Koch v. Puckett

• Decision Date: 02 August 1990
• Docket Number: No. 88-4898,88-4898
• Citation: 907 F.2d 524
• Parties: James D. KOCH, Petitioner-Appellant, v. Steve W. PUCKETT, Superintendent of Mississippi State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 524

907 F.2d 524

James D. KOCH, Petitioner-Appellant, v. Steve W. PUCKETT, Superintendent of Mississippi State

Penitentiary, Respondent-Appellee.

No. 88-4898.

United States Court of Appeals, Fifth Circuit.

Aug. 2, 1990.

James D. Koch, pro se.

JoAnne M. McLeod, Asst. Atty. Gen., Mike Moore, Atty. Gen., Henry C. Clay, III, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, GARWOOD and DUHE, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant James D. Koch (Koch) appeals the district court's denial of his petition for writ of habeas corpus challenging his Mississippi murder conviction. We affirm.

Facts and Proceedings Below

Koch was convicted by a Mississippi state jury of murder and sentenced to life imprisonment. Upholding his conviction on direct appeal, where he was represented by his trial counsel, the Mississippi Supreme Court held, inter alia, that the evidence presented at trial was sufficient to support the jury verdict and that the trial court properly admitted rebuttal testimony as to Koch's prior violent threat against the victim. The evidence presented at trial, as well as other grounds raised on direct appeal, is set forth in detail in Koch v. State, 506 So.2d 269 (Miss.1987). In state collateral proceedings, the Mississippi Supreme Court denied, without conducting an evidentiary hearing or rendering a written opinion, Koch's pro se application for leave to file for post-conviction relief on the following four grounds: (1) ineffective assistance of counsel; (2) counsel conflict of interest- ; (3) perjured testimony of three government witnesses; and (4) prosecutorial misconduct. ¹

Koch filed a pro se petition for writ of habeas corpus with the United States District Court for the Southern District of Mississippi, alleging the same four grounds enumerated in his state collateral proceeding. See 28 U.S.C. Sec. 2254. The court referred Koch's petition to a magistrate. Following cross-motions for summary judgment, the magistrate, without conducting an evidentiary hearing, recommended that Koch's habeas petition be denied. Because Koch had not raised any of the claims asserted in his section 2254 petition on direct state appeal, the magistrate found that Koch's perjured testimony and prosecutorial misconduct claims were procedurally barred on an adequate and independent state ground. See Miss.Code Ann. Secs. 99-39-3(2), 99-39-21 (Supp.1989) (procedural waiver of claims not raised on direct appeal absent showing of cause and actual prejudice). The magistrate also noted that the prosecutorial misconduct claim was frivolous and without merit. The magistrate was persuaded by the trial record that Koch failed to satisfy either the performance or prejudice prongs of his ineffective assistance claim and that no evidence supported his conclusory claim of conflict of interest. Koch filed written objections to the magistrate's recommendation, requesting, inter alia, an evidentiary hearing on his claims.

Because of a clerical error, Koch's habeas petition was referred to a second magistrate, who determined that summary judgment was inappropriate because of the existence of a genuine issue of material fact as to whether Koch's trial counsel provided effective assistance. Adopting the recommendation of the first magistrate, the district court denied Koch's habeas petition. The court noted that the record was sufficient to determine the validity of the claims raised by Koch so that an evidentiary hearing was unnecessary. This appeal followed. ²

Discussion

Koch's primary contention is that his trial counsel failed to provide constitutionally effective assistance as a matter of law. The elements of such a claim of ineffective assistance were set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. 104 S.Ct. at 2064.

A defendant's Strickland claim fails if either of these two prongs are not satisfied. See id. at 2069.

In order to satisfy the performance prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 2065. As the Court in Strickland warned, however,

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.... 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." Id.

Even if the defendant shows that particular actions of counsel were unprofessional and unreasonable, the defendant must also

"show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.... The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision." Id. at 2068.

Koch sets forth a plethora of instances of assertedly poor performance by his trial counsel. The district court, however, adopted the recommendation of the first magistrate, who concluded that Koch's counsel rendered reasonably effective assistance. The court noted that the trial record was sufficient for resolution of this issue. A determination as to the effectiveness of counsel's assistance involves a mixed question of law and fact. See Strickland, 104 S.Ct. at 2070. Thus, we review the district court's ultimate conclusion as to counsel's effectiveness de novo. See Buxton v. Lynaugh, 879 F.2d 140, 147 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990). Accord Nunnemaker v. Ylst, 896 F.2d 1200, 1202 (9th Cir.1990).

In essence, Koch claims that his counsel did not conduct the trial based on a clear self-defense strategy. Ultimately, the jury's determination came down to a credibility choice--whether to believe Koch's testimony at trial, or that of the local sheriff and two of his investigators who testified as to certain seemingly inculpatory statements made by Koch shortly after the shooting in question. Koch asserts, for example, that his trial counsel should have made appropriate motions or objections in order to suppress these inculpatory statements. His counsel, however, did object, though without success, to the admissibility of such statements based on inadequate Miranda warnings. Moreover, Koch does not point out any other legitimate ground on which these statements could have been suppressed. This Court has made clear that counsel is not required to make futile motions or objections. See Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984) (per curiam).

Koch emphasizes that his counsel failed to impeach the testimony at trial of the sheriff and of one of his investigators that Koch had told them that he was standing near the bedroom door when he shot the victim, who allegedly was sitting up against the headboard of the bed at the time. The investigator had testified in a pretrial proceeding that Koch had stated that he was standing near a bedside table when he shot her. An expert witness testified at trial that the powder burns on the victim's face indicated that the muzzle of Koch's gun had been more than one inch but less than eighteen inches from her face. ³ The law enforcement officers' testimony at trial, however, was essentially consistent with the investigator's previous testimony. At the pretrial proceeding, the investigator specifically testified that the defendant had indicated that he was approximately six feet away from the victim when he shot her. At trial, the sheriff testified that Koch had indicated that he was between six to eight feet away from her at the time. The investigator merely testified at trial that Koch had told him that, as he turned to walk out of the bedroom, the victim said she was going to kill him, and he saw a flash, turned, and fired. Also at trial, the investigator indicated on a diagram where Koch had demonstrated that he was standing at the time. The trial record indicates that the bedroom door in question was very close to the bedside table. ⁴

Koch also points out that his trial counsel failed to move for a mistrial in light of an impermissible comment as to Koch's right to remain silent by one of the investigators. On cross-examination of the investigator, Koch's counsel asked why an available tape recorder was not used to record Koch's statements after the shooting. The investigator replied that he could not explain why they had not used the recorder at that time. He noted, however, that, although he intended to do so on the following day, Koch "advised me that he no longer wanted to speak to me. And, of course, that ended it, at that point."

In general, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), "prohibits the use of post-arrest, post-Miranda silence to impeach a defendant's trial testimony." United States v. Morales, 854 F.2d 61, 62 (5th Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 798, 102 L.Ed.2d 789 (1989); see United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.1986). In the present case, the...