742 F.2d 1070 (7th Cir. 1984), 83-2351, United States v. Curtis

Docket Nº:83-2351.
Citation:742 F.2d 1070
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Earl CURTIS, Defendant-Appellant.
Case Date:August 28, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1070

742 F.2d 1070 (7th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Earl CURTIS, Defendant-Appellant.

No. 83-2351.

United States Court of Appeals, Seventh Circuit

August 28, 1984

Submitted June 7, 1984.[*]

As Amended Sept. 18, 1984.

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[Copyrighted Material Omitted]

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Robert C. Babione, Babione, Edwards & Putzel, St. Louis, Mo., for defendant-appellant.

David E. Risley, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.

Before WOOD, CUDAHY and COFFEY, Circuit Judges.

PER CURIAM.

Defendant-appellant Curtis appeals from a final judgment of the district court denying his motion to vacate his conviction of bank robbery. 28 U.S.C. Sec. 2255. The motion, filed on March 4, 1980, originally was summarily dismissed. Curtis appealed. This court, in an unpublished order dated March 1, 1982, reversed and remanded the case for an evidentiary hearing on Curtis ineffective assistance of counsel claim. On the basis of the evidence adduced at that hearing, the district court concluded that trial counsel's representation was competent and effective.

I

Curtis was convicted of bank robbery largely on the testimony of Harris, co-defendant turned government star witness. Harris placed both Curtis and his car at the "switch site," where an exchange of cars was to take place following the robbery.

In his section 2255 motion, Curtis alleged that the following acts and omissions by counsel constituted ineffective assistance: (1) counsel failed to investigate Curtis' alibi defense; (2) counsel failed to present witnesses or evidence at trial to impeach Harris' testimony; and (3) counsel refused to permit Curtis to testify despite Curtis' clearly expressed desire to do so.

Both Curtis and his trial counsel, Isaiah Gant, testified at the evidentiary hearing. Gant's testimony may be summarized as follows. In initial interviews with Curtis at the jail, Curtis had denied involvement in the bank robbery, had provided Gant with a list of alibi witnesses, and had informed Gant of a repair receipt which would establish that his car was in a repair shop in Chicago at the time of the robbery in St. Anne. Subsequently, Curtis' two other co-defendants, who were released on bond, sought out Gant and informed him that Curtis and his car were involved in the robbery. When Gant confronted Curtis with this information, Curtis admitted to Gant that he had participated in the robbery. Despite that admission, Curtis insisted that Gant should seek to introduce the repair receipt into evidence at trial, stating that the shop mechanic would testify on his behalf. Gant's determination not to attempt to introduce the repair receipt, which he believed to be bogus based on his conversations with Curtis' co-defendants, was strengthened when he saw the mechanic at the courthouse prior to trial, and learned that he had been speaking with the prosecutor and had been subpoenaed by the government as a witness. When Gant asked the mechanic whether he would testify on behalf of Curtis, the mechanic responded that he did not want to get involved. Gant then informed Curtis that any attempt to introduce the repair receipt would be a crucial mistake.

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Gant stated that the alibi witnesses suggested by Curtis were not called because Gant knew their testimony would be false. 1 Gant further testified that he determined not to call certain witnesses who were prepared to testify that Curtis and Harris had had a falling out because their lack of credibility outweighed any impeachment value their testimony might have.

Finally, Gant testified that his decision not to call Curtis as a witness was based upon his assessment that the best way to defend Curtis was to challenge the credibility of the government's witnesses and point out inconsistencies in the government's case; his belief that Curtis would perjure himself; and his determination that Curtis' two prior convictions of armed robbery, which would have been revealed to the jury on cross-examination, would have irreparably damaged the defense.

The most relevant portion of Curtis' testimony at the hearing was his assertion that he had not admitted his participation in the robbery to Gant. The district judge specifically stated that he believed Gant, not Curtis, on this point.

On the basis of the testimony, the district court concluded that Curtis had informed Gant of the witnesses who, and evidence which, allegedly would establish Curtis' alibi; that Gant investigated the asserted defense; and that Gant properly determined not to present the testimony of the witnesses or the documentary evidence because he believed the former would be perjured and the latter to be fabricated. The court further concluded that Gant's refusal to permit Curtis to testify was justified under the circumstances.

II

The Supreme Court recently held that the proper standard for judging an attorney's performance under the sixth amendment is that of "reasonably effective assistance." Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A convicted defendant must show that counsel's performance fell below an "objective standard of reasonableness." Id., 104 S.Ct. at 2065. Specifically, the defendant must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id., 104 S.Ct. at 2066. The reviewing court then must assess whether, in light of all circumstances, these acts or omissions fell outside the wide range of professionally competent assistance. The second prong of an ineffective assistance of counsel analysis requires an assessment of prejudice resulting from the specified deficiencies in counsel's performance.

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id., 104 S.Ct. at 2068. In other words, "the question is whether there is a reasonable probability that, absent the errors, the factfinder

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would have had a reasonable doubt respecting guilt." Id., 104 S.Ct. at 2069.

III

Curtis' claim that counsel's decision not to pursue an alibi defense is evidence of ineffective assistance has been abandoned on appeal, assertedly because Curtis now recognizes the decision as a virtually unassailable strategic choice based upon counsel's assessments that the alibi witnesses lacked credibility and that the best defense was to attack Harris' credibility. In evaluating his ineffective assistance of counsel claim, Curtis would have this court focus solely upon counsel's failure to attempt to impeach Harris with the repair receipt and testimony that Curtis and Harris had had a falling out, and counsel's refusal to permit him to testify.

We note parenthetically that Curtis mischaracterizes counsel's decision not to pursue an alibi defense as a strategic choice. It was not. The district court found that the decision was based upon counsel's conclusion that the witnesses would offer perjured testimony. The court noted that counsel arrived at this conclusion after Curtis' co-defendants informed him that Curtis and his car were at the "switch site," and after Curtis admitted his participation in the bank robbery. The district court made a factual finding, based upon a credibility determination, that Curtis had admitted his involvement to Gant, and concluded that in accordance with his ethical obligation to refrain from knowingly using perjured testimony or false evidence, counsel refused to present the alibi witnesses or the repair receipt.

Curtis argues that Gant's conclusion that he, Curtis, was guilty led him to abdicate his duty to investigate the case and vigorously advocate his cause; although Gant determined that the only way to defend Curtis was to attack Harris' credibility, he failed to present evidence or the testimony of witnesses that might have cast doubt on the truth of Harris' testimony.

Curtis focuses first upon the repair receipt, which he argues could have been used to impeach Harris without confronting the perjury issue. He contends that Gant overlooked the distinction between the presence of Curtis at the "switch site" and the presence of his car there. Although Curtis had admitted his participation in the robbery, he had not admitted that his car was...

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