Denton v. Ricketts

• Decision Date: 29 May 1986
• Docket Number: No. 85-1959,85-1959
• Citation: 791 F.2d 824
• Parties: Vincent Albert DENTON, Petitioner-Appellee, v. James G. RICKETTS and the Attorney General of the State of Colorado, Respondents-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 824

791 F.2d 824

Vincent Albert DENTON, Petitioner-Appellee, v. James G. RICKETTS and the Attorney General of the State of Colorado, Respondents-Appellants.

No. 85-1959.

United States Court of Appeals Tenth Circuit.

May 29, 1986.

David R. Little, Asst. Atty. Gen. (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and John Milton Hutchins, First Asst. Atty. Gen., Appellate Section, with him on brief), Denver, Colo., for respondents-appellants.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on brief), Denver, Colo., for petitioner-appellee.

Before LOGAN and BALDOCK, Circuit Judges, and SAFFELS, District Judge. ^*

BALDOCK, Circuit Judge.

The State of Colorado appeals from the district court's grant of a writ of habeas corpus setting aside petitioner Vincent Albert Denton's conviction for second degree burglary, theft and conspiracy to commit second degree burglary and theft. This case was before this court once before, Denton v. Ricketts, 728 F.2d 489 (10th Cir.1984), where we reversed and remanded an earlier district court grant of a writ of habeas corpus. We held that the magistrate's "investigatory" hearing was insufficient to satisfy the requirements of 28 U.S.C. Sec. 2254(d). On remand, an adversarial evidentiary hearing was held and the district court concluded that petitioner was denied effective assistance of counsel and ordered his release from parole. Because we hold that petitioner was not denied effective assistance of counsel, we reverse.

I.

In September, 1977, petitioner was charged with second degree burglary, theft of stereo equipment and speakers valued in excess of $200, and conspiracy to commit burglary and theft. Petitioner was tried before a jury on December 1st and 2nd, 1977, and was represented by appointed counsel, Robert Page. Only two witnesses testified at the trial, both for the prosecution: an agent of the Federal Bureau of Investigation (FBI) and the owner of the stolen goods. Through the testimony of these witnesses it was established that the Denver, Colorado, home of Emmitt Kincy was burglarized on May 12, 1977. Among other things, a typewriter, a stereo receiver, a tape recorder and a pair of speakers were stolen.

On the day of the burglary, undercover FBI agents met with Irma Boyd, who was known at the time as Lola. She informed them that she knew someone interested in selling stereo equipment. One of the agents met her at an apartment and she introduced him to petitioner and co-defendant David Carter. In the room was stereo equipment and a typewriter. The FBI agent testified that he negotiated the sale of the stereo equipment with both petitioner and co-defendant Carter. He also testified that petitioner refused to sell the typewriter. Petitioner, Carter and others met the FBI agent at another location to deliver the speakers. The agent paid $125 to Carter and $15 to Lola.

Petitioner was convicted on all counts. Thereafter, attorney Robert Page was permitted to withdraw, and the state's public defender represented petitioner in subsequent state court proceedings. The public defender moved for a new trial, arguing ineffective assistance of counsel. On January 11th and 18th, 1979, the trial judge conducted an adversarial evidentiary hearing and heard testimony from juror Donna Penn, Irma Boyd, co-defendant David Carter, petitioner, and attorney Robert Page. Irma Boyd testified that she was available to testify but was never contacted by petitioner's attorney. David Carter also testified that he had never been contacted by Robert Page but that he would have testified that petitioner had nothing to do with the burglary, theft or stolen goods. Petitioner testified that he asked his attorney to call Toni Fischer, David Carter and Lola as witnesses and requested that Donna Penn be disqualified as a juror.

Robert Page explained that juror Donna Penn was not challenged even though she was a clerical employee of the Denver Sheriff's Department because he believed her answers during voir dire were better than other jurors. He testified that petitioner agreed with this decision. He also stated that he recognized Lola to be a potentially important witness, made several attempts at identifying and locating her, but was unable to do so. Although he never personally interviewed Toni Fischer, he was aware that she knew the speakers were stolen and concluded her testimony would not be helpful. As to David Carter, Page made several attempts to interview him prior to Carter's guilty plea, but was refused access to him. He later decided not to call Carter as a witness because of six or seven prior felony convictions. Attorney Page confessed that he mistakenly believed that the typewriter was not disclosed during discovery, but at trial he sucessfully alerted the judge that the typewriter was not included in the theft count as an item stolen.

On February 2, 1979, the trial judge heard oral arguments on the motion and rendered his decision on February 14, 1979. He determined that petitioner's counsel had considered the appropriate factors, had made reasonable tactical decisions, and concluded that petitioner's representation was adequate and effective. On appeal, the Colorado Court of Appeals affirmed petitioner's conviction and specifically rejected his renewed claim of ineffective assistance of counsel.

On November 9, 1981, petitioner filed, pro se, a petition for a writ of habeas corpus in the United States District Court for the District of Colorado. The petition was referred to a United States magistrate who interviewed petitioner, his mother, and Robert Page. Based on these interviews and a review of the record, the magistrate concluded that the state district judge erred as to his determination of effective assistance of counsel and recommended the granting of a writ of habeas corpus ordering petitioner's release from the penitentiary unless given a new trial. The United States District Court adopted the magistrate's recommendations on July 28, 1982. On appeal, we reversed and remanded, finding the magistrate's investigatory hearing insufficient to satisfy the requirements of 28 U.S.C. Sec. 2254(d). Denton v. Ricketts, 728 F.2d at 92.

On remand, the magistrate conducted an adversarial evidentiary hearing on July 3, 1984. Petitioner, petitioner's mother and brother, David Carter, and Robert Page testified. The essence of the testimony presented at this hearing does not differ significantly from the information presented at the state court proceeding. The magistrate issued his recommendation on September 21, 1984, concluding that Robert Page had not done enough to identify and locate Lola, that he should have interviewed Toni Fischer and David Carter, and that his mistake concerning the typewriter was a significant error. The magistrate recommended that petitioner be released from parole unless retried. The district court entered its order on June 4, 1985, adopting the magistrate's findings of fact and conclusions of law, concluding that petitioner was denied effective assistance of counsel and ordering that petitioner be released from parole.

II.

The sixth amendment entitles the accused to the assistance of counsel. ¹ E.g., Gideon v. Wainwright, 372 U.S. 335, 340, 83 S.Ct. 792, 794, 9 L.Ed.2d 799 (1963). This constitutional right has been interpreted to mean the right to "effective" assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth guidelines for determining whether a criminal defendant was deprived of effective assistance of counsel. Reversal is required only when a defendant has shown that counsel's performance was deficient and such deficiency prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. This has become known as the "performance and prejudice" test. E.g., Jones v. Smith, 772 F.2d 668, 673 (11th Cir.1985).

To prove deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Court cautioned that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065. Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. "Judicial scrutiny of counsel's performance must be highly deferential." Id. Once attorney error has been established, a 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." Id. at 694, 104 S.Ct. at 2068. See also Nix v. Whiteside, --- U.S. ----, ----, 106 S.Ct. 988, 999, 89 L.Ed.2d 123 (1986).

Although findings of fact made in the course of deciding an ineffectiveness claim are subject to deference, the determination that...