8 F.3d 1132 (7th Cir. 1993), 89-1896, Cuppett v. Duckworth

Docket Nº:89-1896.
Citation:8 F.3d 1132
Party Name:Robert R. CUPPETT, Petitioner-Appellant, v. Jack R. DUCKWORTH, [*] Superintendent, Indiana State Reformatory, Respondent-Appellee.
Case Date:October 08, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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8 F.3d 1132 (7th Cir. 1993)

Robert R. CUPPETT, Petitioner-Appellant,

v.

Jack R. DUCKWORTH, [*] Superintendent, Indiana

State Reformatory, Respondent-Appellee.

No. 89-1896.

United States Court of Appeals, Seventh Circuit

October 8, 1993

Argued June 16, 1992.

Reargued En Banc June 2, 1993.

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Barry Levenstam (argued), Jerold S. Solovy, Allen C. Schlinsog, Jenner & Block, Chicago, IL, for petitioner-appellant.

Michael A. Schoening, Deputy Atty. Gen., Charles R. Oehrle, Wayne E. Uhl, Deputy Atty. Gen. (argued), Federal Litigation, Indianapolis, IN, for respondent-appellee.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Robert Russell Cuppett filed a petition for a writ of habeas corpus in the district court challenging as unconstitutional the enhancement of his Indiana sentence for a robbery conviction. 28 U.S.C. § 2254. The enhancement, which increased Cuppett's sentence from ten to forty years, was based on a finding that he was a habitual offender under Indiana law. The district court denied Cuppett's habeas petition. We affirm.

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I.

Cuppett has committed felony offenses in three different states. On September 10, 1962, he and two others were indicted in a West Virginia state court for breaking and entering into and stealing money from a laundromat. Three days later, Cuppett pled guilty to "breaking and entering as charged in the ... indictment." Less than one month later, he received a sentence of one-to-ten years imprisonment for this offense. The court record reflects that at the guilty-plea hearing Cuppett and his codefendant "being in custody, were brought out of jail by the Sheriff and placed before the Bar of the Court, and were without counsel, did not desire counsel appointed by this Court to represent them." (emphasis added). In November, 1972, Cuppett was found guilty in Illinois state court of aggravated battery and robbery. On June 10, 1981, Cuppett was convicted of robbery once again, this time in Indiana, after entering a tavern, drawing a sawed-off shotgun, cocking it, holding it to the head of the tavern's owner-manager, and ordering him to turn over his cash. The Indiana state court sentenced Cuppett to ten years imprisonment on the robbery charge. Since Cuppett had two prior felony convictions (in West Virginia and in Illinois), he was also found to be a habitual offender under Indiana Code § 35-50-2-8 and received an enhancement of his sentence of an additional thirty years imprisonment consecutive to his ten-year robbery sentence. Cuppett's conviction was affirmed on direct appeal by the Indiana Supreme Court. Cuppett v. State, 448 N.E.2d 298, 299 (Ind.1983).

On March 19, 1984, almost twenty-two years after his West Virginia conviction, Cuppett petitioned the Circuit Court of Monongalia County, West Virginia to vacate his 1962 conviction on the grounds that, when he pled guilty, he had not been advised of his right to assistance of counsel or that his conviction could later be used to enhance his sentence thirty years. The West Virginia court denied Cuppett's petition, and also stated that, in accordance with its practice in 1962, no transcript had been made of the guilty plea hearing. Cuppett then moved in West Virginia court for the appointment of counsel to assist him in attacking his 1962 conviction. The West Virginia court denied Cuppett's motion on May 9, 1984, stating "that this matter is final and closed in the State of West Virginia and to allow it to be reopened would mean that finality would never attach to a criminal action in this jurisdiction."

On May 2, 1984, Cuppett filed a pro se petition for post-conviction relief in Indiana state court. Cuppett argued, inter alia, that he received ineffective assistance of counsel because his attorney in the Indiana state court and on appeal did not object to the use of his 1962 West Virginia conviction as part of the habitual offender sentence enhancement. The Indiana post-conviction court held an evidentiary hearing to explore Cuppett's contention, and subsequently denied Cuppett's petition, specifically finding that Cuppett had waived his right to counsel. The Indiana Court of Appeals upheld the denial in an unpublished memorandum opinion. Cuppett v. Indiana, 502 N.E.2d 503 (Ind.App.1986) (Table). The Indiana appellate court stated that "[i]n Indiana, the general rule is that the alleged invalidity of a predicate felony may not be challenged during habitual offender proceedings when the prior final judgment is regular on its face. Edwards v. State (1985), Ind., 479 N.E.2d 541, 547." Mem. op. at 3. However, the court explained, "Indiana law permits a defendant to raise as a defense in the habitual offender proceeding the alleged invalidity of those prior convictions if he can show that he was not represented by counsel or knowingly and intelligently waived such representation at the time of these convictions. Morgan v. State (1982), Ind., 440 N.E.2d 1087, 1088." Id. (emphasis added). The court held that the statement on the West Virginia court judgment roll order that Cuppett "being in custody, [was] brought out of jail by the Sheriff and placed before the Bar of the Court, and [was] without counsel, did not desire counsel appointed by this Court" indicated that Cuppett "was aware of his right to representation [by counsel]" and waived it. Id. (emphasis added). "Consequently," the court concluded, "the record was regular on its face, and an objection [by Cuppett's attorney

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to the use of the 1962 conviction] would have been unavailing." Id. The Indiana Supreme Court denied Cuppett's request for a transfer on July 21, 1987 in an unpublished order.

Having exhausted his potential state court remedies, Cuppett filed a petition for a writ of habeas corpus in Indiana federal district court in November, 1987. As in his state court petitions, his central claim was that he was denied effective assistance of counsel during his Indiana trial and direct appeal because of his attorney's failure to attack the validity of his 1962 conviction. In an unpublished order issued January 9, 1989, the district court denied Cuppett's petition. The district court began its analysis by stating that if Cuppett's "waiver of counsel during his 1962 West Virginia burglary hearing" was valid "then the ineffective assistance of counsel and unconstitutional enhancement claims are easily resolved" because Cuppett's attorneys could not be deemed incompetent for failing to challenge a conviction free of error. Turning to the waiver question, the district court stated that the West Virginia record reflected that Cuppett appeared "without counsel, and did not desire counsel appointed by this Court to represent" him. The district court reasoned that the word "appointed" carries with it

"a specific connotation referring to judicial assignment of cost free counsel to a criminal defendant. Any other use of the word would be inappropriate in the common language of trial procedure. The record, therefore, indicates that the defendant had been informed of his right to have an attorney notwithstanding his inability to pay and knowingly and intelligently waived that right. Thus his conviction was valid and was appropriately used to enhance the petitioner's robbery sentence."

The district court also ruled that the

"fact that both trial and appellant (sic) counsel failed to raise the invalid waiver issue lacks any indication of professional ineffectiveness. The determination by his attorneys that the 1962 trial court record demonstrated a valid waiver of counsel was not evidence of deficient conduct. Their familiarity with the language of the law quite properly led to such a conclusion. Nor is it likely that any objection would have altered the outcome since the court would most likely have denied it."

Cuppett appeals the district court's denial of his petition, arguing that he received ineffective assistance of counsel.

II.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court defined the burden a defendant must carry in order to successfully bring an ineffective assistance of counsel claim:

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable."

Id. at 687, 104 S.Ct. at 2064. This court has held that "[t]o establish that counsel's conduct was deficient, the defendant must show counsel's specific acts or omissions which, viewed from the perspective of counsel at the time of trial, fell below the standard of reasonable professional assistance." United States v. Payne, 741 F.2d 887, 891 (7th Cir.1984) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Acts or omissions of counsel are outside the range of professionally competent assistance when "counsel's representation [falls] below an objective standard of reasonableness ... under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. The Supreme Court cautioned that,

"[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight,

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to reconstruct the circumstances of counsel's...

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