how § 6-2-201 is interpreted, the 20-to-life sentencing range in
subsection (d) turns on the elemental factual predicate of nonrelease. But the
Wyoming courts did not require the State to prove this factual predicate before
sentencing Hawes within that range, to 30 years in prison. Accordingly, under any of
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these interpretations, the result is the same: a violation of Hawes’s constitutional
rights. And the state district court’s decision concluding otherwise was contrary to
clearly established federal law. See Winship, 397 U.S. at 364; Mullaney, 421 U.S. at
685, 703; Apprendi, 530 U.S. at 476; Alleyne, 570 U.S. at 115–16.
Conclusion
Because we cannot defer to all of the Wyoming Supreme Court’s conflicting
interpretations and because the statute, as applied to Hawes, was unconstitutional, I
would grant Hawes’s habeas petition. Thus, I respectfully dissent.
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