McLuckie v. Abbott, 02-1017.

• Decision Date: 30 July 2003
• Docket Number: No. 02-1017.,02-1017.
• Citation: 337 F.3d 1193
• Parties: Lori Lynn McLUCKIE, Petitioner-Appellant, v. James ABBOTT, Warden; Attorney General of the State of Colorado, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

337 F.3d 1193

Lori Lynn McLUCKIE, Petitioner-Appellant, v. James ABBOTT, Warden; Attorney General of the State of Colorado, Respondents-Appellees.

No. 02-1017.

United States Court of Appeals, Tenth Circuit.

July 30, 2003.

Thomas P. Johnson, Davis Graham & Stubbs, Denver, CO for the Petitioner-Appellant.

John J. Krause, Assistant Solicitor General (Ken Salazar, Attorney General with him on the brief), Denver, CO for the Respondents-Appellees.

Before SEYMOUR, LUCERO, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Lori Lynn McLuckie, a Colorado state prisoner convicted of first-degree murder and sentenced to life imprisonment, appeals the district court's denial of her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This court granted McLuckie a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) with respect to her sole claim of legal error: that trial counsel's failure to investigate and present psychological evidence deprived her of effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we are presented with two questions: (1) whether McLuckie's constitutional right to effective assistance of counsel was violated; and (2) whether the judgment of the Colorado Court of Appeals denying post conviction relief under Strickland "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, within the meaning of 28 U.S.C. § 2254(d)(1)." Williams v. Taylor, 529 U.S. 362, 367, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation omitted). Because we answer the second question in the negative, we affirm the denial of habeas relief.

I

The objective facts relating to the conviction are undisputed. On May 27, 1988, Denver Police executed a search warrant at McLuckie's apartment, revealing a grisly scene. Once inside, they found the head and torso of the dismembered body of Andrew Vigil, with whom McLuckie had been romantically involved. McLuckie was asleep in the bedroom. A search of the premises revealed a saw in the kitchen, a bloody sheet in the bathtub, and rubber gloves in McLuckie's bedroom. In trash dumpsters outside the apartment, they found grocery bags containing body parts wrapped in aluminum foil.

Due to the bizarre and macabre nature of the case, the two public defenders who were assigned to represent McLuckie immediately enlisted the aid of a mental-health expert, Dr. Susan Bernhard. After an examination, including the administration of several clinical tests, Dr. Bernhard concluded that McLuckie may have had a "meritorious mental state defense." (1 R. Doc 19, para. 2, 3.) Dr. Bernhard noted that McLuckie was suffering from severe emotional problems, that test data supported an impaired mental condition defense, that she may have had an insanity defense, and that the matter called for further investigation. However, Dr. Bernhard did not conclude that McLuckie met the standards for legal insanity or diminished mental capacity in Colorado.

An expert in Battered Woman Syndrome, Dr. Lenore Walker, was then contacted. After examining McLuckie, Dr. Walker prepared a report in which she concluded that McLuckie suffered from Battered Woman Syndrome as a sub-category of Post-Traumatic Stress Disorder. She found that McLuckie was a former rape victim, that she had been physically and sexually abused in her relationship with Vigil, and that the homicide arose out of McLuckie's "psychological condition from being battered and from being sexually abused." (3 id. at 56.) Dr. Walker noted that McLuckie's "serious mental health problems" presented a "complex case" and "were not diagnosable in the ususal way." (3 id. at 57.) She explained that McLuckie's actions were "consistent with a dissociative state and other inability to perceive reality." (1 id. Doc. 2, Ex. C, para. 5.) Dr. Walker suggested that McLuckie's perception of reality was impaired sufficiently to negate the deliberation required for first-degree murder under C.R.S. § 18-3-102(a). She stated that, in her professional opinion, "McLuckie did have a mental health disorder that was often seen in battered women and other abuse victims who have a psychotic break with reality because of the extreme levels of fear that they will be killed by the abuse." (1 id. Doc. 2, Ex. C, para. 3.) Like Dr. Bernhard, Dr. Walker did not definitively conclude that McLuckie met the legal definition of insanity.

Based on the information from the two psychological experts, the public defenders intended to attempt to negotiate a plea of guilty to second-degree murder. Were the case to proceed to trial, the public defenders intended to call both Walker and Bernhard as expert witnesses. Before their investigation could proceed further, however, McLuckie filed a pro se motion on October 12, 1988, to dismiss her public defenders and appoint new counsel. Her father retained Donald Lozow as her defense attorney. While Lozow had some months to prepare, with the trial scheduled to begin on January 30, 1989, he made few preparations for trial because he anticipated that the State would offer a plea bargain. For example, though he came to believe that his client was insane, Lozow never attempted to reach Dr. Bernhard, despite having her contact information. Lozow testified at a Colorado state post-conviction Rule 35(c) hearing that he never hired an investigator, and did not recall interviewing witnesses other than the landlord, including the next-door neighbor who had heard sounds of an argument.

Although Lozow did meet with Dr. Walker before trial to discuss Battered Woman Syndrome, Dr. Walker later testified that these meetings gave her the impression that Lozow did not understand the defense. Lozow reserved the right to call Dr. Walker as a witness, but told her that he planned to defend McLuckie by putting on a self-defense theory. Dr. Walker told Lozow that she disagreed with Lozow's sequence of events, but that she remained willing to testify as to her psychological findings.

Despite Lozow's assumption that the case would settle, it eventually became clear that the case would go to trial. It was only at this point, shortly before trial was scheduled to commence, that Lozow and McLuckie "started talking about the offense itself," (4 Supp. R. at 11) and Lozow "started to really prepare for trial," (4 id. at 9). After meetings with McLuckie and a discussion with Dr. Walker, Lozow began to have "serious doubts as to the state of [McLuckie's] sanity." (4 id. at 9-12.) Accordingly, Lozow sought leave to enter a plea of not guilty by reason of insanity on behalf of McLuckie on January 26, four days before the beginning of trial, explaining to the court that he had "confirmed [his] doubts with Lenore Walker" and that he had good cause to enter the new plea. (4 id. at 11.) His primary explanation for his failure to enter the plea earlier was that he had anticipated a plea bargain. He stated "maybe I was incompetent not to have brought it up" earlier. (4 id. at 17.) The court rejected the plea as untimely, but ordered, at Lozow's request, that McLuckie be examined once again by Dr. Walker and a different mental-health expert, Dr. Gutterman. Neither Dr. Walker nor Dr. Gutterman was willing to state that McLuckie met the standards for insanity and/or diminished mental capacity in Colorado.

A jury trial began on January 30, 1989. Calling McLuckie to the stand, Lozow proceeded to present self defense as the theory of his case. According to McLuckie, Vigil came to the house uninvited. She thought he had been drinking and she was frightened because she was pregnant with another man's child. Vigil began making threats to both her and her unborn child. McLuckie testified that Vigil raped her, threw one of her cats into the kitchen, and punched the television screen before approaching McLuckie in the kitchen. She testified that she hit him with a hammer, grabbed a knife, and "was just stabbing." (5 id. at 920.) McLuckie further testified that, once he fell to the ground, she put handcuffs on Vigil because he was making noises. McLuckie explained that she did not tell the police because she was afraid they would not believe her, as she had previously been a victim in a rape case in which the defendant was acquitted.

A pathologist testified that there were approximately forty-nine stab wounds to Vigil's head, back, and neck, that a stomach wound was inflicted post-mortem, and that Vigil had bled to death. Lozow had not interviewed the pathologist prior to trial. Two police officers testified that they did not observe any injuries, scratches, or bruises on McLuckie when she was placed under arrest. After deliberation, the jury returned a verdict of first-degree murder and abuse of a corpse. McLuckie was sentenced to life imprisonment on June 9, 1989. The Colorado Court of Appeals affirmed the conviction; one dissenter would have remanded for a trial on the issue of insanity, concluding that the trial court should have accepted the plea of not guilty by reason of insanity that was tendered four days before trial. People v. McLuckie, No. 89CA1195, slip op. at 13-14 (Colo.Ct.App. Dec. 12, 1991).

In September 1994, McLuckie was represented by new counsel in her state post-conviction proceedings brought pursuant to Colorado Rule of Criminal Procedure 35(c). A two-day evidentiary hearing was held before the same judge who had presided at trial. At the hearing, the public defenders who had initially worked on the case testified that a claim of self defense was inappropriate in light of the facts of the homicide and that expert assistance was necessary to help the jury understand a mental-state defense. A criminal-defense expert testified that the case clearly called for a mental-state defense and that a theory of self defense was completely...