Foell v. Mathes, C02-3029-MWB.

• Decision Date: 19 March 2004
• Docket Number: No. C02-3029-MWB.,C02-3029-MWB.
• Citation: 310 F.Supp.2d 1020
• Parties: David FOELL, Petitioner, v. John MATHES, Warden, Iowa State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of Iowa

310 F.Supp.2d 1020

David FOELL, Petitioner, v. John MATHES, Warden, Iowa State Penitentiary, Respondent.

No. C02-3029-MWB.

United States District Court, N.D. Iowa, Central Division.

March 19, 2004.

COPYRIGHT MATERIAL OMITTED

David Foell, Fort Madison, IA, pro se.

Mark C. Meyer, Kinnamon-Kinnamon-Russo-Meyer, Cedar Rapids, IA, for Plaintiff.

Thomas W. Andrews, Des Moines, IA, for Defendant.

ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION ON PETITIONER'S WRIT OF HABEAS CORPUS

BENNETT, Chief Judge.

TABLE OF CONTENTS

                I. INTRODUCTION ................................................................. 1023
                   A. Procedural Background ..................................................... 1023
                   B. Factual Background ........................................................ 1024
                   C. Decisions Below ........................................................... 1031
                

                1. Direct appeal .......................................................... 1031
                      2. Post-conviction relief application hearing ............................. 1032
                      3. Appeal of denial of post-conviction relief application ................. 1032
                II. LEGAL ANALYSIS .............................................................. 1033
                    A. Standard Of Review ....................................................... 1033
                    B. Objections To Findings of Fact ........................................... 1033
                       1. Timeliness and content of reports on petitioner's mental condition .... 1033
                          a. Report of psychiatric social worker Jim Anderson ................... 1034
                          b. Report of psychiatrist Dr. Greg Roberts ............................ 1034
                          c. Report of psychologist Kenneth P. Schmitz .......................... 1034
                          d. Letter from Dr. Roberts to Mr. Byrne ............................... 1036
                          e. Timeline ........................................................... 1036
                       2. Factual finding of intent to kill by state court ...................... 1037
                       3. Evidence that could have bolstered an intoxication defense ............ 1039
                       4. Counsel's reasons for calling petitioner as a witness at trial ........ 1039
                    C. Objections To Legal Conclusions .......................................... 1040
                       1. General standards for 2254 relief ..................................... 1040
                       2. Standards for ineffective assistance of counsel claims ................ 1041
                          a. Foell's objections ................................................. 1042
                          b. Magistrate's conclusions ........................................... 1042
                          c. Analysis ........................................................... 1042
                              i. Appreciation of a diminished responsibility defense ............ 1043
                             ii. Untimely investigation ......................................... 1048
                            iii. Counsel unreasonably persuaded Foell to abandon a
                mental defense ............................................... 1048
                             iv. Trial counsel presented no valid defense ....................... 1049
                       3. Constructive denial of counsel ........................................ 1050
                    D. Certificate of Appealability ............................................. 1050
                III. CONCLUSION ................................................................. 1050
                

I. INTRODUCTION

A. Procedural Background

On May 1, 1992, petitioner David Foell ("Foell") was found guilty of first-degree Murder following a jury trial in the Iowa District Court for Bremer County.¹ On June 5, 1992, Foell was sentenced to life in prison. Foell appealed his conviction and sought reversal of his conviction on two grounds: (1) the trial court erred in denying his motion to suppress statements he made to police; and (2) that he was denied effective assistance of counsel.² The Iowa Court of Appeals considered the matter and affirmed Foell's First Degree Murder conviction on December 29, 1993. State v. Foell, 512 N.W.2d 809 (Iowa Ct.App.1993). Foell's appeal of the Iowa Court of Appeal's decision was summarily denied by the Iowa Supreme Court on March 9, 1994. Subsequently, Foell filed an Application for Post-Conviction Relief ("PCR") with the Iowa District Court for Franklin County on the grounds that he was not provided with effective assistance of counsel in several respects. A trial on Foell's PCR application was held on May 5, 1999. Following the trial, the Franklin County District Court concluded that Foell had failed to establish ineffective assistance of counsel and overruled and denied his PCR Application in every respect. Foell v. State, No. PCCV002644 (Franklin County District Court Aug. 11, 2000). Foell appealed the disposition of his PCR Application. On December 28, 2001, the Iowa Court of Appeals affirmed the Franklin County District Court's denial of Foell's PCR Application. Foell v. State, No. 00-1536, 2001 WL 1658885 (Iowa App. Dec.28, 2001).

On April 9, 2002, Foell filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Southern District of Iowa. On April 19, 2002, the case was transferred to this district. On May 31, 2002, the case was referred to United States Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B). Petitioner filed his Brief in Support of Application for Relief Pursuant to 28 U.S.C. § 2254 on September 13, 2002. (Doc. No. 10). Respondent John Mathes ("Mathes"), the Warden of the Iowa State Penitentiary, filed a responsive brief on the merits on October 29, 2002 (Doc. No. 11), and an Appendix of Decisions on October 30, 2002. (Doc. No. 12). Mathes submitted additional supplemental materials on November 6, 2002. (Doc. No. 13). On December 13, 2002, Foell filed a reply brief. (Doc. No. 14). Mathes filed a response to Foell's reply on December 20, 2002. (Doc. No. 15). On January 2, 2003, Foell filed an addendum to his reply brief. (Doc. No. 16). On February 3, 2003, Mathes filed a Citation of Supplemental Authority in order to alert the court to a potentially pertinent decision of the Eighth Circuit Court of Appeals which came down on January 29, 2003. (Doc. No. 17). Likewise, Foell filed a response to Mathes's submission of supplemental authority on March 6, 2003. (Doc. No. 18). On February 6, 2004, Judge Zoss filed a Report and Recommendation in which he recommends that Foell's writ of habeas corpus be denied and that a certificate of appealability not be issued. (Doc. No. 19). On February 16, 2004, Foell filed his objections to Judge Zoss's legal conclusions in his Report and Recommendation. (Doc. No. 20). The court, therefore, undertakes the necessary review of Judge Zoss's recommended disposition of Foell's petition for a writ of habeas corpus.

B. Factual Background

In his Report and Recommendation, Judge Zoss made the following findings of fact:

On December 8, 1991, Foell was introduced to an individual named Chris Oltman by a mutual acquaintance, Mark Torres. Foell rode around with Oltman, his girlfriend Jennifer Frank, and Torres, as they went to a friend's home, a couple of fast food restaurants, a Target store, and other locations. Eventually, the four drove to Sheffield, Iowa, to the home of Oltman's grandmother, Marian Atkinson. Before going to Ms. Atkinson's residence, they stopped at a gas station where Foell, who was the only one of the four over twenty-one, bought four quarts of beer. During the evening, and during the drive to Sheffield, Oltman and Torres had conversations about Torres killing Ms. Atkinson that night. Apparently, Ms. Atkinson disapproved of the relationship between Oltman and Frank, and she intended to cut Oltman out of her will. Consequently, Oltman offered to pay Torres and Foell to kill his grandmother.

When the group arrived at Ms. Atkinson's residence, Oltman went inside to talk to his grandmother, while the other three individuals remained outside in the car. Frank testified that while Oltman was inside the residence, Torres and Foell discussed how they were going to kill Ms. Atkinson. When Oltman left his grandmother's residence, he left the garage door unlocked. He told Foell and Torres he had left the back door unlocked for them. He also told them where they could find a knife in Ms. Atkinson's kitchen, and gave them directions to her upstairs bedroom.

Foell and the other individuals went back to Mason City, Iowa, and visited an individual named Jake Frank, Jr. While they were at Jake's residence, Foell and Torres told Jake about their plans to return to Sheffield to kill Ms. Atkinson. When they left Jake's house, the others dropped Torres off at his residence, and Foell, Oltman, and Jennifer Frank left together. Later, in the early morning hours of December 9, 1991, Foell, Oltman, and Jennifer Frank were out driving near a gravel pit in Mason City, when their car became stuck. A police officer gave them a ride to a telephone at approximately 1:45 a.m., so they could call a tow truck. At approximately 2:20 a.m., Foell called Broome's Wrecker Service in Mason City. Mr. Broome testified he talked with Foell for about three minutes, during which Foell told him the car was stuck out at the gravel pit and they needed a tow. Broome stated Foell sounded "pretty excited" or "desperate," but he seemed rational and his speech was not slurred, loud, or too fast. He stated Foell mentioned he needed to get to Sheffield.

Broome dispatched a driver, Dean Porter, to meet Foell and the others at a Kum & Go station. Porter talked with Foell about payment for the tow, and he testified Foell was "antsy" or nervous, but did not appear to be intoxicated. He stated Foell had no difficulty standing, walking, or getting into the tow truck, and he did not smell of alcohol. Porter further stated he was inside Oltman's car briefly when he was hooking up the car to be towed, and he did not smell alcohol inside the car.

After Oltman's car was towed out of the gravel pit, Foell, Oltman, and Frank went back to...