Dows v. Wood, 99-35625

Decision Date27 April 2000
Docket NumberNo. 99-35625,99-35625
Parties(9th Cir. 2000) KENNETH PAUL DOWS, Petitioner-Appellant, v. TANA WOOD, Respondent-Appellee
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted] COUNSEL: Patricia S. Novotny, Seattle, Washington, for the petitionerappellant.

John J. Samson, Assistant Attorney General, Olympia, Washington, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-98-01016-RSL

Before: Stephen S. Trott, Andrew J. Kleinfeld, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Trott

TROTT, Circuit Judge:

Kenneth P. Dows ("Dows"), a Washington prisoner convicted of first-degree rape, appeals from the district court's denial of his 28 U.S.C. S 2254 petition for a writ of habeas corpus. Dows argues that his attorney, Robert Egger ("Egger"), was ineffective because Egger was allegedly suffering from the effects of Alzheimer's disease at the time of Dows's trial. Dows claims that Egger was ineffective "per se" because of the disease and, alternatively, that Egger's performance at trial was deficient in several respects which resulted in actual prejudice to Dows. This court has jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253, and we AFFIRM.


Kenneth Dows was convicted by a jury in Washington state court for the first-degree rape of a woman, M.A. Dows was represented at trial by Robert Egger, who, eighteen months after the trial, was diagnosed with advanced Alzheimer's disease. The facts leading up to Dows's conviction and Egger's subsequent medical diagnosis are as follows1

On the night of June 30, 1990, M.A. attended a Charlie Musselwhite concert at a Washington bar called the Ballard Firehouse. At approximately 12:30 a.m., M.A. saw a man showing pictures of himself with Musselwhite to other concert attendees. After this photo display, the man tried to play with Musselwhite's band, and when his request was unsuccessful, he gave Musselwhite his name, address, and phone number. The man left the bar before the concert ended.

When the concert was over, M.A. walked outside. Soon thereafter, she saw the same man who had tried to play with Musselwhite's band sitting in a large maroon car. The man offered M.A. a ride. She declined and walked away. While M.A. was looking for her car, the man drove by again. Minutes later, this same man appeared on foot and put his arm around M.A. When M.A. rebuffed his advances, the man held a knife to her ribs, beat, and raped her repeatedly.

M.A. told the police that she had seen her attacker showing photographs of himself and Musselwhite at the Musselwhite concert. She described the rapist as a slender man who was approximately 5'5" tall. In addition, M.A., a portrait artist, drew a sketch depicting the rapist with blond hair and a bush beard. When interviewed, Musselwhite informed the police that the man with the photographs had been Dows. M.A. later identified Dows in a photomontage. The state charged Dows with first-degree rape with a deadly weapon.

Dows's trial was set for January 6, 1992. Originally, Dows was represented by appointed counsel, Anne Harper, who withdrew on January 3, 1992, when Dows retained Egger. On the first day of trial, although he had only three days to prepare, Egger stated that he was ready to proceed. Before trial, Egger made several pre-trial motions, including a motion to exclude any reference to "mugshots" used to identify Dows in the photomontage and a request that the state not reveal to the jury that Dows had previously been incarcerated. Egger also stated that Dows would not take the stand.

At trial, Egger cross-examined M.A. Because the defense theory was mistaken identity, Egger's questions focused primarily on various inconsistencies in M.A.'s statements, such as the color of the rapist's car and the fact that Dows is 5'10" tall, not 5'5" as M.A. originally told law enforcement.

In addition to M.A., the state called six other witnesses to testify. Egger waived cross-examination of all but one of the witnesses, John Baptiste, who was a promoter at the concert venue where M.A. was raped. During the cross-examination of Baptiste, Egger was able to elicit admissions that there may have been a number of men who looked like Dows at the concert. Egger was also successful in getting Baptiste to admit that he could not positively identify Dows as definitely being at the concert.

After the state rested, Egger called Dows's sister, mother, and brother to testify. These witnesses provided potential alibis for Dows on the day and evening of the alleged rape. Egger also called Anne Harper, Dows's appointed counsel before Dows hired Egger, who testified about an interview she conducted with M.A. during which M.A. had confused details of her recent rape with a prior rape in 1978.

After a three-day trial, the jury convicted Dows of first degree rape with a deadly weapon. One month later, Egger brought a motion for a new trial based on a statement by M.A. to the prosecutor that she had not immediately recognized Dows at trial. This motion was denied when M.A. assured the court that she recognized Dows by the time she identified him in court. Egger then filed a notice of appeal on Dows's behalf.

In June 1993, almost eighteen months after Dows's trial, two superior court judges in the county where Egger practiced law wrote letters to the Washington State Bar expressing concern over Egger's declining courtroom performance. One judge stated that over the previous few months, Egger appeared confused and slow. On July 2, 1993, Dr. Brad Thomas diagnosed Egger as suffering from Alzheimer's disease. This diagnosis was confirmed by two other medical professionals, Dr. Steven Hamilton, and a psychologist, Dr. Susan McCurry. Dr. Thomas stated that, in his opinion, Egger's ability to be an effective attorney would probably have been affected in January 1992 during Dows's trial. By the end of 1993, Egger's dementia and memory loss were readily apparent, and his daughter, Kelly Egger, had been appointed as his legal guardian. Egger died eighteen months after being diagnosed with Alzheimer's disease, three years after Dows's trial.

Previously, in early September of 1993, Egger realized that he could no longer handle Dows's appeal, and an attorney from the Washington Appellate Defenders Association took over the case. On January 6, 1994, the Washington Court of Appeals granted Dows's motion to stay the appeal in order for him to argue a motion for a new trial in the superior court based upon the newly discovered information regarding Egger's illness. The motion for a new trial was heard by Judge Martinez, the same judge who presided at Dows's original rape trial and sentencing. After reviewing the trial transcripts, Judge Martinez denied the motion for a new trial, concluding in an extensive order that, as a factual matter, Dows had failed to establish any significant deficiencies in Egger's trial performance.

Dows appealed the denial of the motion to the Washington Court of Appeals, which affirmed the superior court. The Washington Supreme Court denied Dows's petition for review.

In July 1998, Dows filed this petition for a writ of habeas corpus in the district court. Adopting the report and recommendation of a magistrate judge, the district court concluded that the Washington state trial and appellate courts correctly decided that Egger was not ineffective. The district court denied the petition for habeas corpus, and Dows appeals.

A. Standard of Review

A district court's decision to grant or deny a petition for habeas corpus under 28 U.S.C. S 2254 is reviewed de novo. McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999).

Because Dows's petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the AEDPA's provisions apply. See Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en banc). Under the AEDPA, habeas relief can be granted only when the state court adjudication of the merits of a claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. S 2254(d) (1999). This limited scope of review controls in this case.

B. Ineffective Assistance of Counsel

The Sixth Amendment, as applicable to the states through the Fourteenth Amendment, entitles an accused to the effective assistance of counsel at trial. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) ("[T]he right to counsel is the right to the effective assistance of counsel."). Ineffective assistance of counsel claims are analyzed under the framework set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which is considered in this circuit to be "clearly established Federal law, as determined by the Supreme Court of the United States" for purposes of 28 U.S.C. S 2254(d) review. Canales v. Roe , 151 F.3d 1226, 1229 n.2 (9th Cir. 1998).

Under Strickland, we evaluate (1) whether counsel's conduct was deficient -i.e seen objectively, was out of "the wide range of professionally competent assistance " and, if so, (2) whether it was prejudicial to the defendant -i.e., was there a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 691, 694; see also Smith v. Robbins, 120 S. Ct. 746, 764 (1999). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

1. Prejudice Per Se

Dows's first argument on appeal is that Egger was per se...

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