Maxwell v. Mabry, 81-1900
| Decision Date | 16 March 1982 |
| Docket Number | No. 81-1900,81-1900 |
| Citation | 672 F.2d 683 |
| Parties | Theodis MAXWELL, Appellant, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard Quiggle, Little Rock, Ark., for appellant.
Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.
Theodis Maxwell appeals the district court's 1 denial of relief sought pursuant to 28 U.S.C. § 2254. Maxwell was convicted of capital felony murder for the 1973 beating death of an 85 year old storekeeper in Conway County, Arkansas. The state of Arkansas sought the death penalty. Maxwell was sentenced to life imprisonment without parole. Maxwell directly appealed his conviction contesting the jury selection procedure used in his case and the admission of certain items of evidence. The Arkansas Supreme Court affirmed his conviction. Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976). Maxwell then unsuccessfully sought permission from the Arkansas Supreme Court to proceed with a collateral attack in the trial court pursuant to Ark.R.Civ.P. 37.
Maxwell filed the present case in Federal District Court for the Eastern District of Arkansas. Counsel was appointed. After an evidentiary hearing, Magistrate Faulkner 2 recommended denial of relief with respect to Maxwell's present claims of ineffective assistance of counsel and the unconstitutional search. The district court, after a review of the entire record including the transcript of the hearing before the magistrate, adopted the magistrate's findings and recommendations without a further evidentiary hearing. We affirm the district court.
Maxwell argues that his trial counsel inadequately represented him. More specifically, Maxwell contends that his attorney met with him only once and he did not pursue an earlier motion for a change of venue. Maxwell also contends that his trial counsel did not fully develop his alibi that the money seized was not from the robbery, but was from an insurance settlement. 3 In addition, Maxwell argues that his trial counsel inadequately interviewed witnesses who could have established his alibi and unwisely did not have them testify.
Magistrate Faulkner examined these contentions at length. He found that even though the attorney visited Maxwell only once after an initial visit, there were several contacts and conversations about the case in other hearings and other court appearances which Maxwell and his attorney both attended. 4 The magistrate "question(ed) somewhat" the amount of contact, but found that this, in itself, did not constitute ineffective assistance of counsel. Moreover, there was no prejudice shown.
The magistrate was also satisfied that counsel's failure to pursue a motion for change of venue did not constitute ineffective assistance of counsel. The magistrate noted that counsel had succeeded in having the first jury panel quashed. 5 Counsel's failure to further pursue a change of venue was within the area of trial tactics and judgment which attorneys have to make. 6
The magistrate also rejected Maxwell's claim that his attorney's failure to pursue further his alibi that the seized money was from an insurance check constituted ineffective assistance of counsel. The magistrate concluded that in light of all the circumstances, including the attorney's contact with the attorney who Maxwell claimed was involved in the settlement but who told trial counsel he knew nothing about the settlement, the failure to pursue the alleged alibi was not ineffective assistance. The magistrate also noted that Maxwell testified concerning the alibi, so the matter was presented to the jury for its consideration. 7
The failure to fully interview witnesses was the fourth ground raised by Maxwell and dismissed by the magistrate. Records of whom counsel had interviewed were poor, and the passage of time made it difficult for attorney Irwin to recall all the witnesses contacted. However, Irwin recalled interviewing several persons. He decided to have some of them not testify because of inconsistencies in their stories and other problems with their testimony. The magistrate found that it was within the trial counsel's discretion to not further investigate some of these persons. Furthermore, in light of the inconsistencies in some of the witnesses' statements, the magistrate found that it was not ineffective assistance of counsel for the attorney to decide not to have some of these witnesses testify. In addition, the magistrate concluded that Maxwell had not shown prejudice in the failure of counsel to prepare, interview, or present all the suggested witnesses.
The district court, in summarizing the ineffective assistance of counsel claim, stated, "(b)ased on the record as a whole, the Court cannot say that the trial counsel's conduct of the case amounted to less than the customary skill and diligence of a reasonably competent attorney under similar circumstances as required by Pinnell v. Cauthron, 540 F.2d 938, 939 (8th Cir. 1976)." We agree with the district court's holding that:
There are aspects of Mr. Irwin's trial preparation which are perhaps subject to criticism. His alleged failure to interview and subpoena several alleged alibi witnesses is somewhat troublesome. Yet, no prejudice was shown in that none of these people was called to testify at the Magistrate's hearing, and Mr. Irwin indicated there was a problem, as he recalled, with conflicts in the supposed alibi testimony.
The other issue raised on appeal is whether the district court erred in dismissing Maxwell's Fourth Amendment claim on the basis that Stone v. Powell, 428 U.S. 465, 481-82, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976), barred it. Maxwell argues that the police used the wrong warrant to search his house 8 and therefore the search was warrantless. He further asserts that there were not sufficient grounds to justify a warrantless search. The district court ruled, "(i)n this case it is clear from the...
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