## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 6 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL E. WELCH,

Petitioner-Appellant,

v. CITY OF PRATT, KANSAS; ROBERT J. SCHMISSEUR, District Judge, Pratt County, Kansas; RAY MCGUIRE, Sheriff of Pratt County, Kansas; ATTORNEY GENERAL OF KANSAS,

Respondents-Appellees. No. 99-3273

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 99-CV-3047)

Submitted on the briefs: Michael S. Holland of Holland and Holland, Russell, Kansas, for Petitioner-Appellant. Jared S. Maag, Assistant Attorney General, Topeka, Kansas, for Respondents-Appellees.

Before TACHA , EBEL , and BRISCOE , Circuit Judges.

EBEL , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- Petitioner Michael E. Welch was convicted in a Kans as state court of driving under the influence of alcohol. Following affirmance of his conviction on direct appeal, petitioner filed this action in the district court seeking a writ of habeas corpus under 28 U.S.C. § 2254. The districtcourt denied the petition and denied his request for a certificate of appealabili ty under 28 U.S.C. § 2253(c). Petitioner appeals and asks this court for a certif icate of appealability on two issues focusing on his jury instructions: the instructions given did not adequately protect his constitutional right not to testify; an d the instructions contained an impermissible presumption and the evidence was othe rwise insufficient to support his conviction. We conclude that petitioner has ma de substantial showings of the denial of constitutional rights, and we grant him acertificate of appealability on both issues. See id. Nonetheless, we agree with the district court that he is not entitled to habeas relief, albeit through somewhat different analyses than those used by the district court. We therefore affirm. 1 The facts are not disputed. At 9:10 p.m. on March 8, 1996, a City of Pratt police officer stopped petitioner for driving in ex cess of the posted speed limit.-3-

After observing several indications that petitionerwas intoxicated, the officer arrested petitioner and took him to the Pratt Law E nforcement Center, where petitioner agreed to take a breath test. The test was administered at 10:08 p.m. and showed petitioner’s blood alcohol content to be .147, which was above the legal limit of .08. A jury convicted petitioner of driving under the influence of alcohol in violation of City of Pratt Municipal Ord inance 30(a)(2), and petitioner was sentenced, inter alia, to six months in the cou nty jail, a fine of $1,000, and a year on probation after serving ten consecutive d ays in the county jail (apparently with the remaining six months suspended ). The Kansas Court of Appeals affirmed on direct appeal, and the Kansas S upreme Court denied review. Petitioner then brought this habeas action alleging that his conviction was unconstitutional for two reasons, both of which he re-urges on appeal.

I Petitioner first contends that the jury instruction pertaining to his Fifth Amendment right not to testify at trial was constit utionally inadequate. The trial court gave the following instruction, taken from Ka nsas pattern instruction No. 52.13: “You should not consider the fact that the defendant did not testify in arriving at your verdict.” Appellant’s App. at H-1 50. Petitioner had requested that the following instruction be given instead:-4- It is the constitutional right of a defendant in a criminal trial that he may not be compelled to testify. The decis ion as to whether he should testify is left to the defendant acting o n the advice and assistance of his attorney. You must not draw any inference of guilt from the fact he did not testify, and this fact mus t not be discussed by you or enter into your deliberations in any way. In deciding whether or not to testify, a defendant may choose t o rely on the state of the evidence or upon the failure, if any, of the prosecution to prove every essential element of the charge against him. . . . Carter v. Kentucky , 450 U.S. 288, 303-304 . . . (1981); United States v. [de ]Hernandez , 745 F.2d 1305, 1309 (10th Cir. 1984). Appellant’s App. at G-149. Petitioner contends that the instruction given does not meet the requirement, established by Carter , that the jury be instructed that a defendant’s silence cannot be used as an inferenc e of guilt, nor the requirement, established by de Hernandez , that the jury be told that a defendant cannot be compelled to testify. We address the “no adverse i nference” and “compulsion” aspects of his proposed instruction in turn. The Fifth Amendment to the United States Constituti on states that no person “shall be compelled in any criminal case to be a witness against himself.” This prohibition on compulsory self-incrimination l ed the Supreme Court to hold that the Constitution “forbids either comment by th e prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California , 380 U.S. 609, 615 (1965). In Carter , the Court noted that “[e]ven without adverse comment, the members of a jury, unl ess instructed otherwise, may well draw adverse inferences from a defendant’s silence.” 450 U.S. at 301.-5-

The Court therefore held that to further protect th e Fifth Amendment privilege against compulsory self-incrimination, “a state tri al judge has the constitutional obligation, upon proper request, to minimize the da nger that the jury will give evidentiary weight to a defendant’s failure to testify.” Id. at 305. The Court stated that this obligation “requires that a crimin al trial judge must give a ‘no-adverse-inference’ jury instruction when requ ested by a defendant to do so.” Id. at 300. The instruction need not, however, be in any particular form nor in the form requested by the defendant. See United States v. Gomez-Olivas , 897 F.2d 500, 502 (10th Cir. 1990); cf. James v. Kentucky , 466 U.S. 341, 350 (1984) (“The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the [adverse] inference if the defendan t so requests; but it does not afford the defendant the right to dictate, inconsis tent with state practice, how the jury is to be told.”). The instruction the trial court gave here told the jury “not [to] consider the fact that the defendant did not testify in arriving at your verdict.” Though the instruction did not expressly tell the jury not to draw any adverse inferences, we agree with the district court that it sufficiently covered the substance of the Carter obligation in this regard. See United States v. Castaneda , 94 F.3d 592, 596 (9th Cir. 1996) (rejecting Carter challenge where jury instructed that “it is the government’s burden to prove a defendant’s guilt be yond a reasonable doubt and-6-

that [t]he defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence”) (quotation omitted); United States v. Ladd , 877 F.2d 1083, 1089 (1st Cir. 1989) (approving over Carter challenge instruction stating “the fact that the defendant do es not [testify, explain, or present evidence] cannot even be considered by you in arriving at your verdict”); United
States v. Russo , 796 F.2d 1443, 1454-55 (11th Cir. 1986) (approvin g instruction telling jury that “if a Defendant elects not to tes tify, you should not consider that in any way during your deliberations” as “broader a nd more beneficial to the [defendants] than their requested instruction” cont aining no-adverse-inference language). By instructing the jury not to considerpetitioner’s failure to testify in its deliberations, the jury was told not to draw any inferences, adverse or otherwise, or in any way to use his right to remain silent against him. We conclude that the instruction given at petitioner’s trial satisfied the trial court’s obligation under Carter to protect his constitutional right not to testify

. Turning to the compulsion aspect of petitioner’s pr oposed instruction, we held in de Hernandez that the jury must be instructed, when the defenda nt so requests, that the defendant cannot be compelled to testify. See 745 F.2d at 1309. Petitioner asserts that the failure of the trial co urt’s instruction to include the not-compelled-to-testify language required by de Hernandez violated his Fifth2 Our decision in de Hernandez was from a direct criminal appeal, and it is

not entirely clear whether we determined that the F ifth Amendment required this instruction, or whether this court required it as a n exercise of our supervisory power over the federal criminal process. For prese nt purposes, we will assume we held that the instruction was constitutionally m andated, as petitioner maintains.

3 We note that petitioner failed to comply with this court’s rules requiring that he indicate in his brief the record reference showing where he raised each issue on appeal, see 10th Cir. R. 28.2(C)(2), and that he provide a cop y of his petition, see 10th Cir. R. 10.3(C)(1), 30.1(A)(1). However, bec ause the district court noted that he raised this issue, although it did not expressly address it, we will consider the issue on appeal. -7- Amendment right and entitles him to habeas relief. 2 Although the district court did not expressly address this argument in its order de nying the petition, we find it unpersuasive. 3 Petitioner filed his petition on February 8, 1999, and it is therefore subject to the provisions of the Antiterrorism and Effectiv e Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy , 521 U.S. 320, 327 (1997). AEDPA amended the federal habeas corpus statute under which petit ioner seeks relief, 28 U.S.C. § 2254, to provide that: (d) An application for a writ of habeas corpus on b ehalf of a person in custody pursuant to the judgment of a State court s hall not be granted with respect to any claim that was adjudicated on t he merits in State court proceedings unless the adjudication of the cl aim-- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supre me Court of the United States . . . .-8-

28 U.S.C. § 2254(d)(1); see Williams v. Taylor , 120 S. Ct. 1495, 1504 (2000). “[A]s the statutory language makes clear, . . . § 2 254(d)(1) restricts the source of clearly established law to [the Supreme] Court’s jurisprudence.” Williams , 120 S. Ct. at 1523; see also Sweeney v. Parke , 113 F.3d 716, 718 (7th Cir. 1997) (noting that under AEDPA, “we are no longer permitt ed to apply our own jurisprudence, but must look exclusively to Supreme Court caselaw in reviewing a petitioner’s claim”); accord O’Brien v. DuBois , 145 F.3d 16, 20 (1st Cir. 1998); Moore v. Calderon , 108 F.3d 261, 264 (9th Cir. 1997). Further, clea rly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” Williams , 120 S. Ct. at 1523. In holding that courts must give the not-compelled- to-testify instruction in de Hernandez , we relied heavily on the Court’s opinion in Carter , and noted that the defendant’s requested instruction in Carter had included such language.
See de Hernandez , 745 F.2d at 1309. However, we explained that Carter itself did not mandate that such an instruction including this language be given: We do not take the holding in Carter that the instruction requested should have been given to include necessarily the “ not compelled to testify” element. . . . We however are of the view , as indicated, that for an instruction on this point to be complete it should include the compulsion aspect. Id. Our decision in de Hernandez thus represents the Tenth Circuit’s jurisprudence regarding instructions necessary to p rotect a defendant’s Fifth-9-

Amendment rights, but it does not reflect the Supre me Court’s jurisprudence. The Supreme Court has never held that the compulsion el ement must be included in an instruction when requested. (Indeed, we are unawar e of any decisions from our sister circuits expressly accepting, or rejecting, the position we took in de Hernandez .) Thus, while the trial court’s failure to give p etitioner’s requested not-compelled-to-testify instruction may have violated Tenth Circuit law, it did not violate clearly established federal law as determin ed by the Supreme Court. Petitioner is therefore not entitled to habeas reli ef on this issue.

II Petitioner also contends that the evidence was insu fficient to support his conviction under Pratt Municipal Ordinance § 30(a)( 2) due to the improper use of a mandatory presumption. He points out, correctly, that there was no direct evidence, such as expert testimony, relating the re sults of his breath test back to the time he was driving to show that he was into xicated while driving. He contends that his conviction resulted from a jury i nstruction creating an impermissible mandatory presumption that he was dri ving while intoxicated because he was intoxicated when the test was taken. He argues this mandatory presumption relieved the prosecution of its burden of proving all the elements of the offense beyond a reasonable doubt, and thus vio lated his right to due process.4 The copy of the ordinance contained in the appendixactually lists the

critical alcohol concentration as .10, rather than .08, but the parties, the jury instructions, and the district court consistently r efer to the critical concentration level as .08. -10- See Francis v. Franklin , 471 U.S. 307, 313 (1985); Sandstrom v. Montana , 442 U.S. 510, 521-24 (1979). The city ordinance in question, which tracks Kan. S tat. Ann. § 8-1567(a)(2), provides that “[n]o person shall operate or attemptto operate any vehicle within this city while . . . [t]he alcohol concentration i n the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is [.08] or more . . . .” Appellant’s App. at K-164. 4 The corresponding jury instruction stated that the prosecution had to prove “[t]hat the defendant, while driving, had an alcohol concentration in his breath of .08 or more as measured within two hours of the time of operating the vehicle.” Id. at I-155. On direct appeal, the Kansas Court of Appeals addre ssed petitioner’s argument as follows:

Welch maintains that there was insufficient evidenc e to establish the alcohol concentration of his blood orbreath while he was driving. At trial, the City presented evidence that Welch had consented to take a breath alcohol test, that the t est was given within 1 hour of him driving the vehicle, and that the res ults showed that he had a breath alcohol concentration of .147. The of ficer who administered the breath test also testified as to w hat breath alcohol concentration was and that it related to the alcoho l concentration in a person’s bloodstream. Upon questioning by Welch’ s attorney, the officer said that he did not know with absolute certainty the alcohol5 We cannot tell from the Kansas Court of Appeals’ de cision, or from the

district court’s decision for that matter, whether petitioner explicitly argued in those courts that the ordinance and instruction cre ated an impermissible presumption. However, it is clear from the record petitioner raised this issue at trial, both in moving for a judgment of acquittal a nd in objecting to the jury instructions. Respondents have not argued that pet itioner failed to exhaust, procedurally defaulted, or waived this issue, and w e therefore consider it likely that he included it as part of his sufficiency-of-t he-evidence arguments in those courts, as he has on appeal. We therefore will con sider it. -11- concentration in Welch’s blood while he was operati ng the vehicle because he had not been there at the time, and thatthere might have been some change in the alcohol concentration betwe en the time Welch was driving and the time the test was taken.

. . . “It is common knowledge that a machine or process m ust be used to test blood or breath to determine whethe r a person’s alcohol concentration exceeds the statutory limit.” State v. Larson , 12 Kan. App. 2d 198, 202, 737 P.2d 880 (1987). The statutory limit in this case was .08. The natural effect of the lapse of time between the operation of the vehicle and the test can be re adily understood and considered by jurors. The jurors could reasonably use the .147 test results, the other available evidence, and their co mmon sense and experience to draw sufficient inferences to find We lch guilty of driving under the influence of alcohol. City of Pratt v. Welch , No. 78,039, slip op. at 8-9 (Kan. Ct. App. Nov. 6 , 1998) (unpublished). 5 Petitioner’s argument on appeal appears to challeng e both the constitutionality of the ordinance itself and the j ury instruction on the basis of the allegedly impermissible presumption. See Appellant’s Br. at 12 (“[I]t is not constitutionally permissible for the legislature to mandate or this court to allow-12-

a jury to presume that his breath alcohol concentration at 10:08 p.m. was his BAC while he operated (9:10 p.m.) the vehicle.”). To t he extent he argues that the ordinance is unconstitutional, we read the Kansas C ourt of Appeals’ decision as interpreting both the ordinance and the instruction to allow, but not require, the jury to draw the inference from the test results th at petitioner was intoxicated while driving. This interpretation avoids petition er’s constitutional challenge to the ordinance itself, since he does not argue that any permissive presumption is also improper. See Mullaney v. Wilbur , 421 U.S. 684, 691 (1975); Lustgarden v.
Gunter , 966 F.2d 552, 553 (10th Cir. 1992); cf. New York v. Ferber , 458 U.S. 747, 769 n.24 (1982) (state court’s interpretation of st ate statute to avoid constitutional problem binding on federal courts). We therefore a ddress only his challenge to the jury instruction. Cf. Sandstrom , 442 U.S. at 516-17 (noting that a state supreme court is “the final authority on the legal weight t o be given a presumption under [state] law, but it is not the final authority on t he interpretation which a jury could have given the instruction”). As we indicated, we read the Kansas Court of Appeal s’ decision as construing the instruction to allow a permissive in ference or presumption. Petitioner contends that the instruction created a mandatory conclusive presumption.

Inferences and presumptions are a staple of our adv ersary system of factfinding. It is often necessary for t he trier of fact to-13-

determine the existence of an element of the crime–that is, an “ultimate” or “elemental” fact–from the existence o f one or more “evidentiary” or “basic” facts. . . . [I]n crimina l cases, the ultimate test of any [presumption’s] constitutional validityin a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. County Court of Ulster County v. Allen , 442 U.S. 140, 156 (1979) (citations omitted). A “permissive presumption” allows, but does not req uire, the factfinder to determine the existence of an element of an offense from proof of one or more basic or evidentiary facts. See id. at 157. In contrast, a mandatory presumption “tells the trier [of fact] that he or they must fin d the elemental fact upon proof of the basic fact, at least unless the defendant has c ome forward with some evidence to rebut the presumed connection between the two facts.” Id. “Because [a] permissive presumption leaves the trier of fact fre e to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the fac ts of the case, there is no rational way the trier could make the connection permitted by the inference,” id. , an issue petitioner does not raise. Instead, petit ioner contends that the instruction here created a mandatory conclusive presumption bec ause it required the jury to find that he was intoxicated while driving based on the test results, and therefore did not merely shift the burden of production, but relieved the prosecution of its-14-

burden of persuasion on this element of the offense. See Francis , 471 U.S. at 314 (“[Mandatory] presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense.”); cf. Ulster County
Court , 442 U.S. at 157 n.16 (explaining difference in ef fect between mandatory presumptions that merely shift the burden of produc tion to defendant and those that entirely shift the burden of proof to defendan t). Whether the instruction created a permissible “perm issive” presumption, as respondents argue and the Kansas court effective ly found, or an impermissible mandatory presumption, as petitioner contends, depe nds on how the jury understood the instruction. See Sandstrom , 442 U.S. at 514. The question thus becomes “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v.
McGuire , 502 U.S. 62, 72 (1991) (quoting Boyde v. California , 494 U.S. 370, 380 (1990)); see also Esquibel v. Rice , 13 F.3d 1430, 1434 (10th Cir. 1994). We conclude there is not. The instruction clearly told the jury that the prosecution had to prove that defendant, “ while driving ,” had an alcohol concentration in his breath above the prescribed li mit. The instruction further provided that the jury could consider test results indicating his alcohol concentration was above the limit, as long as the t est was taken within two hours of the time of driving. The testing provision is alegislative determination-15-

regarding the competency of evidence, see State v. Pendleton , 849 P.2d 143, 148 (Kan. Ct. App. 1993), but we do not believe it can be reasonably understood to require to jury to convict without considering whet her petitioner was intoxicated while driving. Unlike the situation in McLean v. Moran , 963 F.2d 1306, 1308 (9th Cir. 1992), on which petitioner relies, the ju ry was not instructed to presume one fact from another, nor even told that it could do so. Rather, the instruction allowed the jury to infer from the test taken withi n two hours of when petitioner was driving what his blood alcohol level was while he was driving. The instruction thus created a permissive presumption and did not violate petitioner’s due process rights. Viewing the evidence in the li ght most favorable to the prosecution, see Foster v. Ward , 182 F.3d 1177, 1194 (10th Cir. 1999), we conclude that the evidence was sufficient to support petitioner’s conviction. Petitioner’s request for a certificate of appealabi lity is GRANTED. The judgment of the district court is AFFIRMED.