Luchenburg v. Smith
| Citation | 79 F.3d 388 |
| Decision Date | 28 March 1996 |
| Docket Number | No. 95-6136,95-6136 |
| Parties | Chris Anthony LUCHENBURG, Petitioner-Appellee, v. Sewell B. SMITH, Warden, Maryland Correctional Institution; Attorney General of the State of Maryland, Respondents-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Appeal from the United States District Court for the District of Maryland, at Baltimore; William M. Nickerson, District Judge, No. CA-92-2807-WN.
ARGUED: Tarra R. DeShields-Minnis, Assistant Attorney General, Criminal Appeals Division, Office of the Attorney General, Baltimore, Maryland, for Appellants. Steven Frederick Reich, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals Division, Office of the Attorney General, Baltimore, Maryland, for Appellants. James K. Bredar, Federal Public Defender, Sigmund R. Adams, Staff Attorney, Greenbelt, Maryland, for Appellee.
Before RUSSELL, Circuit Judge, CHAPMAN, Senior Circuit Judge, and BEATY, United States District Judge for the Middle District of North Carolina, sitting by designation.
Affirmed by published per curiam opinion.
The Maryland Attorney General appeals the district court's order adopting the magistrate judge's report and recommendation to grant Chris Anthony Luchenburg's petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1988). Because Luchenburg was denied effective assistance of trial counsel, we affirm.
In 1985, Chris Anthony Luchenburg was tried in the Maryland Circuit Court for first degree rape, first degree sexual offense, common law assault, carrying a deadly weapon (a knife), and the use of a handgun during the commission of a crime of violence. Luchenburg was accused of assaulting his estranged wife at gunpoint, and raping his sister-in-law at gunpoint and with a knife. At the close of trial, the circuit court instructed the jury in relevant part as follows:
[h]e is also charged with the offense of use of a handgun in the commission of a crime of violence. Now, under this count, he is charged, as I said, with the use of a handgun in the commission of a crime of violence. Now, the crime of rape, as he is charged and the crime of sexual offense in the ... first degree, excuse me, are crimes of violence. Therefore, if you find the defendant guilty of these and you also find the defendant used a handgun in the commission of that offense, you may find the defendant guilty of the use of a handgun in the commission of a crime of violence and, of course, vice versa.
Defense counsel did not object to the court's failure to explicitly instruct the jury that it must first find Luchenburg guilty of a predicate crime of violence in order to convict him of the compound handgun count. Although common law assault is not a "crime of violence" in Maryland, 1 the court did not so instruct the jury, and defense counsel similarly failed to object to this omission.
The jury acquitted Luchenburg of the rape and sexual offense charges against his sister-in-law, including the charge of carrying a knife, but convicted him of assaulting his wife and of using a handgun during the commission of a crime of violence. Despite that Luchenburg was acquitted of the predicate crimes of violence, the trial court did not throw out the conviction on the compound handgun charge and, in fact, sentenced Luchenburg to twenty years' imprisonment on that charge--the maximum term possible. The court also sentenced Luchenburg to serve a consecutive ten-year sentence on the assault count. Luchenburg has since served over ten years in prison.
Luchenburg was denied relief on direct appeal and in a subsequent state post-conviction petition. He thereafter filed the present habeas corpus petition in federal district court. Luchenburg contended, inter alia, that the post-conviction court erred in its ruling that trial counsel was not ineffective for failing to object to the jury instruction, and that his conviction and sentence for use of a handgun during a crime of violence violated his due process rights. Upon recommendation of the magistrate judge, the district court granted the writ based on Luchenburg's claim that his trial counsel was ineffective. The Maryland Attorney General timely appealed.
Turning to the merits of Luchenburg's ineffective assistance of counsel claim, 2 we note that our scope of review on a petition for habeas corpus is limited because we sit not to retry state cases de novo, but rather to examine the proceedings in the state court to determine whether a violation of federal constitutional standards occurred. Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2177, 33 L.Ed.2d 1 (1972). Federal habeas courts are without authority to correct a simple misapplication of state criminal law or procedure "but may intervene only to correct wrongs of [a federal] constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). Hence, we do not exercise the same supervisory power that we possess on an appeal from a conviction in the district court. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Nonetheless, an erroneous jury charge may form the basis of a habeas petition, either independently or in conjunction with an ineffective assistance of counsel claim, where the instruction "so infected the entire trial that the resulting conviction violates due process" by rendering the trial fundamentally unfair. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
Ineffective assistance of counsel is a mixed question of fact and law. A petitioner must show (1) that counsel made errors so serious that counsel's representation fell below an objective standard of reasonableness, and (2) that such failure resulted in prejudice so as to render the results of the trial unreliable. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A lawyer's performance is entitled to a presumption of reasonableness. Id. at 689, 104 S.Ct. at 2065. Thus, a petitioner challenging his conviction on the grounds of ineffective assistance must overcome a strong presumption that the challenged action amounted to trial strategy.
Under Maryland law, the circuit court must give a requested instruction that correctly states the applicable law and has not been fairly covered in the instructions already given. Mack v. State, 300 Md. 583, 479 A.2d 1344, 1348 (1984). The failure to give such an instruction constitutes error. Id. An instruction telling a jury it may not convict on a charge of use of a handgun during the commission of a crime of violence unless it first convicts on the predicate crime of violence is a correct statement of the law. Id. (citing Ford v. State, 274 Md. 546, 337 A.2d 81 (1975)). So, too, is an instruction telling the jury that common law assault is not a predicate crime of violence. Therefore, had counsel requested these instructions, the circuit court would have been required to give them unless already fairly covered in the given instructions.
The circuit court's instructions in the instant case did not explicitly tell the jury that it could not convict Luchenburg of the compound handgun charge unless it first convicted him of a predicate crime of violence. It also failed to inform the jury that common law assault was not a "crime of violence." Instead, the court merely instructed the jury that if it found Luchenburg guilty of rape or sexual offense, then it could convict him of the handgun offense, and "vice versa."
The State acknowledges the given instruction could have been more specific, but it contends the instruction fairly informed the jury that it could convict on the handgun count only if it first convicted on a predicate crime of violence. We disagree. We believe serious problems existed with the instructions of which trial counsel should have been aware. First, while it is possible that the addition of the words "vice versa" were intended to convey to the jury that it should acquit on the compound handgun offense if it...
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