Deutscher v. Whitley

• Decision Date: 23 March 1988
• Docket Number: No. CV-N-86-445-ECR.,CV-N-86-445-ECR.
• Citation: 682 F. Supp. 1098
• Parties: Henry DEUTSCHER, Petitioner, v. Harol WHITLEY, Warden of the Nevada State Prison; and Brian McKay, Attorney General of the State of Nevada, Respondents.
• Court: U.S. District Court — District of Nevada

682 F. Supp. 1098

Henry DEUTSCHER, Petitioner, v. Harol WHITLEY, Warden of the Nevada State Prison; and Brian McKay, Attorney General of the State of Nevada, Respondents.

No. CV-N-86-445-ECR.

United States District Court, D. Nevada.

March 23, 1988.

Greg Costello by David J. Burman, Stephen R. Illa and Perkins Coie, Seattle, Wash., and Thomas E. Perkins, Carson City, Nev., for petitioner.

Brian McKay, Atty. Gen. by Brian Hutchins, Carson City, Nev., and Robert J. Miller, Clark County Dist. Atty. by James Tufteland, Deputy, Las Vegas, Nev., for respondents.

ORDER

EDWARD C. REED, Jr., Chief Judge.

The Court, by its order of December 17, 1987, ordered that an evidentiary hearing be held with respect to the ineffective assistance of counsel claims in count one of this petition. The hearing was held on January 6, 1988, at which time the Court received evidence and argument relating to Public Defender Ahlswede's representation of the petitioner at the murder trial in 1977. In order to set these issues in their proper temporal framework, it is necessary to review the complete history of this case.

The petitioner was convicted of murder and sentenced to death in Clark County, Nevada, in November 1977. His attorney at that time was Public Defender Ahlswede. Ahlswede appealed the petitioner's conviction directly to the Nevada Supreme Court, but that court affirmed the conviction in October, 1979. Ahlswede then petitioned the United States District Court on behalf of his client for a federal writ of habeas corpus in January, 1980, but that petition was dismissed, apparently for failure to exhaust all state remedies.

The petitioner then returned to the state system to exhaust. A post-conviction petition was filed in June, 1980, and dismissed shortly thereafter. The state supreme court affirmed this dismissal in July, 1981. The petitioner then sought a federal writ of habeas corpus in August, 1982. Judge Foley reached the merits of that petition, and found that there was no basis for relief contained therein. Petitioner appealed this decision to the Ninth Circuit. At this time, Mr. Ahlswede ceased to represent the petitioner, and current counsel substituted in. Counsel immediately attempted to amend the petition before the Ninth Circuit to include all the claims in the present petition. This request was denied, ostensibly because these added claims were unexhausted in the state system. The Ninth Circuit affirmed Judge Foley's order of dismissal.

The petitioner and his counsel then returned to the state system again. In May, 1983, they filed a new post-conviction petition, which contained, among other things, claims that Ahlswede's representation of the petitioner at the trial level had fallen below the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This petition was amended in May, 1985, and ultimately denied in November of that year. The state supreme court upheld that order in September, 1986.

The petitioner then set his sights on the federal system once again, and filed a second petition for the writ of habeas corpus in September, 1986. The state argued strenuously that the claims presented in that second petition were barred by the doctrine of procedural default, as they had not been presented properly to the state courts. The state courts had indeed refused to consider the merits of the claims for that failure. Because the procedural default argument seemed to have merit, the Court held an evidentiary hearing on the issue of procedural default and the existence of cause and prejudice on May 11, 1987. The main thrust of the petitioner's argument was that his counsel, Mr. Ahlswede, was ineffective in his failure to raise the claims, and that cause and prejudice had therefore been established. (It is important to note that ineffective assistance of counsel was debated at the first evidentiary hearing purely as a means of establishing cause and prejudice, and not as a substantive habeas corpus count.)

As a result of that evidentiary hearing, the Court issued an order on June 25, 1987, in which it found that the petitioner had not established cause and prejudice, as he had not shown that his attorney had been defective in failing to raise the issues presented in counts 2, 3, 5, 6, 7, 9, and 10 of the current petition. These claims were found subject to the procedural default rule, and were dismissed from the petition. The Court did find that former counsel had rendered insufficient assistance for Strickland purposes on count 8. This claim was allowed to remain in the petition. Counts 1 and 4 were never the potential subject of the procedural default, as they had been raised properly in the state courts. Of the original counts in the petition, therefore, only counts 1, 4, and 8 remain.

COUNT ONE/INEFFECTIVE ASSISTANCE OF COUNSEL

This count contains eleven separate claims for relief, all of which must be addressed separately. The petitioner contends that his attorney's assistance fell below the reasonableness standard in Strickland, as he (1) failed to challenge the constitutionality of the torture/depravity of mind instruction (count 1(d) of the petition); (2) failed to challenge the penalty phase burden of proof instruction (count 1(e)); (3) failed to challenge the lack of scienter in finding the petitioner eligible for the death penalty (count 1(f)); (4) failed to object to the introduction of hearsay and character evidence at the penalty phase (count 1(g)); (5) failed to object to prosecutor's misstatements with respect to mitigating circumstances (count 1(h)); (6) failed to object to the "doubling up" of aggravating circumstances (count 1(i)); (7) failed to present a penalty phase defense (count 1(j)); (8) failed to introduce evidence of insanity at the guilt phase, where psychiatric testimony would have indicated the petitioner's mental illness (count 1(k)); (9) failed to call the petitioner at the guilt phase (count 1(1)); (10) failed to investigate the petitioner's past psychiatric history (count 1(m)); and (11) conceded the petitioner's guilt at the penalty phase and argued that the aggravating circumstances presented were not subject to dispute (count 1(n)).

COUNTS 1(e), 1(f), 1(g), 1(h), and 1(i)

The Court notes, however, that it has already decided that Mr. Ahlswede's representation did not fall below the Strickland standard with respect to counts 1(e), 1(f), 1(g), 1(h), and 1(i) listed above. These five counts were also named as independent substantive bases for relief in the petition. Thus, for example, while count 1(d) alleges that counsel was ineffective for failing to challenge the burden of proof at the penalty phase, count six alleges that the burden of proof instruction used by the count was unconstitutional. Yet count six was subject to procedural default, and the petitioner attempted to defend against this rule by showing that counsel was ineffective for failing to raise that claim. The Court decided, as described above, that there was no ineffective assistance of counsel in failing to raise count six. Inasmuch as the standard for establishing attorney ineffectiveness for cause and prejudice is also the Strickland test, the Court has already decided the ineffectiveness issue in count 1(e). See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel count 1(f) similarly corresponds with count 2, count 1(g) with count 10, count 1(h) with count 3, and count 1(i) with count 5. As these issues have been decided by the Court's previous order, that order is law of the case with respect to them, and the issues may not be relitigated here.

COUNT 1(d)

This ineffective assistance of counsel count is similarly related to count 4 of the petition, Count four, however, was not the subject of a procedural default count, and the Court has therefore not made any rulings with respect to counsel's performance. Because this count is so strongly tied with count 4, it does seem logical to delay decision until consideration of count 4, as the prejudice plank of the Strickland test requires the same inquiry as will count 4.

COUNT 1(j)

In this count, the petitioner argues that Ahlswede's representation fell below the Strickland standards when he failed to put on any penalty phase defense. Review of the record indicates that Ahlswede did not call any witness or introduce any independent evidence at the penalty phase. He did, however, cross-examine all prosecution witnesses, and did make a closing argument to the jury. Thus, to state that he failed to put on any penalty phase defense whatsoever is not entirely correct. The question, more aptly put, is whether he failed in his duties under Strickland by not introducing any evidence of his own.

This issue is easily laid to rest. As the Eighth Circuit has recently noted

The fact that mitigating evidence is not set forth does not inexorably lead to a conclusion of ineffective counsel. One must look further as to why the mitigating evidence was not produced. If counsel has through neglect failed to discover such evidence, then counsel will be found ineffective. If, however, the mitigating evidence is not produced because counsel, after reasonable investigation and exercise of professional judgment, has determined that withholding of such evidence is the more strategically sound course, then there has been no ineffectiveness.

Laws v. Armontrout, 834 F.2d 1401, 1410 (8th Cir.1987); see also Campbell v. Kincheloe, 829 F.2d 1453, 1462 (9th Cir.1987). That the petitioner's attorney did not introduce any evidence at the penalty phase in this case is not of itself a basis for habeas relief. The relevant inquiry focuses upon the reasons that attorney had in not producing any such evidence. Counts 1(k) and 1(m) allege that Ahlswede ignored evidence vital to the effective penalty phase defense of his client without substantial reason for doing so. Count 1(j) will...