Woratzeck v. Ricketts

• Decision Date: 01 September 1987
• Docket Number: No. 85-2367,85-2367
• Citation: 820 F.2d 1450
• Parties: William Lyle WORATZECK, Petitioner-Appellant, v. James R. RICKETTS, and Donald Wawrzaszek, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1450

820 F.2d 1450

William Lyle WORATZECK, Petitioner-Appellant, v. James R. RICKETTS, and Donald Wawrzaszek, Respondents-Appellees.

No. 85-2367.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1986.

Decided June 25, 1987.

As Amended Sept. 1, 1987.

James J. Syme, Jr., Robinson & Syme, Glendale, Ariz., for petitioner-appellant.

Crane McClennen, Dept. of Law, Phoenix, Ariz., for respondents-appellees.

Appeal from the United States District Court for the District of Arizona.

ORDER

The prior opinion in this case, filed September 16, 1986, and published at 808 F.2d 1322, is hereby withdrawn. The attached opinion is filed in its place.

Before WALLACE, FARRIS and BOOCHEVER, Circuit Judges.

WALLACE, Circuit Judge:

Woratzeck appeals from the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He contends that he was denied his sixth amendment right to effective assistance of counsel and his fourteenth amendment right to due process. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.

I

Leslie was a 36-year old woman who suffered from Huntington's disease, had the mental capacity of a 15-year-old, and was physically disabled. She received general assistance from her aunt, Medina, and day-to-day assistance from other friends. Leslie lived in a trailer located in a trailer park that Woratzeck was purchasing from Medina and Medina's brother. Medina made the monthly rental payments to Woratzeck for Leslie's trailer. In February 1980, Woratzeck was over $2,000 behind in his payments to the Medinas for the trailer park property. Medina therefore did not pay the February rent for Leslie's trailer.

On March 6, 1980, Leslie was killed inside her trailer, and an undetermined amount of money was taken from her. The medical examiner testified that the assailant stabbed Leslie three times, strangled her, and delivered two blows to her head. Leslie's trailer was then lit on fire.

Woratzeck was indicted by a grand jury of Pinal County, Arizona, for first-degree felony-murder, Ariz.Rev.Stat.Ann. Sec. 13-1105.A.2, arson of an occupied structure, id. Sec. 13-1704, second-degree burglary, id. Sec. 13-1507, and armed robbery, id. Sec. 13-1904. A jury convicted him of first-degree felony-murder, second-degree burglary, and armed robbery, and acquitted him on the arson count. A sentencing hearing was held pursuant to Ariz.Rev.Stat.Ann. Sec. 13-703, and Woratzeck was sentenced to death on the first-degree felony-murder count and consecutive prison terms of 11.25 years and 15.75 years on the burglary and robbery counts. On appeal, the Arizona Supreme Court affirmed the convictions and sentences. See State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1982) (Woratzeck ). The trial court denied Woratzeck's motion for post-conviction relief under Ariz.R.Crim.P. 32, and the Arizona Supreme Court denied review. Woratzeck's petition for a writ of habeas corpus in federal district court was then denied, and he brought this appeal.

II

Woratzeck contends that he was denied his sixth amendment right to effective assistance of counsel because his attorney's performance during the trial and the sentencing proceeding was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (Strickland ). To obtain relief for a claim of ineffective assistance of counsel on a habeas corpus review, the petitioner must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and petitioner must also demonstrate prejudice." Butcher v. Marquez, 758 F.2d 373, 375-76 (9th Cir.1985) (Butcher ) (citing Strickland ); see Miller v. Stagner, 757 F.2d 988, 996 (9th Cir.), amended in other respects, 768 F.2d 1090 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986). Our review of counsel's performance is highly deferential: we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Darden v. Wainwright, --- U.S. ----, ----, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (Darden ); United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986). To demonstrate prejudice, Woratzeck 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." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The state court's findings of fact are entitled to deference pursuant to 28 U.S.C. Sec. 2254(d), and the district court's findings of fact are reviewed for clear error. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Nevertheless, whether the facts demonstrate unreasonable performance and prejudice are mixed questions of law and fact, id., that we review de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); Butcher, 758 F.2d at 376.

A.

Woratzeck first argues that his counsel's failure to request a jury instruction concerning a claim of right defense to robbery or theft constituted ineffective assistance of counsel. The claim of right defense provides that property taken by force under claim of right of ownership does not constitute robbery. State v. Hardin, 99 Ariz. 56, 59, 406 P.2d 406, 408 (1965); State v. Flores, 140 Ariz. 469, 473, 682 P.2d 1136, 1140 (Ct.App.1984). Woratzeck contends that his claim of right to rent due from Leslie negated the felonious intent required for a conviction of robbery or burglary. The state contends that it is questionable whether the claim of right defense still applies in Arizona to robbery. See Ariz.Rev.Stat.Ann. Secs. 13-1802.A.1, 13-1902.A, 13-1801.A.12; cf. State v. Lewis, 121 Ariz. 155, 157-58, 589 P.2d 29, 31-32 (Ct.App.1978) (criticizing claim of right defense to charge of robbery). We need not decide, however, whether the claim of right defense presently exists under Arizona law.

To find Woratzeck's trial counsel incompetent in failing to assert the claim of right defense, we must conclude (1) that a reasonably competent attorney would have considered the defense, and (2) that a reasonably competent attorney, having considered the defense, would also not reject it for strategic reasons. In conducting our examination, we must "eliminate the distorting effects of hindsight [by] reconstruct[ing] the circumstances of counsel's ... perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Throughout the trial, Woratzeck maintained that he did not take money from Leslie and that he never entered her trailer on the day she was killed. He informed his attorney that it would have been impossible for him to have robbed and killed Leslie because at the very time she was robbed and killed he was burglarizing the Three G's Nursery. He never gave his attorney any reason to think that he desired to rely on any defense other than his alibi. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Furthermore, claim of right is not the sort of defense that immediately comes to mind as a defense to murder. Given the nature of the crime charged and given Woratzeck's steadfast assertion that he did not take any money form Leslie, we cannot conclude that a reasonably competent attorney would have considered asking for a claim of right instruction.

Even if reasonably competent counsel would have considered the defense, research would have shown that the defense may not be available in the circumstances of Woratzeck's case. In Arizona's seminal case concerning the application of the claim of right doctrine to robbery, Bauer v. State, 45 Ariz. 359, 43 P.2d 203 (1938), a defendant asserted as a defense at trial that she did not take money from the victim by force. The trial court's instructions to the jury precluded a claim of right defense. The Arizona Supreme Court affirmed, stating that the defendant

could not defend by denying that she took the money by force and in her brief assume the position that she took it forcibly in the belief that she had a right to satisfy and honest claim in that way. If she had admitted upon the witness stand that she took the money by force for the reason she urges here, the record would have presented the question whether her claim was bona fide.... In other words, even if the contention of appellant were conceded to be the law, there was no testimony upon which an instruction applying it could have been predicated.

Bauer, 43 P.2d at 205-06. Even though alternate defenses are generally permitted, reasonably competent counsel may have concluded, therefore, that Woratzeck could not, under Arizona law, contend that he did not take the money and also ask for an instruction concerning a defense which required him to admit that he did take the money.

Furthermore, even if Woratzeck's counsel found a way to distinguish Bauer, he would have had a difficult time fitting the claim of right defense into the facts of this case. He would have had to convince the jury that Leslie owed Woratzeck money, although evidence in the record tended to show that Leslie's aunt, Medina, was actually responsible for paying the rent. In addition, counsel would have had to convince the jury that Woratzeck did not take more than the amount that was owed him, although evidence in the record tended to show that he did take a greater amount.

Most importantly, the claim of right defense, even if available under Arizona law and even if believed by the jury, would not be a complete defense to the felony-murder charge. If the jury acquitted on the robbery count, it was still free to convict Woratzeck of felony-murder based on the...