Charles Edward Birr v. Duane Shillinger & the Attorney Gen. of the State of Wyoming, 894 F.2d 1160 (10th Cir. 1990). · Go Syfert
Charles Edward Birr v. Duane Shillinger & the Attorney Gen. of the State of Wyoming, 894 F.2d 1160 (10th Cir. 1990). Cases Citing This Book View Copy Cite
35 citation events (21 in the last 25 years) across 8 distinct courts.
Strongest positive: Martinez v. Martinez (nmd, 2022-03-17)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
cited Cited as authority (rule) Martinez v. Martinez
D.N.M. · 2022 · confidence medium
See Burleson v. Saffle, 292 F.3d 1253, 1255 (10th Cir. 2002); Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990).
cited Cited as authority (rule) Ramirez v. San Estefan
D.N.M. · 2022 · confidence medium
Burleson v. Saffle, 292 F.3d 1253, 1255 (10th Cir.2002); Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990).
discussed Cited as authority (rule) Armendariz v. Moya
10th Cir. · 2020 · confidence medium
See Wood, 721 F.3d at 1195 (“[A] conclusion about state legislative policy, coming . . . from the state high court, binds us.); Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990) (per curiam) (“In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent.”). 2 We do not consider whether Armendariz exhausted his available state court remedies as a pre-requisite to relief under § 2254 on his double jeopardy claim because the state expressly waived ex…
discussed Cited as authority (rule) Spradling v. Addison
10th Cir. · 2010 · confidence medium
Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983). “ ‘[W]e are bound by a state court’s determination of the legislature’s intent.’ ” Cummings v. Evans, 161 F.3d 610, 615 (10th Cir.1998) (quoting Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990)).
discussed Cited as authority (rule) Petzold v. Jones (2×)
W.D. Okla. · 2008 · confidence medium
And the federal court is “ ‘bound by a state court’s determination of the legislature’s intent.” Burleson v. Saffle, 292 F.3d 1253, 1255 (10th Cir.2002) (quoting Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990) (per curiam)).
discussed Cited as authority (rule) Jones v. Oklahoma
W.D. Okla. · 2008 · confidence medium
“Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination.” Birr v. Shillinger, 894 F.2d 1160, 1161-62 (10th Cir.1990) (per curiam) (citations omitted).
discussed Cited as authority (rule) Jones v. Oklahoma
W.D. Okla. · 2008 · confidence medium
“Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination.” Birr v. Shillinger, 894 F.2d 1160, 1161-62 (10th Cir.1990) (per curiam) (citations omitted).
discussed Cited as authority (rule) Carson v. Ward
10th Cir. · 2006 · confidence medium
Missouri v. Hunter, 459 U.S. 359, 368 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983). “[W]e are bound by a state court’s determination of the legislature’s intent.” Cummings v. Evans, 161 F.3d 610, 615 (10th Cir.1998) (quoting Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990)).
discussed Cited as authority (rule) McCloud, Kevin R. v. Deppisch, Jodine
7th Cir. · 2005 · confidence medium
We are bound to accept the Missouri court’s construction of that State’s statutes.”); Brown v. Ohio, 432 U.S. 161, 167 , 97 S. Ct. 2221, 2226 (1977) (“We are mindful that the Ohio courts ‘have the final authority to interpret . . . that State’s legisla- tion.’ ”) (quoting Garner v. Louisiana, 368 U.S. 157, 169 , 82 S. Ct. 248, 254 (1961)); see Lechner, 341 F.3d at 641-42 ; see also, e.g., Rhode v. Olk-Long, 84 F.3d 284, 289-90 (8th Cir. 1996); Smallwood v. Johnson, 73 F.3d 1343, 1350 (5th Cir. 1996); Birr v. Shillinger, 894 F.2d 1160, 1161-62 (10th Cir. 1990) (per curiam); Bann…
discussed Cited as authority (rule) Kevin R. McCloud v. Jodine Deppisch
7th Cir. · 2005 · confidence medium
We are bound to accept the Missouri court’s construction of that State’s statutes.”); Brown v. Ohio, 432 U.S. 161, 167 , 97 S.Ct. 2221, 2226 , 53 L.Ed.2d 187 (1977) (‘We are mindful that the Ohio courts ‘have the final authority to interpret ... that State’s legislation.’ ”) (quoting Garner v. Louisiana, 368 U.S. 157, 169 , 82 S.Ct. 248, 254 , 7 L.Ed.2d 207 (1961)); see Lechner, 341 F.3d at 641-42 ; see also, e.g., Rhode v. Olk-Long, 84 F.3d 284, 289-90 (8th Cir.1996); Smallwood v. Johnson, 73 F.3d 1343, 1350 (5th Cir.1996); Birr v. Shillinger, 894 F.2d 1160, 1161-62 (10th Cir.…
discussed Cited as authority (rule) Burleson v. Saffle
10th Cir. · 2002 · confidence medium
Moreover, “[i]n assessing whether a state legislature intended to prescribe cumulative punishments for a single, criminal incident, we are bound by a state court’s determination of the legislature’s intent.” Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990); see also Hunter, 459 U.S. at 368 , 103 S.Ct. 673 (“We are bound to accept the [State] court’s construction of that State’s statutes.”).
discussed Cited as authority (rule) B.J. Burleson v. James Saffle, and Drew Edmondson
10th Cir. · 2002 · confidence medium
“In assessing whether a state legislature intended to prescribe cumulative punishments for a single, criminal incident, we are bound by a state court’s determination of the legislature’s intent.” Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990); see also Hunter, 459 U.S. at 368 , 103 S.Ct. 673 (“We are bound to accept the [State] court’s construction of that State’s statutes.”).
discussed Cited as authority (rule) Moncada v. Gibson
10th Cir. · 2001 · confidence medium
“In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent.” Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990) (citation omitted).
discussed Cited as authority (rule) Cummings v. Evans (2×) also: Cited "see"
10th Cir. · 1998 · confidence medium
“In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent.” Birr v. Shillinger , 894 F.2d 1160, 1161 (10th Cir. 1990); see also, e.g , Lucero v. Kerby , 133 F.3d 1299, 1316 (10th Cir. 1998) (asserting that federal court in habeas corpus proceeding should defer to 1 The elements of Assault and Battery with a Deadly Weapon are: 1) an assault and battery; 2) upon another person; 3) with a deadly weapon or by such other means as is likely to produce death.
discussed Cited as authority (rule) David Leon Cummings v. Edward Evans, Warden Attorney General of the State of Oklahoma (2×) also: Cited "see"
10th Cir. · 1998 · confidence medium
“In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent.” Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.1990); see also, e.g, Lucero v. Kerby, 133 F.3d 1299, 1316 (10th Cir.1998) (asserting that federal court in habeas corpus proceeding should defer to state court’s determination of separate of fenses for double jeopardy purposes), cert. denied, — U.S. -, 118 S.Ct. 1684 , 140 L.Ed.2d 821 (1998); Thomas v. Kerby, 44 F.3d 884, 887 (10th Cir.1995…
discussed Cited as authority (rule) Todd v. State
Alaska Ct. App. · 1995 · confidence medium
Birr v. Shillinger, 894 F.2d 1160, 1161-62 (10th Cir.1990) (per curiam), cert. denied, 496 U.S. 940 , 110 S.Ct. 3224 , 110 L.Ed.2d 671 (1990); Banner v. Davis, 886 F.2d 777, 780 (6th Cir.1989); Gillespie v. Ryan, 837 F.2d 628, 630-32 (3rd Cir.1988), cert. denied, 488 U.S. 833 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988); Fallada v. Dugger, 819 F.2d 1564, 1572-73 (11th Cir.1987); Deloach v. Wainwright, 777 F.2d 1524, 1525-26 (11th Cir.1985).
examined Cited as authority (rule) Cook v. State (4×)
Wyo. · 1992 · confidence medium
Birr v. Shillinger, 894 F.2d 1160, 1162 (10th Cir.), cert. denied 496 U.S. 940 , 110 S.Ct. 3224 , 110 L.Ed.2d 671 (1990), illustrates the rule’s preclusive effect when federal courts are asked to review the Wyoming legislature’s intent to authorize multiple punishment.
cited Cited as authority (rule) Danny Boomershine v. Stephen W. Kaiser, Warden Attorney General, State of Oklahoma
10th Cir. · 1992 · confidence medium
Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.), cert. denied, 110 S.Ct. 3224 (1990).
cited Cited "see, e.g." Ayala v. Hatch
D.N.M. · 2012 · signal: see also · confidence medium
See id. at 368 , 103 S.Ct. 673 ; see also Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir.) (citations omitted), ce rt. denied, 496 U.S. 940 , 110 S.Ct. 3224 , 110 L.Ed.2d 671 (1990).
discussed Cited "see, e.g." Palmer v. Haviland
6th Cir. · 2008 · signal: see also · confidence medium
Id; see also Birr v. Shillinger, 894 F.2d 1160, 1162 (10th Cir.1990) (“The [Wyoming Supreme Court] majority’s interpretation of the legislative intent for the imposition of multiple punishments is binding on this court irrespective of the views of [that court’s] dissenters.... [W]e find no violation of the double jeopardy clause.”); Deloach v. Wainmight, 777 F.2d 1524, 1525-26 (11th Cir.1985) (concluding that it was bound by a finding by the Florida Supreme Court that the Florida legislature intended multiple punishments for felony murder and the underlying felony).
Retrieving the full opinion text from the archive…
Charles Edward BIRR, Petitioner-Appellant,
v.
Duane SHILLINGER; And the Attorney General of the State of Wyoming, Respondents-Appellees
88-1798.
Court of Appeals for the Tenth Circuit.
Jan 22, 1990.
894 F.2d 1160
Charles Edward Birr, pro se., Terry L. Armitage, Asst. Atty. Gen., Cheyenne, Wyo., for respondents-appellees.
Baldock, Brorby, Ebel, Per Curiam.
Cited by 27 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 73%
Citer courts: D. Utah (1)
PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Charles Edward Birr has appealed from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a guilty plea, petitioner was convicted by a Wyoming court of accessory to felony murder and accessory to the underlying felony of aggravated robbery. Petitioner was sentenced to life imprisonment for the murder and twenty to twenty-five years for the robbery with the sentences to run consecutively. The convictions and the sentences were affirmed by the Wyoming Supreme Court on direct appeal. Birr v. State, 744 P.2d 1117 (Wyo.1987).

In support of his request for federal habeas relief, petitioner has argued that his sentences for both felony murder and the underlying felony violate the constitutional guarantee against double jeopardy. The double jeopardy clause serves three primary purposes. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after a conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

Petitioner’s argument rests on the third protection. Our review of this claim, however, is limited. In cumulative sentencing situations, such as here, the double jeopardy clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In assessing whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, we are bound by a state court’s determination of the legislature’s intent. See Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984)(“We accept, as we must, the Ohio Supreme Court’s determination that the Ohio legislature did not intend cumulative punishment for the two pairs of crimes involved here.”); Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679 (“In addition, the Missouri Supreme Court has recognized that the legislature intended that punishment for violations of the statutes be cumulative. We are bound to accept the Missouri court’s construction of that State’s statutes.”). Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination. See, e.g., Banner v. Davis, 886 F.2d 777, 780 (6th Cir.1989) (federal court bound by Tennessee Supreme Court decision that the Tennessee legislature intended cumulative punishment for[*1162] aggravated assault and firing into an occupied dwelling); Deloach v. Wainwright, 777 F.2d 1524, 1525-26 (11th Cir.l985)(fed-eral court bound by Florida Supreme Court finding that the Florida legislature intended multiple punishments for felony murder and the underlying felony).

Here, a majority of the Wyoming Supreme Court, in affirming petitioner’s convictions and sentences over the dissent of two justices, held that the Wyoming legislature intended cumulative punishment for accessory to felony murder and accessory to the underlying felony of aggravated robbery. Birr, 744 P.2d at 1120-22. The majority’s interpretation of the legislative intent for the imposition of multiple punishments is binding on this court irrespective of the views of the dissenters. Therefore, since the requisite legislative intent to impose multiple punishments exists, we find no violation of the double jeopardy clause.

Accordingly, the judgment of the United States District Court for the District of Wyoming is AFFIRMED.