Tenth Circuit Case Summary: Hagos v. Raemisch, 811 F.3d 363 (10th Cir. 2015)

by Tim Tarr, Staff Editor


Appellant Hagos is currently serving two consecutive life sentences in Colorado State prison for two separate prosecutions. Hagos v. Raemisch, 811 F.3d 363 (10th Cir. 2015). Appellant was convicted of first-degree murder in April 2002. Id. at 364. In December of the same year he was separately convicted of first-degree kidnapping. Id. Appellant sought federal habeas review under 28 U.S.C. § 2254 for both the murder case and the kidnapping case. Id. at 4. When the Appellant filed the § 2254 habeas petition in the kidnapping case in September 2013, Appellant’s request for a certificate of appealability (COA) on his § 2254 petition in the murder case was pending before the Tenth Circuit. Id. at 365.

Relying on persuasive authority in a case decided more than 40 years ago, the district court dismissed Appellant’s § 2254 application as non-justiciable for lack of a case or controversy. Id. at 366. The court concluded that granting habeas relief in the Appellant’s kidnapping case would not reduce his sentence or effect his immediate release because the Appellant was serving a life sentence for his murder conviction. Id. Therefore, the habeas petition would not satisfy the United States Constitution’s case or controversy requirement under Article III.

Relying on Peyton v. Rowe, 391 U.S. 54 (1968), and Garlotte v. Fordice, 515 U.S. 39 (1995), Appellant argued he was “in custody” for purposes of habeas review, however, the district court rejected his arguments. Id. Appellant was granted a COA and he appealed that decision to the Tenth Circuit. Id. at 365. The issue presented before the Tenth Circuit is whether Appellant’s § 2254 petition presented a case or controversy for the purposes of Article III. Id. at 367.


The Tenth Circuit agreed with Appellant that Garlotte and Peyton stood for the proposition that “a prisoner’s consecutive sentences compose a ‘continuous stream,’ id., and the prisoner remains in custody for purposes of habeas review until all of the sentences are served.” Id. The Tenth Circuit found that because the Appellant’s § 2254 petition for his murder conviction was still pending, and because Appellant’s kidnapping conviction could affect his eligibility for prison programs, he indeed presented a justiciable case and controversy. Id. at 370.


The Tenth Circuit reversed the district court’s order for two reasons: (1) the appellant was “in custody” for his kidnapping conviction for purposes of habeas review, and (2) an Article III case or controversy existed to permit the district court’s review of his § 2254 petition. Id.


An Uncertain Future for Future Dangerousness: Texas Death Penalty Statute Under Review

Last month, the Supreme Court granted certiorari in Buck v. Stephens [1], a case centering on a highly controversial provision of Texas’s death penalty law – the so-called “future dangerousness” inquiry.  The provision requires capital juries, during the capital sentencing phase, to first consider the likelihood that a particular defendant will commit future crimes of violence prior to consideration of any mitigating information. The seemingly straightforward sentencing inquiry is somewhat anomalous among capital jurisdictions.  In fact, only Texas and Oregon require any inquiry into future dangerousness as part of the capital punishment analysis.  And that may be for good reason.  The future dangerousness standard has been widely criticized for facilitating the introduction of junk science into courtrooms and further reinforcing the racial disparities already endemic to capital punishment.

Indeed, the constitutional error alleged in Buck is the introduction of expert testimony by a psychologist who claimed that the Defendant, as an African American male, was likely to commit future crimes of violence.  “He said flatly that his studies had shown that black people and males were more likely to be a danger to the public.” [2]  The case strikes at the heart of the capital punishment debate.  Is the Texas law, as its proponents claim, a legitimate means of eliminating arbitrariness in death penalty sentencing? Or is it, as many commentators have argued, an open door to racially prejudiced sentencing, masquerading as science?

Bobby Moore (left) and Duane Buck (right), petitioners in consolidated appeal. Source.

In the University of Denver Criminal Law Review’s Fourth Volume, Ana M. Otero takes the latter position.  In her article The Death of Fairness: Texas’s Future Dangerousness Revisited[3]  Otero argues that the Texas law is subject to invalidation based on both constitutional and evidentiary grounds.  She concludes that “future dangerousness is neither reliable, nor constitutional,” and serves to undermine our “most basic of moral and social values.” For now, we can only speculate as to whether that view will find a receptive audience in the Court.  Be sure to check back for more analysis from The Criminal Law Review when the decision comes down.

[1] 136 S. Ct. 2409 (2016)

[2] http://www.scotusblog.com/2016/06/court-reopens-race-and-death-penalty-issues/#more-243496.

[3] Read Professor Otero’s article, and the entire Fourth Volume of University of Denver Criminal Law Review here:  http://www.law.du.edu/documents/criminal-law-review/issues/v04-1/v04-1.pdf.

Symposium Success

Thank all of you who joined the Criminal Law Review for our 2016 symposium on the “State of the Death Penalty. Our panel of guest speakers, moderated by DU Law Professor Nancy Leong, argued about the constitutionality, social utility, and future availability of capital punishment in our legal system. Speakers included criminal defense attorney Jim Castle, Senior Deputy DA Rich Orman, DU Law Professor Ian Farrell, former Chief Deputy DA and radio host Craig Silverman, and candidate for Denver DA Michael Carrigan. The expertise and unique viewpoints of the panelists made for an exciting two-hour debate.

For those of your who are interested, you can watch the full symposium here.

State of the Death Penalty Symposium

Criminal Law Review

4:00 – 6:00 PM
Reception to Follow in the Forum
*Guest Parking will be available in Lot L for $6*

Speakers Include:
Stan Garnett, Elected District Attorney, 20th Judicial District
Jim Castle, Colorado Criminal Defense Attorney
Rich Orman, Senior Deputy District Attorney, 18th Judicial District
Professor Ian Farrell, University of Denver Sturm College of Law
Professor Nancy Leong, University of Denver Sturm College of Law

The death penalty, its use and misuse, and its place in our society are undoubtedly among the most controversial topics faced by our political and justice systems. Especially in Colorado, the pressure of victims’ families and communities to seek or support the death penalty has clashed against a relatively recent surge of arguments to the contrary. As a state central to the nation-wide debate regarding the death penalty, Colorado needs a platform conducive to intelligible dialogue on the contemporary state of capital punishment.

The inaugural symposium of the University of Denver, Criminal Law Review, “The State of the Death Penalty,” to be hosted at the University of Denver, Sturm College of Law, on April 2, 2016, will feature speakers with differing backgrounds from a variety of areas of the law intersecting with the death penalty, including Colorado prosecutors and defense attorneys. The symposium will be structured as a moderated debate that highlights the modern controversies surrounding capital punishment, including those issues presently before the Supreme Court. Specifically, the panelists will address the legal, social, and constitutional arguments for and against the continued availability and usefulness of the death penalty, both in Colorado and across the nation.

2015 Fall Candidacy Opens October 2.

The Criminal Law Review Fall 2015 candidacy period will take place October 2-19, 2015. Materials will be available on TWEN beginning October 2.
There are 4 components to the candidacy packet:

1. Source/cite check
2. Case Comment
3. Resume/Cover Letter
4. 30-minute Interview

Please insure that components 1-3 are completed by October 19 at 11:59pm. Late submissions will not be considered for the staff editor positions absent extenuating circumstances. Interviews will be scheduled following the October 19.

Please contact Samit Bhalala with questions at sbhalala16@law.du.edu.

We look forward to welcoming a group of new staff editors to the CLR!!

Whitfiled v. United States (SCOTUS)

Before we take a short break for the finals season, CLR’s exceptional staff editor, Courtney Mohan has prepared this blog entry discussing a recently decided U.S. Supreme Court case.


Shortly after botching a bank robbery, Larry Whitfield fled police. While on the run, he was able to find an unlocked home nearby and enter the home. That home belonged to 79-year-old Mary Parnell. Mr. Whitfield encountered Ms. Parnell while in the home and forced her to follow him from the hallway to another room within the house. Once inside the room, Ms. Parnell suffered a heart attack and passed away. Whitfield then fled the house and was later apprehended by police. Whitfield v. United States, 135 S. Ct. 785, 787 (2015).

After a grand jury hearing, Mr. Whitfield was indicted for many charges including violating 18 U.S.C. §2113(e) which states “[w]hoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense… forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.” Id. at 787. A jury later found Mr. Whitfield guilty of the offense. Id. at 788.

Mr. Whitfield appealed his conviction, stating that he did not violate §2113(e) because his movement with Ms. Parnell was not “substantial.” The Court of Appeals disagreed with Mr. Whitfield’s argument and stated that the short distance from the hall to the room during the very brief period of time was enough to satisfy a conviction. Id.

Mr. Whitfield then appealed to the Supreme Court of the United States. Id.


In 1934, Congress enacted §2113(e) as a response to the “bank robberies committed by John Dillinger and others.” Carter v. United States, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting). The phrase “forces any person to accompany him without the consent of such person” from the statute has remained unchanged since 1934. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 783 (2000).

The Court looked to the meaning of the word “accompany” in 1934 when interpreting the statute. Whitfield, 135 S. Ct. at 788. The Court determined that the word simply means “to go along with” someone and does not require the “substantial” movement that Mr. Whitfield argued for. Id. The Court stated that there must be some sort of movement “from one place to another” to satisfy the statute. Id. Thus, the movement from the hall to the nearby room was sufficient. Id.

Mr. Whitfield also attempted to argue that because the statute carried harsh penalties, the movement must be “substantial.” Id. at 789. The Court rejected this argument and stated that the distance of the movement does not make the accompaniment more or less dangerous. The Court offered examples to prove this point including having a victim go to a window and be subjected to police fire. Id. Because Congress did not allow for a distance limitation in the statute, the Court refused to adopt one. Id.

Mr. Whitfield then attempted to convince the Court to adopt a narrow reading of the statute to require a forced accompaniment over a substantial distance because anyone involved in the bank robbery who moved could cause Mr. Whitfield to be convicted under §2113(e). Id. at 789. The Court disagreed and stated that the word “accompany” requires that the victim go somewhere with the robber and does not include victims who move without force. Id.


The Court concluded that Mr. Whitfield violated §2113(e) because he forced Ms. Parnell to accompany him from the hall to a room. Therefore, his conviction was affirmed.

Do we think section 2113 was intended to punish defendants in Mr. Whitfield’s position with life imprisonment or death?  Is it appropriate to treat this “forced accompaniment” that results in death similarly to felony-murder that exists in many jurisdictions?

Please let us know your thoughts, we love hearing from our audience.