Coogan v. McCaughtry, 91-1869

• Citation: 958 F.2d 793
• Decision Date: 01 April 1992
• Docket Number: No. 91-1869,91-1869
• Parties: Charles C. COOGAN, Petitioner-Appellant, v. Gary McCAUGHTRY, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 793

958 F.2d 793

Charles C. COOGAN, Petitioner-Appellant, v. Gary McCAUGHTRY, Respondent-Appellee.

No. 91-1869.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 6, 1991.

Decided April 1, 1992.

Michael Tobin, Hudson, Wis. (argued), for petitioner-appellant.

James M. Freimuth, State of Wis., Dept. of Justice, Madison, Wis. (argued), for respondent-appellee.

Before CUMMINGS and RIPPLE, Circuit Judges, and WILL, Senior District Judge. ^*

PER CURIAM.

On April 20, 1979, Charles Coogan shot and killed a bartender and a patron at the Four Corners Tavern in Chippewa Falls, Wisconsin. After a jury trial Coogan was convicted on two counts of first degree murder and two counts of armed robbery. He received two consecutive life sentences for the murder convictions and 10 years for the robbery convictions.

Seven years later, Coogan filed a motion for a new trial alleging that he was denied effective assistance of counsel, that he was entitled to a new trial based on newly discovered evidence, and that fundamental fairness required that he be retried. The state trial court held an evidentiary hearing on these claims and denied the motion on all grounds. The court of appeals affirmed, and the Wisconsin Supreme Court subsequently denied Coogan's petition for review. State v. Coogan, 154 Wis.2d 387, 453 N.W.2d 186, review denied, 454 N.W.2d 806 (1990).

On May 21, 1990, Coogan sought habeas corpus relief in federal district court. He argued that his sixth amendment right to effective assistance of counsel was violated when his attorney failed to present a witness in support of his insanity plea. He also contended that his rights to testify, present witnesses on his behalf and to be tried by a jury were violated when the state court refused to allow him to present evidence at a new trial in support of his claim that he committed his crimes during a flashback to his Vietnam combat experiences. Finally, he argued that fundamental fairness entitled him to a new trial.

Judge Crabb found that Coogan's constitutional rights had not been violated, and rejected all of Coogan's claims for relief. Coogan then filed a notice of appeal, and the district court issued a certificate of probable cause.

After reviewing the parties' briefs and the record, and hearing oral argument, we agree that Coogan's petition for habeas corpus should be denied. Coogan has failed to demonstrate that his counsel's representation at the responsibility phase of his trial was deficient or, even if his attorney's performance was deficient, that his failure to present expert testimony or argument was prejudicial. He has also not shown that the evidence he wishes to introduce at a new trial was not available at the time of his trial or would probably result in an acquittal. In addition, there was ample evidence based on which the state courts could find that Coogan's post-hypnotic recall was unreliable. Finally, Coogan was not denied due process. As noted, denial of his motion for a new trial based on alleged ineffective assistance of counsel and newly discovered evidence was proper. Furthermore, Coogan received adequate assistance from a psychiatrist, Dr. Leigh Roberts. Although Dr. Roberts did not diagnose Coogan as suffering from post-traumatic stress disorder due to his experiences in Vietnam, he did examine Coogan and testified that Coogan suffered from a mental disease.

Because Judge Crabb has thoroughly and completely analyzed Coogan's arguments for relief, and any additional discussion by this court would add little, if anything, we adopt the district court's opinion as the opinion of this court. Judge Crabb's opinion follows in an appendix to this opinion.

AFFIRMED.

APPENDIX

No. 90 C 4118

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BARBARA B. CRABB, District Judge.

This is a petition for a writ of habeas corpus. Petitioner, an inmate at the Waupun Correctional Institution, Waupun, Wisconsin, contends that he is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2254. Petitioner seeks relief on three separate grounds: that he was denied effective assistance of counsel in violation of the Sixth Amendment; that the state court violated his constitutional rights to testify, to call witnesses on his behalf, and to a jury trial when it rejected his motion for a new trial based on newly discovered evidence; and that he is entitled to a new trial on grounds of fundamental fairness. Petitioner has exhausted his state remedies as required under 28 U.S.C. § 2254.

I conclude that petitioner did not receive ineffective representation because his counsel's performance was not deficient. Moreover, even if the representation could be characterized as deficient, petitioner was not prejudiced by it. I conclude also that petitioner's constitutional rights were not abridged by the state court's refusal to grant a new trial in light of new evidence. Some of the proffered evidence was inadmissible, and the rest would not constitute new evidence warranting a retrial. Last, I conclude that petitioner's fundamental fairness claim has no merit. Accordingly, petitioner's request for a writ of habeas corpus will be denied.

In habeas corpus actions, state court findings of fact are presumed correct unless upon consideration of the record as a whole, the federal court concludes that factual determinations are not "fairly supported" by the record. 28 U.S.C. § 2254(d)(8); Burns v. Clusen, 798 F.2d 931, 940 (7th Cir.1986). Petitioner does not object to the accuracy or completeness of the state court findings. Therefore, I adopt the following facts I have paraphrased from the Wisconsin Court of Appeals' decision in State v. Coogan, 154 Wis.2d 387, 453 N.W.2d 186 (Ct.App.1990), supplemented by pertinent facts from the record.

Facts Found by State Courts

Petitioner, a Vietnam war veteran, was convicted of two counts of first-degree murder for killing two men during a 1979 robbery of a Chippewa County, Wisconsin bar. At the time of trial, petitioner claimed to remember little or nothing of the incident.

Evidence at petitioner's trial disclosed the following: on April 20, 1979, petitioner entered the Four Corners Tavern, pointed a gun at the bartender and demanded money. After the bartender told petitioner to get it himself, petitioner shot the bartender in the chest, took money from the cash register, and also shot a patron who moved. Petitioner told the other patrons that he did not wish to harm anyone, but only wanted the money. Before leaving, petitioner said that his armed accomplice was waiting outside and that no one was to exit the bar for ten minutes.

Petitioner left the Four Corners Tavern, and drove to the Lounge Bar, where he was observed buying drinks. Petitioner remarked that he had heard on the police scanner on the way home from work that two people had been shot at the Four Corners. Petitioner does not have a scanner and had not been at work that day. When police arrested petitioner, they found over $273 on his person and a bank slip bearing the name of the murdered bar patron. They also tested petitioner's blood alcohol level and found it to be .21%.

Petitioner was examined by two psychiatrists who testified at trial. During the first, or "guilt" phase of the trial, Dr. Leigh Roberts testified for the defense that he had diagnosed petitioner as having a "borderline personality." ¹ He testified further that when petitioner committed the killings, his intoxication exacerbated his mental disorder to produce a "mini-psychosis."

Roberts expressed the opinion that on the day of the killings petitioner had a substantially reduced ability to form intent.

Dr. Darold Treffert testified for the prosecution at phase one of the trial. He found that petitioner had suffered a blackout as a result of voluntary intoxication on the day of the killings. He described petitioner as having a paranoid personality.

Although most of his testimony had been put before the jury during the guilt phase of the trial, Dr. Roberts was prepared to testify at the second phase of the trial that petitioner had a severe personality disorder which when combined with his alcoholic consumption produced a mini-psychosis during which he could not control his impulses. Petitioner's attorney believed that this testimony did not constitute a legal insanity defense under State v. Kolisnitschenko, 84 Wis.2d 492, 267 N.W.2d 321 (1978). After conferring with Dr. Roberts and petitioner, and examining the applicable law, petitioner's attorney decided not to present any evidence at the responsibility phase. This decision was a reasonable one at the time of the trial.

The jury convicted petitioner of two counts of first-degree murder and two counts of armed robbery. The jury found that he was sane at the time of his crimes. The convictions were affirmed by the appellate court. State v. Coogan, 103 Wis.2d 692, 310 N.W.2d 652 (Ct.App.1981).

While in prison, petitioner began therapy with Dr. Richard Arnesen, a prison psychiatrist who had worked with petitioner in the past. Based on petitioner's description of his wartime experiences and of his memory of the events of April 20, 1979, and his erratic behavior over the years, Dr. Arnesen diagnosed petitioner as suffering from post-traumatic stress disorder. ² Dr. Arnesen's hypnosis sessions with petitioner facilitated petitioner's ability to recall traumatic Vietnam experiences. During these sessions, petitioner related a version of the events at the Four Corners Tavern that, if believed, demonstrated that he was suffering a dissociative flashback episode to Vietnam in which he was searching a suspected enemy hut for Viet Cong guerrillas or documents.

Dr. Arnesen presented his evidence to other psychiatrists, including Dr. Gary Palmer, a psychiatrist with the Veterans Administration and an expert in post-traumatic stress disorder, who concurred in the diagnosis that petitioner...