Aliberti v. Solem, 16017

• Citation: 428 N.W.2d 638
• Decision Date: 26 May 1988
• Docket Number: No. 16017,16017
• Parties: Steven V. ALIBERTI, Petitioner and Appellant, v. Herman SOLEM, acting in his capacity as the duly-appointed Warden of the South Dakota State Penitentiary, Respondent and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 638

428 N.W.2d 638

Steven V. ALIBERTI, Petitioner and Appellant, v. Herman SOLEM, acting in his capacity as the duly-appointed Warden of the South Dakota State Penitentiary Respondent and Appellee.

No. 16017.

Supreme Court of South Dakota.

Considered on Briefs May 26, 1988.

Decided Aug. 31, 1988.

Scott D. McGregor, Rapid City, for petitioner and appellant.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for respondent and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

WUEST, Chief Justice.

Petitioner, Steven V. Aliberti, appeals the trial court's order denying habeas corpus relief. We affirm.

On November 15, 1985, petitioner was convicted of aggravated assault pursuant to SDCL 22-18-1.1(3). He was subsequently sentenced to serve ten years imprisonment with three years conditionally suspended. We affirmed petitioner's conviction on direct appeal in State v. Aliberti, 401 N.W.2d 729 (S.D.1987).

Petitioner's conviction for aggravated assault stems from a quarrel involving petitioner and several family members. The altercation commenced when petitioner came home after a day of chopping wood and drinking. During the incident, petitioner physically attacked his sister who, acting in self-defense, struck him on the head with a length of pipe. Petitioner then threatened to burn down the building in which the family lived. Petitioner's sister summoned the police after petitioner cut off the power and lights to the building. Upon the arrival of the police, petitioner started to walk away from the scene. An officer followed him and told petitioner that he wanted to talk with him. Petitioner swung around and struck the officer in the head with his fist. Aliberti, 401 N.W.2d at 729.

Petitioner was advised of his constitutional right to trial by jury at his arraignment. Prior to the start of the scheduled jury trial, however, petitioner waived his right to trial by jury and requested that the case be tried to the court. This court held that petitioner "waived his right to a jury trial voluntarily, knowingly, intelligently, and with full knowledge of the relevant circumstances and likely consequences." Aliberti, 401 N.W.2d at 731.

On this habeas corpus appeal, petitioner claims he was denied effective assistance of counsel. Specifically, petitioner contends that his attorney should not have advised him to waive his right to trial by jury. Petitioner also claims that his intoxication and the blow to his head prevented him from forming the specific intent required for the crime of aggravated assault. Although defense counsel based petitioner's defense on this theory of "diminished capacity," petitioner asserts that the diminished capacity defense was inadequately prepared and presented.

Adjudicating petitioner's claims of ineffective assistance of counsel requires that we first address the standard of review for the disposition of a petition for habeas corpus relief. This court has never expressly set forth the standard by which we review a lower court's ruling in a habeas corpus proceeding. ¹

Although we have not explicitly delineated the standard of review for findings of fact and conclusions of law arising out of habeas corpus proceedings, we are mindful of the fact that we have set forth our scope of review regarding such proceedings. This court has often stated that in habeas corpus proceedings, the scope of review is limited because the remedy sought is in the nature of a collateral attack upon a final judgment. Satter v. Solem, 422 N.W.2d 425, 427 (S.D.1988); Everitt v. Solem, 412 N.W.2d 119, 120-21 (S.D.1987); Podoll v. Solem, 408 N.W.2d 759, 760 (S.D.1987); Goodroad v. Solem, 406 N.W.2d 141, 142 (S.D.1987); Loop v. Solem, 398 N.W.2d 140, 143 (S.D.1986); Application of Williams, 86 S.D. 208, 210, 193 N.W.2d 793, 794 (1972); Application of Kiser, 83 S.D. 272, 283, 158 N.W.2d 596, 602 (1968); State ex rel Burns v. Erickson, 80 S.D. 639, 645, 129 N.W.2d 712, 715 (1964); State ex rel Anderson v. Jameson, 51 S.D. 540, 545, 215 N.W. 697, 699 (1927). "[H]abeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights." Satter, 422 N.W.2d at 427; Goodroad, 406 N.W.2d at 144; State ex rel Burns, 80 S.D. at 645, 129 N.W.2d at 715.

In determining the standard of review for habeas corpus proceedings, we look to the federal courts for guidance. Federal courts that have been asked to review a state or federal district court's factual findings in a habeas corpus proceeding afford considerable deference to the lower court's findings on basic, primary facts. Such findings of fact will not be set aside unless they are clearly erroneous. See Blackburn v. Foltz, 828 F.2d 1177, 1181 (6th Cir.1987); Carter v. Rafferty, 826 F.2d 1299, 1304 (3rd Cir.1987); Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985); Meeks v. Bergen, 749 F.2d 322, 327 (6th Cir.1984); United States v. Auerbach, 745 F.2d 1157, 1161 (8th Cir.1984); Hayes v. Maggio, 699 F.2d 198, 201 (5th Cir.1983).

Although the lower court's findings of fact are presumed to be correct, this presumption of correctness does not extend to the conclusions drawn from the application of legal principles to those factual findings. Applying legal principles to findings of fact creates mixed questions of law and fact. Federal courts will review mixed questions of law and fact de novo, giving deference to factual findings but reserving the right to give different legal weight to the facts. See Blackburn, 828 F.2d at 1181; Carter, 826 F.2d at 1304; Martin v. Kemp, 760 F.2d 1244, 1247 (11th Cir.1985); Butcher, 758 F.2d at 376; Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983); Adams v. Jago, 703 F.2d 978, 980 (6th Cir.1983).

We are persuaded that this same standard of review applied by the federal courts should also apply in this court's review of a circuit court's habeas ruling, particularly when that ruling involves claims based on ineffective assistance of counsel. Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel.

It is well settled that for a defendant to prevail on a claim of ineffective assistance of counsel, he must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See also Waff v. Solem, 427 N.W.2d 118 (S.D.1988); Conaty v. Solem, 422 N.W.2d 102 (S.D.1988); Luna v. Solem, 411 N.W.2d 656 (S.D.1987). The defendant meets the requirements of the Strickland test by proving that his attorney's performance was incompetent and that, as a result, the defendant was prejudiced. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305, 323 (1986); Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2065, 2068, 80 L.Ed.2d at 693-94, 697; Waff, 427 N.W.2d at 121. See also Conaty, supra; Luna, supra.

With respect to the performance component of the Strickland test, the defendant must show more than that the trial strategy of the defense counsel backfired or that another attorney would have prepared and tried the case in a different manner. The defendant must overcome the strong presumption that counsel was competent. Kimmelman, 477 U.S. at 381, 106 S.Ct. at 2586, 91 L.Ed.2d at 323; Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694; Waff, 427 N.W.2d at 121.

Because of the difficulties inherent in [evaluating counsel's conduct from his perspective at the time], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694 (citation omitted).

When reviewing counsel's performance, this court will not make a competency determination on the basis of hindsight. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Conaty, 422 N.W.2d at 103 (quoting, Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). The function of this court is not to assume the role of a Monday morning quarterback. We will not "second-guess the tactical decisions of trial counsel, nor will we substitute our own theoretical judgment for that of the trial attorney." Conaty, 422 N.W.2d at 103, Woods v. Solem, 405 N.W.2d 59, 62 (S.D.1987); State v. Dornbusch, 384 N.W.2d 682, 686-87 (S.D.1986). Instead, this court in deciding an ineffectiveness of counsel claim will evaluate the reasonableness of counsel's representation "from counsel's perspective at the time of the alleged error and in light of all circumstances." Waff, 427 N.W.2d at 121 (quoting Kimmelman, 477 U.S. at 381, 106 S.Ct. at 2586, 91 L.Ed.2d at 323); Luna, 411 N.W.2d at 658 (quoting Kimmelman, supra ). The ultimate test of whether trial counsel was ineffective is whether under the entire record and totality of the circumstances, counsel's performance was within the range of normal competency. See Kimmelman, 477 U.S. at 381, 106...