Gillette v. Tansy
| Citation | 17 F.3d 308 |
| Decision Date | 14 February 1994 |
| Docket Number | No. 92-2186,92-2186 |
| Parties | Ronald Edward GILLETTE, Petitioner-Appellant, v. Robert J. TANSY and Attorney General of the State of New Mexico, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, New Mexico, for Petitioner-Appellant.
Tom Udall, Attorney General, Gail MacQuesten, Assistant Attorney General, Santa Fe, New Mexico, for Respondents-Appellees.
Before SEYMOUR and EBEL, Circuit Judges, and THOMPSON, * District Judge.
Petitioner was convicted of sixteen counts of criminal sexual penetration (CSP) in the second degree, five counts of attempted murder, and one count each of arson, burglary, and contributing to the delinquency of a minor. The facts surrounding these convictions are presented in State v. Gillette, 102 N.M. 695, 698-99, 699 P.2d 626, 629-30 (Ct.App.1985). Briefly, the CSP and contributing to the delinquency of a minor convictions involved a young male in a family with whom defendant lived. The arson and burglary convictions related to the family's home after defendant moved out. Two of the attempted murder convictions arose out of the arson and were attempts against the CSP victim's mother and brother. The other three attempted murder convictions involved the attempted poisoning of the mother and her two coworkers.
Petitioner is currently serving a twenty-seven year sentence in the New Mexico penitentiary. He filed a petition for a writ of habeas corpus alleging that his trial counsel provided ineffective assistance. Following the evidentiary hearing and briefing on the ineffective counsel claims, petitioner filed a motion to amend his petition to allege an insufficiency of the evidence claim. He later filed a motion to supplement the record with a letter written by the CSP victim.
The magistrate judge denied both of petitioner's motions. Adopting the magistrate judge's proposed findings and recommendations, the district court determined that petitioner's counsel was effective and dismissed the petition. Petitioner appeals the denial of his two motions and dismissal of his petition. 1 Petitioner's appointed counsel filed briefs on his behalf. We granted petitioner leave to file a separate pro se brief to raise issues that petitioner's counsel stated he could not raise. Cf. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400-01, 18 L.Ed.2d 493 (1967). We have considered the arguments raised by both petitioner and his counsel.
We first address the merits of petitioner's ineffective counsel claims. Petitioner contends his counsel was ineffective in the following four ways:
(a) Failure to investigate, object to and/or present evidence concerning the purchase and supposed use of Coleman fuel by the defendant to commit arson and attempted murder;
(b) Failure to investigate, object to and/or present evidence concerning the supposed use of sodium pentobarbital by the defendant to commit attempted murder;
(c) Failure to object to the use of defective jury instructions for the sixteen (16) counts of criminal sexual penetration;
(d) Failure to investigate, object to and/or present evidence concerning the lack of proof of the essential element of coercion in each of sixteen (16) sexual penetration counts.
Appellant's Br. at 17-18. The district court determined that these alleged errors were best characterized as trial tactics and strategy and that they did not constitute ineffective assistance.
To prove his ineffective assistance of counsel claim, petitioner has the burden of showing both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir.1993). The first prong of this test can be established by showing that the attorney's advice was not within the wide range of competence demanded of attorneys in criminal cases. Laycock v. New Mexico, 880 F.2d 1184, 1187 (10th Cir.1989) (citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985)). "The proper standard for measuring attorney performance is reasonably effective assistance." Id. Moreover, a court's review of that performance must be highly deferential:
It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case.
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations and quotation omitted).
We note at the outset that petitioner's counsel was an experienced former prosecutor and defense attorney who had handled numerous felony jury trials including murder, sex offender, and arson cases. See United States v. Miller, 907 F.2d 994, 1001 (10th Cir.1990) (). We agree with the district court that counsel was effective and that the challenged action, discussed below, may be considered sound trial strategy.
The prosecution presented evidence that, just prior to the arson, petitioner had purchased Coleman fuel from a convenience store near the arsoned residence and that Coleman fuel had been used as the accelerant for the fire. A convenience store employee testified that he sold petitioner the fuel. He recalled the sale because it was very rare that the store sold Coleman fuel, and he recognized petitioner from his former duties as an armored car courier serving the store. Petitioner contends that his counsel should have subpoenaed the store's cash register receipts and inventory records. He contends these records would have shown that the store did not sell any fuel around the time in question, and this information could have been used to impeach the employee.
Petitioner's counsel interviewed the employee prior to trial and knew the employee would identify petitioner. On cross-examination at trial, counsel tried to impeach the employee with questions concerning the animosity between the employee and petitioner due to petitioner's allegations that the employee had been stealing from the store. Notwithstanding any doubt as to whether the store records were available and would contain the information petitioner contends, we do not view counsel's choice of means to impeach the employee as ineffective.
An expert witness for the prosecution testified that she identified Coleman fuel on a towel and in a Coleman fuel can found at the arson scene. Petitioner claims that his research from prison showed that the exact formula of Coleman fuel was a trade secret and that it would be very unlikely that the expert could identify the samples as Coleman fuel as opposed to other similar fuels. He claims that counsel was ineffective for failing to investigate this fact himself and challenge the expert's testimony. We disagree. Counsel did cross-examine the expert on how she knew the fuel was Coleman fuel rather than some other type. The expert explained that she maintained known samples of a variety of fuels and that the gas chromatograph tests she ran compared the evidence with known samples of Coleman fuel. Considering the type of tests the expert performed, the precise formula for Coleman fuel was irrelevant. Thus, this topic would not have been a fruitful area to explore on cross-examination of the expert.
Petitioner was convicted of attempted murder for placing pentobarbital in a can of Dr. Pepper that was delivered to the hospital where the CSP victim's mother worked and was drunk by the mother and two coworkers. Petitioner worked at an animal shelter in which pentobarbital was used. Petitioner claims that his counsel failed to present evidence that pentobarbital was widely available in a variety of forms, that it was available at the hospital where the mother worked, and that there were other individuals who had access to the drug and a motive to kill the mother. Counsel's failure to present this evidence, he contends, left the jury with the impression that the only source of pentobarbital was the shelter where petitioner worked. He also claims that counsel should have impeached the testimony of a witness who testified that pentobarbital was used in lethal injections for capital punishment, because his research showed this not to be true.
Counsel unsuccessfully moved to preclude testimony by the state expert who identified the pentobarbital. The basis for this motion was that the testing consumed all of the Dr. Pepper and pentobarbital. There was therefore no drug available for the defense to test and show that the form of pentobarbital available to petitioner was different from that in the Dr. Pepper can. Counsel elicited testimony from the expert that there was a test that could have identified certain properties of the pentobarbital to which petitioner had access as opposed to other forms of the drug. The expert also testified that pentobarbital was available for a variety of purposes and that pharmacists had access to it. Counsel presented other evidence showing that the...
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