Bunkley v. Meachum

• Decision Date: 30 October 1995
• Docket Number: D,No. 118,118
• Citation: 68 F.3d 1518
• Parties: Daryl H. BUNKLEY, Petitioner-Appellant, v. Larry R. MEACHUM, Commissioner of Correction, State of Connecticut, Respondent-Appellee. ocket 95-2057.
• Court: U.S. Court of Appeals — Second Circuit

Page 1518

68 F.3d 1518

Daryl H. BUNKLEY, Petitioner-Appellant, v. Larry R. MEACHUM, Commissioner of Correction, State of Connecticut, Respondent-Appellee.

No. 118, Docket 95-2057.

United States Court of Appeals Second Circuit.

Argued Sept. 8, 1995.

Decided Oct. 30, 1995.

William B. Westcott, Legal Intern, Hartford, CT, University of Connecticut School of Law Legal Clinic (Michelle Gouin, Legal Intern, Timothy H. Everett, Esq., of Counsel), for Petitioner-Appellant.

James M. Ralls, Wallingford, CT, Assistant State's Attorney, Appellate Bureau, Office of the Chief State's Attorney, for Respondent-Appellee.

Before: FEINBERG, KEARSE and LEVAL, Circuit Judges.

FEINBERG, Circuit Judge:

Daryl H. Bunkley, a Connecticut state prisoner, appeals from a final judgment of the United States District Court for the District of Connecticut (Jose A. Cabranes, Circuit Judge, sitting by designation), granting summary judgment to respondent, Larry R. Meachum, Commissioner of Correction for the State of Connecticut, on Bunkley's petition for a writ of habeas corpus. In his petition, Bunkley claimed that his Sixth Amendment right to effective assistance of counsel was violated when his appellate counsel failed to raise an issue on direct appeal to the Connecticut Supreme Court that would most likely have resulted in a reversal and a new trial. For the reasons stated below, we affirm.

I. Background

In August 1982, after attempting to shoplift some clothes, Bunkley fled the scene of the crime in his automobile. As he was being pursued by police, Bunkley ran through a red light, struck a vehicle as he was passing it, momentarily ran off the road, and then, crossing over the center line, collided head-on with an oncoming vehicle, killing the driver of that vehicle and her two daughters, and seriously injuring her son and his friend. Following a jury trial in Connecticut Superior Court, Bunkley was convicted in May 1984 of three counts of manslaughter in the second degree and two counts of assault in the third degree. In June 1984, he was sentenced to 22 years in prison.

At Bunkley's trial, the judge gave the following instruction on the rule of circumstantial evidence:

Now I wish to instruct you on the rule of circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact, or set of facts. Such an inference may be made, provided two elements in the application of this rule are satisfied; first, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and second, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true. (emphasis added)

Bunkley's counsel made no objection to the instruction at trial.

Prior to the deadline for filing the appellant's brief in Bunkley's direct appeal to the Supreme Court of Connecticut, that court ruled that an almost identical jury instruction given under similar circumstances was reversible error. See State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985). In Bunkley's appeal, his counsel raised seven assignments of error by the trial court, but none with respect to the circumstantial evidence instruction. In March 1987, Bunkley's conviction was affirmed. See State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987).

In October 1987, Bunkley filed a petition for a writ of habeas corpus in Connecticut Superior Court. He raised three issues directly related to the circumstantial evidence instruction: (1) ineffective assistance of trial counsel for not objecting to the instruction, (2) ineffective assistance of appellate counsel for not raising the issue on direct appeal ¹, and (3) violation of Bunkley's due process right to a fair trial. After an evidentiary hearing, the state judge dismissed the petition in May 1990. See Bunkley v. Warden, No. CV-87-414, 1990 WL 271053, (Conn.Super. May 30, 1990), 1990 Conn.Super. LEXIS 383 (May 30, 1990).

Bunkley appealed that decision to the Connecticut Supreme Court, pursuing only the claim of ineffective appellate counsel. In June 1992, the judgment of the Superior Court was affirmed. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 610 A.2d 598 (1992) (in banc).

In June 1993, Bunkley filed in the federal district court the habeas petition now before us. The sole claim raised was ineffective assistance of appellate counsel for failure to raise the issue of the circumstantial evidence instruction on Bunkley's direct appeal. On cross-motions for summary judgment, Magistrate Judge Joan Glazer Margolis recommended denying Bunkley's motion and granting respondent's. Reviewing the possible effect of the circumstantial evidence instruction on the jury, she determined that Bunkley was not "deprived of any substantive or procedural right to which he is entitled, nor is the result of the conviction or appeal unreliable or unfair." After "a full and de novo review of the record," Judge Cabranes approved and adopted the magistrate's recommended ruling.

II. Discussion

A. Connecticut Supreme Court Review of Circumstantial Evidence Instructions

When reviewing a jury instruction on circumstantial evidence, the Connecticut Supreme Court has stated that "[w]here the principal factual issue is intent, which is characteristically proven by circumstantial evidence; the court's instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny." State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86 (quoting State v. Farrar, 7 Conn.App. 149, 155, 508 A.2d 49 (1986)) (citation omitted), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). Close scrutiny in this context means that the instruction will be considered in isolation from the rest of the jury charge to determine whether or not the jury was misled as to the state's burden of proof. See State v. Rodgers, 198 Conn. 53, 57-59, 502 A.2d 360 (1985); State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). In Rodgers and Whelan, the court characterized an instruction almost identical to that given at Bunkley's trial to be reversible error. The error was to allow the jury to use a standard of more probable than not to infer a fact going to the essential element of intent. Such an instruction "unconstitutionally diluted the state's burden of proving the essential elements of the crime beyond a reasonable doubt." Whelan, 200 Conn. at 755, 513 A.2d 86. Rodgers was decided in December 1985, approximately two months before Bunkley's brief on his direct appeal was to be filed; and Whelan was decided in August 1986, three months before Bunkley's appeal was argued in the Connecticut Supreme Court.

In Rodgers and Whelan, the Connecticut Supreme Court did not refer to either the Connecticut constitution or state constitutional cases in discussing the issues posed here. Whelan refers to federal constitutional principles such as "the fundamental constitutional right that the state establish [a defendant's] guilt beyond a reasonable doubt," 200 Conn. at 756, 513 A.2d 86 (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)), and an impermissible shifting of the burden of proof on the element of intent, id. (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). Federal courts "will presume that there is no independent and adequate state ground for a state court decision when the decision 'fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.' " Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983)). See also Pinkney v. Keane, 920 F.2d 1090, 1095 (2d Cir.1990), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991). We therefore presume that the Connecticut Supreme Court interpreted and applied federal law in Rodgers and Whelan.

The Connecticut Supreme Court's interpretation of federal law in those cases is contrary to the interpretation afforded under similar circumstances by the United States Supreme Court and by this court. The proper application of federal law requires that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). See also Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985); Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir.1988); United States v. Viafara-Rodriguez, 729 F.2d 912, 914 (2d Cir.1984). The ultimate question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147, 94 S.Ct. at 400.

B. Ineffective Assistance of Counsel

In order to sustain a claim of ineffective assistance of trial counsel it must be shown that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To establish prejudice "[t]he 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. This court has adopted the Strickland test in assessing claims of ineffective appellate counsel. See Abdurrahman v....