Elliott v. Williams

• Decision Date: 04 May 2001
• Docket Number: No. 99-2254,99-2254
• Citation: 248 F.3d 1205
• Parties: (10th Cir. 2001) CHARLES ELLIOTT, Petitioner-Appellant, v. JOE WILLIAMS, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1205

248 F.3d 1205 (10th Cir. 2001)

CHARLES ELLIOTT, Petitioner-Appellant, v. JOE WILLIAMS, Warden, Respondent-Appellee.

No. 99-2254

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

May 4, 2001

Appeal from the United States District Court for the District of New Mexico

(D.C. No. CIV-96-1362-JC)

Benjamin Gonzales, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender with him on the brief), Albuquerque, New Mexico, for Petitioner-Appellant.

Margaret McLean, Assistant Attorney General (Patricia A. Madrid, Attorney General with her on the brief), Santa Fe, New Mexico, for Respondent-Appellee.

Before SEYMOUR and MURPHY, Circuit Judges, and KANE, Senior District Judge.^*

KANE, District Judge.

This habeas appeal and request for certificate of appealability arises out of Petitioner Charles Elliott's New Mexico state court convictions for criminal sexual penetration and kidnaping of his then ex-wife, Toni Elliott. After Elliott's state court convictions were affirmed on direct appeal and the denial of his state application for post-conviction relief affirmed, Elliott filed a petition for writ of habeas corpus in federal district court. The United States District Court for the District of New Mexico referred the matter to a magistrate judge, who issued proposed findings and a recommendation that Elliott's petition be denied. Over Elliott's objection, the district court adopted the magistrate's proposed findings and recommendations as an order of the court and denied Elliott's request for a certificate of appealability. We exercise jurisdiction under 28 U.S.C. 1291 and AFFIRM.

Elliott challenges the constitutionality of his state court convictions on three grounds. First, he contends he was denied effective assistance of counsel at trial when his attorney failed not only to present an opening or closing statement to the jury, but declined entirely to present any defense after the prosecution rested.¹ Because the victim of Elliott's alleged crimes, his ex-wife, recanted her testimony against Elliott at trial, Elliott argues the presentation of a defense would have altered the outcome of the proceedings. Second, Elliott argues he was denied his Fourteenth Amendment right to a fair trial when the trial court improperly admitted into evidence his confession, which he gave while under the influence of heroin. Third, Elliott contends he was denied his Fourteenth Amendment right to due process when the trial court improperly admitted prior bad act evidence. Alternatively, Elliott argues he was entitled to an evidentiary hearing before the district court to develop a factual basis for his ineffective assistance of counsel claims. Elliott denies he had any opportunity to develop a factual basis during his direct appeal, because there is no procedural mechanism under New Mexico law to augment the record on direct appeal.

I. STANDARD OF REVIEW.

Because Elliott filed his habeas Petition in the district court on October 6, 1996, we review it under 28 U.S.C. 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996)(effective April 24, 1996). See Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir.1999). The appropriate standard of review under AEDPA depends on whether a claim was decided on the merits in state court. "If the claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999) (interpreting 2254(d)).

If, as here, a petitioner's claims were adjudicated on their merits by the state courts, he will be entitled to federal habeas relief only if he can establish that 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). Elliott's claims do not challenge the state court's factual determinations under 2254(d)(2), so in accordance with the Supreme Court's elucidation of 2254(d)(1) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1521-23 (2000), we may grant the writ if we find the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the case differently than the Supreme Court has on a set of materially indistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner's case. Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir. 2000)(citing Williams). When reviewing a state court's application of federal law we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly. "Rather, we must be convinced that the application was also objectively unreasonable." Id., n. 4 (quoting Williams, 529 U.S. 362, 120 S.Ct. at 1523). Accord Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000)(quoting Williams and explaining that by "objectively reasonable," we mean that the writ may be granted "only if 'the state court identifies the correct governing legal principle from [the] Court's decision but unreasonably applies that principle to the facts of the prisoner's case'").

II. INEFFECTIVE ASSISTANCE OF COUNSEL.

An accused is entitled to effective representation of counsel. U.S. Const. amend. VI; N.M. Const. art. II, 14. To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that "(i) counsel's performance was objectively deficient and (ii) counsel's deficiency prejudiced the defense, depriving petitioner of a fair trial with a reliable result." Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000)(applying Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). It is our task under AEDPA to discern whether the New Mexico courts applied the Strickland standard unreasonably in Elliott's case.

"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Courts are instructed to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel's conduct was not the result of error or omission but derived instead from trial strategy. Id. "Judicial scrutiny of counsel's performance must be highly deferential." Id. Because the purpose of the Sixth Amendment's right to counsel clause is to ensure that a criminal defendant receive a fair trial, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the ...[proceedings] cannot be relied on as having produced a just result." Id. at 686.

Here, the New Mexico Court of Appeals determined counsel's decisions not to present opening or closing arguments were "questions of trial tactics and strategy" not to be "second-guessed" on appeal, and speculated that trial counsel "may have believed the State's case so weak or incredible that no further argument was needed." Mem. Op., No. 17,026, slip op. at 8 (N.M. App. May 3, 1996) (R. Vol. I, Tab 13, Att. W.) Both conclusions were simply endorsements of the reasonableness presumption asserted as fact, without acknowledgment of Elliott's facts in rebuttal or citation to the record indicating the Court had reviewed counsel's conduct to discern what his "trial strategy" or "beliefs" were, and without any citation to case law involving similar conduct or issues. The only case cited by the Court of Appeals involved neither the waiver of opening or closing statements nor the failure to present a case-in-chief in defense. Rather, the issue in State v. Dean, 727 P.2d 944, 947 (N.M. App.), cert. denied, 726 P.2d 856 (1986) (cited in slip op. at 8), was defense counsel's decision to cross-examine a police officer, which resulted in the prosecution offering rebuttal evidence that undermined the accused's alibi defense. Finding counsel's attempt to undermine the identification the only reasonable tactic available, the New Mexico Court of Appeals rejected defendant's contention that counsel was ineffective. Id. Neither the Court of Appeals in its decision nor the State in its briefs cited any case involving a trial counsel's decision to rest at the conclusion of the prosecution's case in chief, after waiving both opening and closing arguments and failing to present any defense on the accused's behalf, let alone a case in which such conduct was sanctioned as the product of reasonable "trial tactics" or "strategy."² The circumstances were clearly ones of first impression in New Mexico, yet the Court of Appeals undertook no analysis or review of them whatsoever.

The Court of Appeals' conclusions were then adopted, verbatim and without any citation to legal authority or case of any kind, by the federal magistrate judge whose recommendation that habeas relief be denied was adopted as the order of the New Mexico District Court. See Magistrate Judge's Am. Proposed Findings & Recommended Disposition, No. 96cv1362 JC/JHG, at p. 7 (Apr. 2, 1999)(R. Vol I, Tab 42).³ Because the Court of Appeals ended its inquiry at the first prong of the Strickland standard, there was no consideration by either court as to whether any deficiency of counsel prejudiced Elliott's defense.

While it is unclear...