Atkins v. Zenk

• Decision Date: 31 January 2012
• Docket Number: No. 11–1891.,11–1891.
• Citation: 667 F.3d 939
• Parties: Dale J. ATKINS, Petitioner–Appellant, v. Michael ZENK, Superintendent, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

667 F.3d 939

Dale J. ATKINS, Petitioner–Appellant,

v.Michael ZENK, Superintendent, Respondent–Appellee.

No. 11–1891.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 2011.Decided Jan. 31, 2012.

Eric K. Koselke (argued), Attorney, Indianapolis, IN, for Petitioner–Appellant.

Kelly A. Miklos (argued), Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent–Appellee.

Before POSNER and KANNE, Circuit Judges, and PRATT, District Judge. ^*PRATT, District Judge.

Dale J. Atkins was convicted by a jury of attempted murder, criminal confinement, domestic battery, and invasion of privacy and sentenced to 51 years in prison. Atkins filed a post-conviction relief petition in Indiana state court, but obtained no relief. He then filed a federal habeas corpus petition under 28 U.S.C. § 2254, claiming that he was deprived of his Sixth Amendment right to effective assistance of trial counsel. The district court denied the petition, but granted a certificate of appealability. Atkins appealed, and we affirm.

I. Background

A. Facts

In 2003, Atkins married Yvonne Atkins (“Yvonne”). Some time later (it is unclear when), they began living apart, and the relationship soon degenerated into a cycle of violence. On January 26, 2004, Atkins stood at the door of Yvonne's home with a butter knife in one hand and a butcher knife in the other. Atkins fled when Yvonne's brother-in-law answered the door. On February 27, 2004, Atkins attacked Yvonne, was arrested, and pled guilty to domestic battery. On April 26, 2004, Yvonne sought and received a protective order, which was served on Atkins on April 29, 2004. The protective order instructed Atkins to stay away from Yvonne and gave her exclusive possession of the home.

Unfortunately, the protective order had little deterrent effect. Three days later, on May 2, 2004, Yvonne attended a neighbor's cookout. When she returned home after 8:00 p.m., she locked the door and called her neighbor to say that she had arrived home safely. Yvonne also called her nephew, asked him to stay the night, and unlocked the door so he could let himself into the home. This practice had become routine, given Atkins's increasingly volatile behavior.

Yvonne soon heard a sound at the door, which turned out to be Atkins. Atkins stated that he wanted a drink, proceeded to the kitchen, and opened the refrigerator. Yvonne screamed at him to leave and then attempted to exit the home. Atkins pulled Yvonne towards him, put a knife against her neck, and cut her. He subsequently held her against a doorway, stated “I'm tired of this shit, bitch,” and stabbed her approximately ten times. One of the stab wounds was less than one inch from Yvonne's heart, causing blood to spurt from her chest every time her heart beat. After Atkins fled the residence, Yvonne ran to her front porch, where she yelled for help. Thankfully, Yvonne's neighbors responded to her cries and assisted her until medical personnel arrived. During this time, Yvonne told her neighbors that Atkins had stabbed her. Yvonne was treated for internal injuries, including a collapsed lung and a stab wound to the spleen. Atkins fled Indiana and was ultimately apprehended in Georgia.

The State charged Atkins with attempted murder, criminal confinement, domestic battery, and invasion of privacy. Atkins was represented by attorney Todd Ess. Prior to trial, Ess met with Atkins four or five times to discuss trial strategy. Ess also filed a motion in limine concerning a telephone call that Atkins had made to Yvonne after the attack, reviewed discovery, formulated a trial strategy, deposed Yvonne, and investigated ways to impeach Yvonne's credibility. From the outset of the attorney-client relationship, Atkins maintained that he was not at Yvonne's home during the stabbing, although he had occasionally equivocated on this point.

Based on Atkins's claim that he was not present at the home and the fact that Atkins was apprehended in Georgia, Ess prepared to forge an alibi/misidentification defense. On the day before trial, however, Atkins admitted to Ess that he had, in fact, stabbed Yvonne. But Atkins insisted that the stabbing was an accident that occurred during mutual combat, and that he had not intended to kill Yvonne.

In the wake of this revelation, Ess asked Atkins if he wanted to proceed using an accident defense or a misidentification defense. Ess advised Atkins that the best defense was for Atkins to testify as to how the incident occurred, that there was mutual combat, and to his state of mind during the incident. This way, Ess could seek a lesser-included offense instruction, thus allowing Ess to argue that Atkins was not guilty of attempted murder, which requires “specific intent to kill.” See Osborne v. State, 754 N.E.2d 916, 924 (Ind.2001); Ind.Code § 35–41–5–1. Atkins resisted, telling Ess that he would not testify; that he did not want to answer questions about the incident or his relationship with Yvonne; and that, if he did testify, he would not tell the jury about using cocaine the night of the incident (even though he had done so). Stuck in a strategic quandary, Ess contemplated other defenses based on lack of intent, but decided to abandon them in light of Atkins's decision to exercise his right not to testify. Further, Atkins informed Ess that he wanted to pursue the “all or nothing” approach (i.e., the alibi/misidentification defense). Ess complied with Atkins's request.

During opening statements, Ess falsely stated to the jury that Atkins “went to Georgia and that's where he was when this occurred[.]” In a similar fashion, he stated that police did not find Atkins at the scene “[b]ecause he was in Georgia.” Nonetheless, despite raising the specter of an alibi, Ess did not file the statutorily-required notice of alibi, see Ind.Code § 35–36–4–1; nor did he tender a jury instruction concerning an alibi defense.

The defense rested after the State presented its case-in-chief. During its closing argument, the State highlighted that the defense had not introduced any evidence that Atkins was actually in Georgia during the stabbing. In Ess's closing argument, he emphasized that the State's evidence was confusing, incomplete, and convenient for the victim. Ess argued that, in total, the holes in the evidence added up to reasonable doubt. The jury did not buy Atkins's defense, finding him guilty on all counts. Subsequently, the trial judge sentenced Atkins to an aggregate prison term of 51 years. At sentencing, the trial judge stated, “Mr. Ess did a good job for you, Mr. Atkins. He was working uphill but, as with your attitude towards Ms. Atkins, you don't seem to appreciate those who are trying to help you or do better for you[.]”

B. Post-trial Proceedings

After his conviction, Atkins filed a direct appeal, claiming that the evidence was insufficient to convict him and that the trial court improperly weighed sentencing factors. In an unpublished opinion, the Indiana Court of Appeals affirmed. Atkins v. State, 49A05–0506–CR–00339 (Ind.Ct.App. Jan. 18, 2006).

On November 30, 2006, Atkins filed a petition for post-conviction relief, claiming that Ess had provided ineffective assistance of counsel by pursuing an “irrational alibi defense” that was based on a known lie. The trial court held an evidentiary hearing, where both Atkins and Ess testified. There, Atkins admitted that he “stuck” Yvonne purposely, and, although he did not intend to kill her, he knew what he was doing. Specifically, Atkins testified: “I stabbed her in front of her breast and I took it to the left a little bit, just thinking that I would injure her breast and I left, and that was the only injury that I purposely done.”

Following the hearing, the trial court, in a thorough 18–page order, denied Atkins's petition. Specifically, the trial court addressed both prongs of the test for ineffective assistance of counsel: deficient performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Atkins appealed, again claiming that Ess provided ineffective assistance by pursing the alibi/misidentification defense. In an unpublished decision, the Indiana Court of Appeals affirmed the denial of post-conviction relief. Atkins v. State, 49A04–0903–PC–169, 2009 WL 3364796 (Ind.Ct.App. Oct. 20, 2009). In doing so, the appellate court only addressed the deficient performance prong of the Strickland test, ruling that “[c]ounsel has the discretion to determine what strategy is best under the circumstances.... It is not for us to speculate as to what may or may not have been advantageous trial strategy.” Following this decision, the Indiana Supreme Court denied review.

Atkins then petitioned the district court for a writ of habeas corpus based on his ineffective assistance of counsel argument. The district court denied the petition, but granted a certificate of appealability. Atkins v. Superintendent, 3:10–cv–085–JVB, 2011 WL 971169 (N.D.Ind. Mar. 17, 2011). Atkins appealed. Additional facts are added below as needed.

II. Analysis

On appeal, Atkins argues that his “right to effective assistance of counsel was violated when counsel knowingly raised a false alibi defense during opening statements,” even though counsel “had no witnesses or evidence to support it.” According to Atkins, Ess's performance was so deficient that it prejudiced his defense. In that same vein, Atkins argues that the Indiana state courts unreasonably applied federal law when denying his request for post-conviction relief.

A. Standard of Review

When conducting a habeas review, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citations omitted). “In an appeal from a ruling on a petition for habeas relief, we review the district court's findings of fact for clear error and its rulings on issues of...