Butcher v. Marquez

• Decision Date: 15 May 1985
• Docket Number: No. 84-5646,84-5646
• Citation: 758 F.2d 373
• Parties: 17 Fed. R. Evid. Serv. 1494 Charles Bainton BUTCHER, Petitioner/Appellant, v. J. MARQUEZ, Superintendent, and Attorney General, State of California, Respondents/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 373

758 F.2d 373

17 Fed. R. Evid. Serv. 1494

Charles Bainton BUTCHER, Petitioner/Appellant, v. J. MARQUEZ, Superintendent, and Attorney General, State of California, Respondents/Appellees.

No. 84-5646.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 8, 1984.

Decided April 16, 1985.

As Amended May 15, 1985.

Charles Bainton Butcher, pro se.

Donald Roeschke, Los Angeles, Cal., for respondents/appellees.

On appeal from the United States District Court for the Central District of California.

Before NELSON, BOOCHEVER, and REINHARDT, Circuit Judges.

BOOCHEVER, Circuit Judge:

Butcher, a state prisoner, was convicted by a California court of assault with intent to commit murder and assault with a deadly weapon. On appeal of the district court's dismissal of his habeas petition, Butcher makes several claims based on ineffective assistance of counsel. Butcher is not entitled to relief because he has, under the facts of this case, failed to show that counsel was not reasonably competent and diligent.

FACTS

Charles Butcher was convicted in California state court of assault with intent to commit murder and related charges. ¹ The jury found that he shot his ex-wife, Carol Vannoy, and her male companion in March 1979 while the two victims were in bed at the man's house. Butcher raises six claims, four concerning ineffective assistance of trial counsel, one alleging ineffective assistance of appellate counsel, and the last concerning an evidentiary error by the state trial judge. His ineffective assistance claims are, first, that his counsel erred in failing to seek a "heat of passion" jury instruction; second, that his counsel failed to obtain suppression of a gun seized from Butcher in May 1978 which was introduced into evidence for the March 1979 shooting, which was apparently committed with a similar weapon; third, that his counsel improperly stipulated to facts concerning a gas leak which occurred under suspicious circumstances in Vannoy's kitchen. Fourth, he claims that his appellate counsel acted improperly in failing to raise these three issues in his state appeal and in failing to argue that the government's destruction of the cracked gas line was destruction of evidence.

The facts concerning the seizure of the gun from Butcher in May 1978 and the gas leak in February 1979 may be briefly set forth. Both incidents occurred before the March 1979 shooting and the facts relating to these two incidents were admitted concerning Butcher's motive and intent to murder Vannoy, among other purposes. In May 1978, Vannoy reported to the police that Butcher had made telephone death threats to her. Several hours later, police stopped Butcher when he was seen driving near Vannoy's house. The police searched his car and found the gun. In September 1978, Butcher and Vannoy were married, but Vannoy soon requested a separation. Butcher left her house after a late-night argument in mid-February 1979. Vannoy was awakened later that night by the smell of gas. She discovered an open gas valve in her kitchen with a candle burning near it. She reported the incident to the police, but Butcher was not charged.

DISCUSSION

To obtain relief for ineffective assistance of counsel on a habeas corpus review, the petitioner must show that counsel made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and petitioner must also demonstrate prejudice. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984); Hines v. Enomoto, 658 F.2d 667, 674-75 (9th Cir.1981). There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in all significant decisions made. Strickland, 104 S.Ct. at 2066.

Butcher has exhausted his state remedies, as required by 28 U.S.C. Sec. 2254. The state court denied Butcher's petition for habeas corpus without a hearing and without findings of fact, and its decision does not "reliably and adequately" imply particular findings on material facts. See 28 U.S.C. Sec. 2254(d); Townsend v. Sain, 372 U.S. 293, 313-14, 83 S.Ct. 745, 757-58, 9 L.Ed.2d 770 (1963). The state court did determine that Butcher's counsel had not provided ineffective assistance, but this conclusion was a mixed question of law and fact which the federal court reviews de novo. Strickland, 104 S.Ct. at 2070; see Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam); Fendler v. Goldsmith, 728 F.2d 1181, 1190 n. 21 (9th Cir.1984).

Lacking state court findings of fact, therefore, the district court acted properly in reviewing Butcher's claims based upon the state court trial record and adopting detailed findings. It concluded that Butcher's counsel did not render ineffective assistance. We review this mixed question of law and fact de novo, giving deference to the findings of the underlying facts but reserving the right to give different legal weight to such facts. See Sumner, 455 U.S. at 597, 102 S.Ct. at 1306; Fendler, 728 F.2d at 1190 n. 21. In Satchell v. Cardwell, 653 F.2d 408, 413 (9th Cir.1981), cert. denied, 454 U.S. 1154, 102 S.Ct. 1026, 71 L.Ed.2d 311 (1982), we stated that the conclusions of both the state court and the district court concerning effective assistance of counsel were reviewed under the clearly erroneous standard. To the extent that this statement was not overruled by Sumner and Fendler, we explicitly reject it on the authority of Strickland, 104 S.Ct. at 2070.

In this case, we agree with the conclusions reached by both the state court and the district court and accept the facts as set forth by the district court, in lieu of any factual findings provided by the state court. See 28 U.S.C. Sec. 2254(d).

Butcher's first claim is that his counsel's failure to ask for a voluntary manslaughter instruction was ineffective assistance. Under the Strickland test, counsel's strategic choice to forgo an instruction for voluntary manslaughter was reasonable because counsel had good cause to believe that further efforts to obtain such an instruction would harm Butcher's case. As it was required to do under California law, see People v. Sedeno, 10 Cal.3d 703, 717 n. 7, 518 P.2d 913, 922 n. 7, 112 Cal.Rptr. 1, 10 n. 7 (1974), at the close of the evidence, the trial court, in clarifying an in-chambers discussion with counsel regarding jury instructions, stated that its understanding was that defense counsel was not advancing a theory of diminished capacity or heat of passion, and did not want any instructions that would tend to focus attention on those defenses. At that time defense counsel informed the court that he did not intend to offer any such instruction or to pursue those defenses since the case was "one of whether or not Mr. Butcher committed the act, not if he committed the act, why."

Apparently defense counsel, with adequate knowledge of the law and the evidence, abandoned pursuit of an instruction on voluntary manslaughter in accord with the strategy that he believed would procure the most advantageous defense for Butcher. It can be inferred that in taking this course of action counsel believed that such a request would have been fruitless or even harmful to his client.

The record demonstrates that counsel's beliefs were reasonable. Counsel's theory at trial was limited to an alibi defense concerning the March 1979 shooting, and properly so since that was the defense best supported by the evidence. The defendant testified that he could not have committed the shooting because he was in a bar at the time. Vannoy, Butcher's ex-wife, testified that she and Biers, her companion, who were both victims of the shooting, were shot while they were in bed for the night at Biers' house. She further testified that she first met Biers at a bar prior to going to his home. Thus, this is not a case of a husband returning home to find his wife in a compromising situation. There was no apparent reason for Butcher to go to Biers' home other than to confront the couple. Hence, the likelihood that the shootings resulted from sudden provocation in the heat of passion is tenuous at best. On that basis it is evident that counsel's belief that an alibi defense alone was appropriate, and that the facts of this case suggested that instructions on voluntary manslaughter were unnecessary, was reasonable.

Defense counsel need not request instructions inconsistent with its trial theory. See Sedeno, 10 Cal.3d at 716, 518 P.2d at 921, 112 Cal.Rptr. at 10. Moreover, any failure by the trial court to give such instructions sua sponte does not constitute reversible error if the error was invited, as it was in this case, by the defense's indication that such an instruction was not wanted. See Sedeno, 10 Cal.3d at 716 n. 6, 518 P.2d at 921 n. 6, 112 Cal.Rptr. at 9 n. 6. In that Butcher failed to prove that counsel erred and that the error was one that a reasonably competent attorney acting as a diligent conscientious advocate would not have made, a determination whether he was prejudiced under the second prong of the Strickland test need not be...