Houchin v. Zavaras, Civil A. No. 93-K-2651.
| Citation | 919 F. Supp. 1480 |
| Decision Date | 28 March 1996 |
| Docket Number | Civil A. No. 93-K-2651. |
| Parties | William C. HOUCHIN, Jr., Petitioner, v. Aristedes W. ZAVARAS, Director, Colorado Department of Corrections, Respondent. |
| Court | U.S. District Court — District of Colorado |
Jean E. Dubofsky, Boulder, CO, for petitioner.
Wendy J. Ritz, Assistant Attorney General, Denver, CO, for respondent.
Before me is William C. Houchin Jr.'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On January 24, 1986, Houchin was convicted of two counts of first degree murder after deliberation under Colo. Rev.Stat. § 18-3-102(1)(a) (1986) in the District Court, Pueblo County, Colorado and sentenced to two consecutive life terms of imprisonment.
Houchin seeks relief on the grounds that he was denied effective assistance of counsel at his trial in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. He asks that his convictions be vacated and the matter returned to the state district court for further proceedings on the original charges.
I deny the petition.
On March 29, 1984, an information was filed in Pueblo, Colorado, charging Houchin with two counts of murder in the first degree of his father-in-law, Louis D. Naureth, and his mother-in-law, Mary Lou Naureth.
Houchin was initially represented by members of the Colorado State Public Defender's Office located in Pueblo. The public defenders filed numerous pretrial motions, many relating to the death penalty issue. The prosecution advised the court on July 14, 1984 that it would not seek the death penalty.
Late in 1984, Houchin's father, in the course of a real estate matter, met Thomas H. Heaton, a lawyer licensed to practice in Massachusetts and other jurisdictions, but not in Colorado. Houchin's father discussed the case with Heaton and, based on Heaton's representations as to his experience, asked him to represent Houchin. In January 1985, Heaton contacted the Pueblo public defender's office and reviewed the public defender's file. He discussed the case and all proposed defenses extensively with the deputy state public defender Steve Alcala assigned to the case. Heaton accepted the case and was retained by Houchin's father.
Heaton hired co-counsel, Terry Perlet, an attorney from Colorado Springs, Colorado, whose experience with criminal cases began in 1970. He had been a deputy district attorney for four years, became chief trial deputy with the El Paso County District Attorney's Office, and, from 1980 engaged almost exclusively in representing clients in criminal cases. He had tried nearly one hundred felony cases, including approximately ten murder trials, had a particular interest in forensic evidence and had tried a case with issues similar to those presented in Houchin's. Houchin's father agreed to pay Heaton and Perlet $50,000 to represent his son. A private investigator, Robert Brown was hired for the defense. The public defender withdrew and handed over his entire case file to Heaton and Perlet who entered their appearances for Houchin on February 11, 1985.
Heaton and Perlet filed and argued additional pretrial motions on which the court ruled. The jury trial commenced on January 14, 1986. On the eighth day, the jury returned verdicts of guilty on both counts of first degree murder. Houchin was sentenced to two consecutive terms of life imprisonment.
After Houchin filed a pro se appeal, the state court of appeals granted his motion for a limited remand for a hearing in the state district court of his motion for post-conviction relief under Colorado Rule of Criminal Procedure 35(c) based on his claim that he had received ineffective assistance of counsel in violation of the United States and Colorado constitutions.1
Thereafter, the trial court found Houchin indigent and appointed a public defender to represent him on appeal. Subsequently, Houchin's family retained the law firm of Tegtmeier & Sears, P.C. to represent him in his appeal and to investigate his claim of ineffective assistance of counsel.
The Rule 35 proceeding lasted seven days. The state trial court judge, the Honorable Jack F. Seavy, heard the first five days of testimony. On June 1, 1989, the Honorable Richard D. Robb advised the parties that Judge Seavy had died on the previous day.
Judge Robb informed Houchin of his right to have the same judge hear the entire matter and to start anew with the Rule 35 hearing. Alternatively, Judge Robb stated, Houchin could waive that right and allow him to review and consider the transcripts of the hearings to that date, determining the witnesses' credibility from the transcripts, and to go forward with the remainder of the hearing and make the ruling on the Rule 35(c) motion. Houchin expressly elected to go forward with the hearing before Judge Robb and allow him to rule on the motion.
On November 28, 1990, Judge Robb denied Houchin's motion for Rule 35 relief. He determined most of the actions of counsel which Houchin challenged were not outside the range of reasonably competent assistance of counsel but that the following actions were: Perlet's failure to clearly articulate any defenses in his opening statement to the jury or to provide defense theory instructions to the trial court for submission to the jury and failure to spend more time with Houchin preparing him to testify, Heaton's conduct in the courtroom, possibly under the influence of alcohol, and his cross-examination of prosecution witness Ron Miller at trial.
The state district court, nevertheless, found the overall performance of Houchin's counsel was not below the level of reasonably competent assistance to which an accused is constitutionally entitled and that there was no reasonable probability that, but for the deficiencies found by the court, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Accordingly, the state district court denied Houchin's Rule 35(c) motion. People v. Houchin, No. 84 CR 79 (Dist.Ct.Co. Pueblo Nov. 28 1990) ("Houchin I").
Houchin appealed the denial to the Colorado Court of Appeals. The appeals court agreed with the trial court that a number of the errors alleged were not outside the range of reasonably competent performance. However, it agreed that defense counsel's failure to articulate any theory in his opening statement, failure to tender to the trial court for presentation to the jury any instruction on a defense theory, and failure to spend more time with Houchin in preparation of trial testimony were below the range of minimal competence. The appeals court also concluded the outcome of the proceeding would not have been different even with competent performance by counsel.
Contrary to the district court's finding, the state court of appeals found counsel's overall performance was below the level of reasonably competent assistance to which an accused is constitutionally entitled. Even accepting the alleged deficiencies, however, the court found the record failed to establish that, but for such deficiencies, the result of the trial would have been different. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. People v. Houchin, No. 86CA0683 (Colo.App. Aug. 20, 1992), ("Houchin II"). Accordingly, the appeals court affirmed the judgment of the state district court.
Houchin filed a petition for writ of certiorari in the Colorado Supreme Court which was denied on May 24, 1993.
On December 16, 1993, having exhausted the available state court remedies as required under 28 U.S.C. § 2254(b), Houchin filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) in this court on the ground that he is in custody in violation of his rights under the United States Constitution because he was denied effective assistance of counsel at trial.
The case was originally assigned to then Chief Judge Finesilver who issued an order to show cause why the petition should not be granted. Respondent filed an answer to show cause and Houchin replied. The action was reassigned to me on February 17, 1995. Oral argument on the petition was heard on May 31, 1995. This opinion follows.
The following are the facts essentially admitted by both parties. Houchin was married to the Naureths' daughter Linda and living in a basement apartment of the Naureths' home at the time of the murders. On March 17, 1984 Linda told Houchin she wanted a divorce. He then left the Naureth home. Houchin returned the next day when Linda and her mother, Mary Lou ("Mrs. Naureth"), were out and her father, Louis ("Mr. Naureth"), was working on his truck in the garage. At some point, Houchin went to the garage and there was a struggle between him and Mr. Naureth.
Houchin shot Mr. Naureth twice and Houchin was shot once in the arm. Houchin then went to the basement apartment, changed his shirt, picked up a rifle, returned to the garage and again shot Mr. Naureth, who may have already been dead, in the head. Houchin then destroyed furnishings in the house and killed one of the dogs.
When Linda and Mrs. Naureth returned home, Houchin was in the house with a revolver and a rifle. Mrs. Naureth headed for the garage. Linda attempted to restrain Houchin, they struggled for the revolver, Houchin shoved Linda against the wall and she ran across the street for help.
Houchin came through the door from the house into the garage and fired two shots from his revolver. He then left.
Police were called by a neighbor and arrived a short time later. They found Mary Lou had been shot and was on the ground across the street from her home. She died of a single gunshot wound while being treated at the hospital. Mr. Naureth was found dead on the floor of the garage.
Houchin was found asleep on the seat of his pickup truck in LaVeta, Colorado, near his parents' home. He was bleeding from a gunshot wound to his...
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