Martin v. McCotter

• Decision Date: 13 August 1986
• Docket Number: No. 85-1311,85-1311
• Citation: 796 F.2d 813
• Parties: Michael Scott MARTIN, Plaintiff-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 813

796 F.2d 813

55 USLW 2151

Michael Scott MARTIN, Plaintiff-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections Defendant-Appellee.

No. 85-1311.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1986.

Timothy J. Ferreri and Melinda Hoyle Bozarth, Huntsville, Tex., for plaintiff-appellant.

William C. Zapalac and Jim Mattox, Atty. Gen., Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, POLITZ and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Petitioner Michael Scott Martin appeals from the District Court's denial of habeas relief, 28 U.S.C. Secs. 2241, 2254. We affirm.

I.

The record reflects that on July 14, 1979, Doyle Lovelady was robbed at gunpoint at a service station in Garland, Texas. The robber taped Lovelady to restrain him, twice threatened Lovelady with death, and at one point struck Lovelady with the gun. A Garland police officer, Dennis Wheatley, identified Michael Scott Martin in the area of the robbery a short time after the robbery had been committed. Wheatley was familiar with Martin as he had previously arrested Martin for aggravated assault; Martin had been sentenced on the prior aggravated assault conviction on July 9, 1979, receiving four years probation and a $2,500 fine. When Officer Wheatley learned of the Garland robbery, he suspected that Martin might have been involved and prepared a photographic display. Lovelady positively identified Martin the next day as the person who had robbed him.

At trial before a jury, the State presented the testimony of Lovelady, who identified Martin as the robber. Martin offered an alibi defense. Numerous witnesses were called to testify to Martin's good character and whereabouts on July 14, 1979. After various witnesses had claimed that Martin was at his residence at Lake Worth in Tarrant County, Texas, on the date and time of the Garland robbery, Martin himself took the stand. Martin acknowledged his previous conviction for aggravated assault, but argued his innocence in the robbery at issue. Martin reiterated his alibi defense. In an attempt to cast doubt upon Lovelady's in-court identification of Martin, defense counsel sought to establish that Lovelady had seen Martin prior to entering the courtroom.

In rebuttal, the State called Officer Wheatley, who testified to knowing Martin prior to July 14, 1979, and testified to seeing Martin in the vicinity of the robbery shortly after the robbery had occurred. Wheatley also discussed Lovelady's previous identification of Martin from the photographic display. Martin was convicted of aggravated robbery, and, after a sentencing hearing at which his two defense counsel offered no argument, and at which neither the State nor the defense offered any additional evidence, was sentenced to life imprisonment.

After exhausting his state remedies, Martin filed a federal petition for writ of habeas corpus. An evidentiary hearing was held. On March 13, 1985, the United States Magistrate filed proposed findings of fact and conclusions of law, recommending that Martin's application for habeas relief be denied and dismissed. The District Court adopted the Magistrate's recommendation, and, on April 17, 1985, entered an order denying relief.

II.

Martin claims in his petition for habeas relief that he received ineffective assistance of counsel at both the guilt-innocence and sentencing stages of his trial. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that "[t]he bench mark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686, 104 S.Ct. at 2064. The Court enunciated a two-pronged test for determining the effectiveness of counsel's performance:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064. We need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. at 2069.

To satisfy the deficiency prong of the Strickland test, the defendant must show that counsel's representation fell below an objective standard of reasonableness as informed by prevailing professional standards. Id. at 688, 104 S.Ct. at 2065. Great deference is given to counsel, "strongly presuming that counsel has exercised reasonable professional judgment." Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir.1986) (citing Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir.1984)). To fulfill successfully the prejudice prong, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome;" a defendant need not, however, show that "counsel's deficient conduct more likely than not altered the outcome of the case." Id. "Our assessment of counsel's performance requires us to make every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time." Moore v. Maggio, 740 F.2d 308, 315 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).

Because both the deficiency and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact, we must make an independent determination of whether counsel's representation satisfied the Sixth Amendment. Mattheson v. King, 751 F.2d 1432, 1438 (5th Cir.1985), cert. dismissed, --- U.S. ----, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). To the extent that state and federal courts make specific predicate factual findings, we must apply the Sec. 2254(d) presumption of correctness and the clearly erroneous standard of Fed.R.Civ.P. 52(a), respectively. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070.

III.

Martin alleges a plethora of errors by his two defense counsel at the guilt-innocence phase of trial. Martin first contends that one of his counsel erred in failing to appeal Martin's prior conviction for aggravated assault; if the conviction had been placed on appeal, it would not have been admissible at the subsequent trial on the aggravated robbery charge. Even assuming that this contention of an alleged error by one of the defense counsel in a separate prior criminal proceeding is properly before us in the instant case, Martin is not entitled to relief. The testimony at the evidentiary hearing indicated that the decision not to appeal the aggravated assault conviction reflected the exercise of reasonable professional judgment. Despite the seriousness of this prior offense--as Martin admitted on the stand, he robbed a grocery store with a knife and gun and fired four shots at his pursuers--Martin received a sentence of only four years probation and a $2,500 fine. The prosecutor suggested that the State would not oppose an appeal, but instead welcomed an opportunity to secure a more severe sentence. Counsel's choice not to run that risk was not deficient.

Martin next complains about the manner in which the jury was informed of his prior conviction. Martin's argument here is rather vague. As the Magistrate found, the record reflects that the defense endeavored to be open and honest with the jury about Martin's prior conviction, seeking to present Martin as a man who, although guilty of one crime, was innocent of the robbery for which he was now on trial. It was determined before trial that Martin would testify on his own behalf as to alibi. Martin admitted at the evidentiary hearing that he was aware that, if he took the stand, his prior conviction might be introduced against him.

Defense counsel chose to have Martin testify as the final alibi witness. Although both defense counsel and the prosecution made reference to the aggravated assault conviction when the twelfth defense witness was on the stand, it was not until Martin testified, as the fourteenth defense witness, that the details of the prior conviction were revealed. Martin now argues that his prior conviction should have been brought out earlier, claiming that counsel's decision to present Martin as the final alibi witness was unreasonable. Martin seeks somehow to bolster his argument by noting that although defense counsel intended to have Martin reveal the details of his prior conviction when he took the stand, that plan was to some extent aborted when the twelfth defense witness mentioned the prior conviction. The fact that Martin now complains about the results of the trial strategy chosen, however, does not undermine the reasonableness of counsel's decision to present Martin as the ultimate alibi witness, whose statements would be bolstered by the testimony that had preceded him. Again, we find no deficiency in counsel's performance.

Similarly, we find no deficiency in counsel's failure to object to a question proffered by the prosecution. After the defense had rested its case, the prosecution recalled Martin to the stand and asked him...