McGurk v. Stenberg, 97-4253

• Decision Date: 10 December 1998
• Docket Number: No. 97-4253,97-4253
• Citation: 163 F.3d 470
• Parties: Timothy G. McGURK, Appellant, v. Donald STENBERG, Attorney General for the State of Nebraska; Michael Thurber, Superintendent of the Lancaster County Jail, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 470

163 F.3d 470

Timothy G. McGURK, Appellant, v. Donald STENBERG, Attorney General for the State of Nebraska;

Michael Thurber, Superintendent of the Lancaster

County Jail, Appellees.

No. 97-4253.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 21, 1998.

Decided Dec. 10, 1998.

Dorothy Ann Walker, Lincoln, NE, argued, for Appellant.

Mark D. Starr, Asst. Atty. Gen., Lincoln, NE, argued (John A. Colborn, on the brief), for Appellee.

Before McMILLIAN, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Timothy G. McGurk was charged with operating a motor vehicle while under the influence of alcohol (DWI) and was convicted upon a bench trial in the County Court of Lancaster County, Nebraska. Because this was McGurk's third such offense, the court sentenced him to three months imprisonment, a five-hundred dollar fine, and a fifteen-year suspension of driving privileges. McGurk pursued direct and collateral relief in the Nebraska courts and then instituted proceedings for federal habeas relief under 28 U.S.C. § 2554. The district court declined to follow the magistrate's recommendation that, as a result of trial counsel's failure to inform McGurk of his right to a trial by jury, the writ should issue. Because failure to inform a defendant charged with a serious crime of the right to trial by jury constitutes structural error and thus presumptively violates his Sixth and Fourteenth Amendment right to effective assistance of counsel, we reverse and remand with instructions to issue the writ of habeas corpus unless, within a reasonable time to be designated by the district court, the state affords McGurk a new trial. ¹

I. Background

On May 23, 1990, a panel of this court held that a person charged under Nebraska law for third-offense DWI must be afforded the right to trial by jury. See Richter v. Fairbanks, 903 F.2d 1202, 1204-06 (8th Cir.1990). Reasoning that maximum penalties of three to six months imprisonment and fifteen years revocation of a driver's license "manifested the kind of strong disapproval associated with a serious crime," we held Nebraska Revised Statute § 25-2705 (then Neb.Rev.Stat. § 24-536) unconstitutional insofar as it prohibited jury trials on the charge of DWI, third offense. Id. at 1205 (citing Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989)); see State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324, 327 (Neb.1992) (explaining statutory scheme).

McGurk was arrested for DWI in September 1990 and his case was tried on January 8, 1991. Neither McGurk's counsel nor the trial court informed him of his right to a jury trial, nor did McGurk waive that right. After his conviction and sentencing, McGurk filed direct appeals in the Nebraska courts. Two days after the Nebraska Supreme Court affirmed McGurk's conviction, that same court adopted the Eighth Circuit's position in Richter, ruling that the Sixth and Fourteenth Amendments require the opportunity for a jury trial on the charge of DWI, third offense. See Wiltshire, 491 N.W.2d at 327.

After prematurely seeking federal habeas relief under 28 U.S.C. § 2254, McGurk returned to the Nebraska courts and filed for post-conviction relief, claiming 1) his conviction was obtained in violation of his Sixth Amendment right to a trial by jury; and 2) his counsel was ineffective in not advising McGurk of his right to trial by jury and not preserving and assigning the error for subsequent review. The county court rejected both claims on the merits after a hearing and the district court affirmed without comment. The Nebraska Court of Appeals also affirmed, concluding that while petitioner's trial counsel did in fact perform deficiently, the claim did not establish Strickland prejudice. See State v. McGurk, 3 Neb.App. 778, 532 N.W.2d 354 (Neb.Ct.App.1995). The appeals court did not address McGurk's jury-trial claim. McGurk sought discretionary review of the ineffective assistance portion of the appeals court's decision and the Nebraska Supreme Court denied the petition without comment.

On August 11, 1995, McGurk filed the present petition in federal district court. The Magistrate ruled that only McGurk's claim of ineffective assistance of counsel survived for review on the merits. ² On the ineffective assistance claim, the magistrate determined that the Nebraska Court of Appeals erroneously subjected the ineffective assistance of counsel claim to harmless error analysis. The magistrate reasoned that no showing of prejudice is required where deficient performance results in the loss of the right to make an election of trial by jury. ³

The district court disagreed, stating that under the facts of this case, prejudice should not be presumed and that McGurk failed to show actual prejudice. Recognizing the conflict between the district court and the magistrate, the district court granted a certificate of appealability on the issue of prejudice.

II. Discussion

McGurk alleges that his trial counsel's failure to discover that a defendant charged with DWI, third offense, has a right to a trial by jury, and the resultant failure to inform McGurk of that right at the time of trial or to raise the issue on direct appeal, constituted ineffective performance. We agree.

We review questions of ineffective assistance of counsel based on an undisputed factual record de novo. ⁴ See Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989); see also Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 ("[I]n a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d)."). McGurk was entitled to effective assistance of counsel at his trial, see Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052, and at his appeal of right, see Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The "benchmark 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." Strickland, 466 U.S. at 686, 104 S.Ct. 2052. To establish ineffective assistance of counsel, McGurk must show that counsel's performance was deficient and that such deficient performance prejudiced his defense. See id. at 687-89, 104 S.Ct. 2052; Schumacher v. Hopkins, 83 F.3d 1034, 1036 (8th Cir.1996). In making his showing of deficiency, petitioner must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. "Given the considerable discretion to be afforded counsel, a defendant is more likely to prevail on an ineffective assistance of counsel claim where the error he points to arises from counsel's lack of diligence rather than the exercise of judgment." United States v. Loughery, 908 F.2d 1014, 1018 (D.C.Cir.1990) (citing 2 W. LaFave & J. Israel, Criminal Procedure § 11.10(c), at 44 (Supp.1990)). Once deficient performance has been established, petitioner must demonstrate "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Schumacher, 83 F.3d at 1037 (citing Lockhart v. Fretwell, 506 U.S. 364, 368-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)).

In articulating the prejudice component of the Strickland analysis, the Supreme Court provided that in certain circumstances the requisite showing of prejudice may be presumed due to the nature of the deficient performance. See 466 U.S. at 692, 104 S.Ct. 2052 ("In certain Sixth Amendment contexts, prejudice is presumed."); United States v. Cronic, 466 U.S. 648, 656-58, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (elaborating, in companion case to Strickland, on the presumptive prejudice concept). Due to the fact that prejudice may be presumed "only when surrounding circumstances justify a presumption of ineffectiveness[,]" Cronic, 466 U.S. at 662, 104 S.Ct. 2039, courts have been appropriately cautious in presuming prejudice. See Scarpa v. DuBois, 38 F.3d 1, 12 (1st Cir.1994) (stating that "a showing of actual prejudice remain[s] a necessary element" in most cases). For the most part, courts have presumed prejudice only where the defendant establishes a constructive denial of counsel. See Tucker v. Day, 969 F.2d 155, 159 (5th Cir.1992) (counsel remained silent through resentencing hearing); United States v. Mateo, 950 F.2d 44, 48-50 (1st Cir.1991) (same throughout trial despite absence of waiver); Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.1989) (failure to object to directed verdict by trial court); Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984) (attorney slept through substantial portion of trial). Courts have also identified, however, some types of trial errors that justify a finding of presumptive prejudice. See U.S. v. Swanson, 943 F.2d 1070, 1074 (9th Cir.1991) (explicit concession of reasonable doubt in closing argument per se prejudicial); Osborn v. Shillinger, 861 F.2d 612, 628-29 (10th Cir.1988) (counsel's closing at sentencing hearing undermined defendant's interests). Recognizing the extremely limited circumstances in which it is appropriate to presume prejudice, we conclude that the constitutional error in this case, namely counsel's failure to inform McGurk of his right to a jury trial, justifies a presumption of prejudice.

We find additional guidance in determining that a presumption of prejudice is appropriate from a line of Supreme Court decisions identifying some types of trial errors that are not amenable to harmless-error analysis, but instead constitute "structural defects in the constitution of the trial mechanism," which so "affect[ ] the framework within which the trial proceeds" that they...