Clark v. Duckworth

• Decision Date: 12 August 1991
• Docket Number: Civ. No. S 89-270.
• Citation: 770 F. Supp. 1316
• Parties: Charles CLARK, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

770 F. Supp. 1316

Charles CLARK, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.

Civ. No. S 89-270.

United States District Court, N.D. Indiana, South Bend Division.

August 12, 1991.

Raymond L. Balogh, Jr., Osceola, Ind., for petitioner.

David A. Nowak, Office of Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This court must now comply with the mandate of the United States Court of Appeals For the Seventh Circuit in the reported decision of Clark v. Duckworth, 906 F.2d 1174 (7th Cir.1990). Specifically, Part IV of Judge Cudahy's opinion at pages 1178-79 states:

This conclusion, however, should not be read to suggest that Clark has defaulted all of his habeas claims. Indeed, the district court based its decision to grant Clark's petition for habeas corpus on a claim never made by Clark in his brief before that court. In its Memorandum and Order, the district court concluded that it had "no choice but to grant this writ" because "the reference to threats by the witness, Terry Isaacs, upon questioning by Judge Kerrigan is within the scope of the constitutional violation found in Dudley." Memorandum and Order at 26, 24. But Clark never directly claimed a Dudley violation in federal court, rather, he claimed that his attorney's failure effectively to prevent Isaacs from testifying to threats he received constituted ineffective assistance of counsel. This claim was contained in Ground Two of his petition:

Petitioner was denied Effective Assistance of counsel in that, counsel failed to move for a mistrial or cross-examine a state witness after the witness testified he had received threats not to testify, which resulted in prejudice to petitioner in that, the evidence of guilt was weakly supported, and the jury was allowed to infer that petitioner had made the threats, contrary to the Sixth Amendment to the United States Constitution.

Further, although Clark mentioned the Dudley issue in his "Traverse to Return," he did so only to prove that "his attorneys sic performance fell below an objective standard of reasonableness, when he failed to move for a mistrial or cross-examine the witness to demonstrate that the petitioner had nothing to do with the threats." Traverse to Return at 23 (emphasis supplied). Clark did not argue that the Dudley violation, by itself, constituted grounds for habeas corpus relief.

The district court should have addressed Clark's claim, as it appeared in his brief, that he received ineffective assistance of counsel. Its failure to do so requires us to remand the case to the district court for reconsideration of this claim. Clark did not waive this claim: he appears to have properly presented it to the Indiana Court of Appeals, which reviewed his appeal for post-conviction relief, and to the federal district court, which reviewed his petition for habeas corpus. See Memorandum Decision at 2 n. 1 (Ind.App.Ct. Nov. 22, 1988) (unpublished) ("Because the same counsel represented Clark in his appeal and at trial, he has not waived his claim of ineffective assistance of counsel. Davis v. State (1975), Ind.App., 164 Ind.App. 331 328 N.E.2d 768.").

In order to prevail on remand, Clark must demonstrate that his attorney's performance was objectively unreasonable, and that but for this performance, there is a reasonable probability that the result would have been different. Strickland v. Washington, 466 U.S. 668, 694 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); United States v. Moya-Gomez, 860 F.2d 706, 763 (7th Cir.1988). Clark's reference to Isaac's testimony in the state court proceedings — and Duckworth's concession that a Dudley violation did occur — are certainly important factors to be considered in determining whether Clark's attorney rendered ineffective assistance at trial. But we leave it to the district court to determine whether these and other factors amount to ineffective assistance of counsel under Strickland.

Clark, 906 F.2d at pps. 1178-79 (emphasis omitted). This court has given very careful attention to the mandate of the Court of Appeals as above quoted, and certainly it is the intention of this court to now consider the issue of ineffective assistance of counsel.

The court appointed superseding counsel for the petitioner, but apparently this petitioner did not want the services of superseding counsel and that counsel has withdrawn. This court has already established a schedule for the presentation of the issue with reference to ineffective assistance of counsel and now in the spirit of Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), this court reexamines the entire record with reference to the issue of ineffective assistance of counsel.

As stated by Judge Cudahy in the aforesaid opinion, the ineffective assistance of counsel issue was presented to the Court of Appeals of Indiana, and the First District of that court, speaking through Judge Robertson in an unpublished memorandum decision concurred in by Chief Judge Ratliff and Judge Neal, entered on November 22, 1988, did indeed deal extensively with that precise issue. For purposes of convenience, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein.

The issue of ineffectiveness of counsel was first presented to the state trial court in postconviction proceedings, as reflected at pages 99-121 of the state court record.

That record is somewhat sparse and generally involves a dialogue among the state trial judge, the deputy public defender, and deputy state prosecutor, in addition to testimony of the petitioner. Trial counsel for the petitioner was not called as a witness by the state public defender. There is nothing in the record to show that the petitioner's trial counsel was not available to testify in postconviction proceedings. On a number of key points, the memory of the petitioner was vague as he testified in that postconviction proceeding.

In sum, the testimony of the petitioner was that Attorney Shaw, the petitioner's defense counsel, did not move for a mistrial when the "threat" testimony came in. That is certainly nothing new. The trial record clearly demonstrated that fact. At the end of the postconviction proceeding at page 121 of the state record, the state trial judge indicated that he would "prepare an opinion". To date, this court has been unable to locate such written opinion in the state record.

In United States v. Grizales, 859 F.2d 442, 447 (7th Cir.1988), Judge Eschbach, speaking for the court stated:

The Supreme Court has instructed that in evaluating the performance of a trial attorney we are to "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 2054. Appellant "has a heavy burden in proving a claim of ineffectiveness of counsel." Jarrett v. United States, 822 F.2d 1438, 1441 (7th Cir.1987) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). The Supreme Court has further cautioned appellate courts to resist the temptation to "second-guess" the actions of trial counsel after conviction. Id. It is clear that the performance of trial counsel should not be deemed constitutionally deficient merely because of a tactical decision made at trial that in hindsight appears not to have been the wisest choice. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; United States v. Kennedy, 797 F.2d 540, 543 (7th Cir.1986).

See also United States v. Adamo, 882 F.2d 1218 (7th Cir.1989).

The Court of Appeals of Indiana found that the performance of the petitioner's trial counsel was not deficient. The court went on to state that even if counsel's performance was deficient, the petitioner had failed to show any resulting harm. State court factual findings made in the course of deciding an ineffectiveness claim are subject to the presumption of correctness standard of 28 U.S.C. § 2254(d). Galowski v. Murphy, 891 F.2d 629, 635 (7th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1953, 109 L.Ed.2d 315 (1990). Section 2254(d) provides that "a determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction ... shall be presumed to be correct" unless "the merits of the factual dispute were not resolved in the state court hearing." Under section 2254(d), the court must defer to the state court's findings regarding the underlying facts of who did what to whom, when, where, and why. Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.1989).

On the other hand, a state court's findings that counsel performed adequately and that any shortcomings in his representation did not prejudice the defendant's case are not findings of fact under section 2254(d), but are instead mixed questions of law and fact subject to independent review. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Balfour v. Haws, 892 F.2d 556, 563 (7th Cir. 1989). The court therefore has made an independent examination of the state court record in order to determine whether counsel rendered effective assistance. See Miller v. Fenton, 474 U.S. at 104, 106 S.Ct. at 445.

As a preliminary, the petitioner bears a heavy burden in establishing an ineffective assistance of counsel claim. United States v. Moya-Gomez, 860 F.2d 706, 763 (7th Cir.1988). He must show (1) that his attorney's representation fell below an objective standard of reasonableness, and (2) that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 668, 104 S.Ct. at 2052. The court's scrutiny of counsel's performance must be conducted with a high degree of deference and without the distorting effects of hindsight. Id. at 689, 104 S.Ct. at 2065.

Here, the petitioner complains that he was...