McGurk v. Stenberg
| Decision Date | 08 October 1997 |
| Docket Number | No. 4:95CV3281.,4:95CV3281. |
| Citation | 58 F.Supp.2d 1051 |
| Parties | Timothy G. McGURK, Petitioner, v. Donald STENBERG, Attorney General for the State of Nebraska, and Michael Thurber, Superintendent of the Lancaster County Jail, Respondents. |
| Court | U.S. District Court — District of Nebraska |
Dorothy A. Walker, Lincoln, NE, for Petitioner.
Mark D. Starr, Attorney General's Office, John A. Colborn, Lancaster County Attorney's Office, Lincoln, NE, for Respondents.
Donald Stenberg, Lincoln, NE, Pro se.
This matter is before the Court on the Magistrate Judge's Report and Recommendation (filing 27) and the objection to such Report and Recommendation (filing 28), filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. I have conducted, pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, a de novo review of the portions of the Recommendation to which objections have been made, and I have determined that the Report and Recommendation should be adopted in part.
For the reasons articulated by Magistrate Judge Piester, I adopt the recommendation that Petitioner's petition for writ of habeas corpus should be denied with respect to Petitioner's claims regarding (1) violation of his right to trial by jury, and (2) insufficiency of evidence in Petitioner's enhancement proceedings. As stated by Magistrate Judge Piester, Petitioner's jury claim is procedurally defaulted and Petitioner has expressly abandoned his evidence claim. I note that Respondents have not objected to this portion of Magistrate Judge Piester's Recommendation.
Petitioner's remaining claim is that he received ineffective assistance of counsel when neither the trial court nor his attorney advised him of his right to trial by jury pursuant to Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.1990), a ruling which was made before Petitioner's arrest. Richter held that a Nebraska statute forbidding jury trials for violations of city and village ordinances, including third-offense DWI violations, was unconstitutional because the possible penalty of 15-year license revocation was a substantial burden on the offender such that it raised Sixth Amendment concerns.
As to this claim, Magistrate Judge Piester recommends that Petitioner's petition for writ of habeas corpus be conditionally granted because (1) counsel's performance was deficient within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); (2)(a) the Strickland prejudice prong cannot be analyzed because Petitioner's nonjury trial was a nullity under Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); and (2)(b) although Petitioner has failed to allege that had he been afforded the right to a jury trial, the result of his trial would have been different, Strickland prejudice can be presumed from the total denial of Petitioner's right to choose whether to proceed before a judge or jury under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Respondent Stenberg objects to Magistrate Judge Piester's conclusions that counsel's performance was deficient and that prejudice may be presumed (filing 28). As to the deficiency of counsel's performance, Respondent argues that, "The newness of [the Richter case], questions about whether it would be binding on state courts, and the fact that it is not something which directly impacts the reliability of the truth-finding function, causes respondent to question whether it is right to label the attorney's performance as constitutionally deficient." (Filing 28 at 1.) As to the presumption of Strickland prejudice, Respondent argues that prejudice may only be presumed in cases involving complete denial of counsel or defense counsel who labors under an actual conflict of interest; that is, "cases where it is impossible to gauge the impact of the violation on the ultimate determination of guilt or innocence." (Filing 28 at 2.)
While I agree with Magistrate Judge Piester's assessment of counsel's deficient performance, the first prong of the Strickland analysis, I disagree that prejudice may be presumed in this case. While various cases have noted that prejudice may be presumed under Strickland under certain circumstances, this case does not involve those circumstances. Strickland v. Washington, 466 U.S. 668, 692-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (); United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir. 1988) ().
In the absence of clear, direct authority supporting a presumption of Strickland prejudice in a case where (1) defense counsel failed to advise the defendant of his right to a jury trial, and (2) the defendant failed to allege that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different had he been offered the choice to have a jury trial, Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052, I shall not expand the categories of circumstances in which Strickland prejudice may be presumed.
In this case Petitioner has offered no basis for concluding that the decision-making process during his bench trial was skewed in some way, that his trial strategy would have differed had he elected a jury trial, or that the result of his bench trial would have been different had he been offered the opportunity to have a jury trial. As Magistrate Judge Piester points out, Petitioner may have made different arguments, called different witnesses, or presented different evidence had he proceeded before a jury. Petitioner may have even achieved a more favorable result before a jury. However, Petitioner must show that counsel's error "actually had an adverse effect" on his defense, and it is "not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. 2052 (emphasis added). Petitioner has made no such allegation or showing here.
Because I decline to presume Strickland prejudice, and because Petitioner has failed to show that but for counsel's unprofessional errors, the result of his trial would have been different had he been offered the opportunity to have a jury trial, Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052, Petitioner's ineffective assistance of counsel claim fails and his petition for writ of habeas corpus should be dismissed in its entirety.1
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (filing 27) is adopted in part and rejected in part;
2. Respondents' objection (filing 28) to the Report and Recommendation is sustained to the extent discussed above;
3. Petitioner's petition for writ of habeas corpus is denied and this case is dismissed; and
4. Judgment shall be entered by separate document.
Before the court for consideration is Petitioner Timothy G. McGurk's petition for writ of habeas corpus. (Filing 1.) For reasons discussed more fully below, I shall recommend that the petition be conditionally granted.1
On January 8, 1991, following a non-jury trial in the County Court of Lancaster County, Nebraska, Petitioner Timothy G. McGurk was convicted of driving while under the influence of alcohol (DWI). At a subsequent enhancement hearing the court found petitioner had two prior convictions for driving under the influence of alcohol. As a result, the court sentenced petitioner to a three-month term of imprisonment, fined him five hundred dollars, and ordered him not to drive any motor vehicle in Nebraska for fifteen years. Petitioner appealed to the District Court of Lancaster County, then to the Nebraska Supreme Court. Both courts affirmed the conviction and sentence.
On December 9, 1992 petitioner filed his first petition for writ of habeas corpus in this court, raising the following three claims:
(1) Petitioner's conviction was obtained in violation of his right to trial by jury as guaranteed by the Sixth Amendment;
(2) Petitioner's counsel failed to preserve and assign as error the violation of petitioner's right to trial by jury; and
(3) Insufficient evidence established the two prior convictions used to enhance petitioner's sentence.
(See McGurk v. Stenberg, et al., 4:CV92-3429, filing 1, at ¶¶ 13-22.). Ultimately, the first habeas petition was dismissed without prejudice, and petitioner returned to state court where he filed a motion for postconviction relief raising the first and second claims. (See filing 12.) The County Court of Lancaster County, Nebraska rejected both claims on their merits, and the District Court of Lancaster County, Nebraska affirmed without comment. (Filing 20, ex. D at 13.) In a published opinion the Nebraska Court of Appeals rejected the second claim (ineffective assistance), but did not discuss petitioner's first claim (right to trial by jury). State v. McGurk, 3 Neb.App. 778, 532 N.W.2d 354 (1995). McGurk petitioned for further review of his second claim by the Nebraska Supreme Court, but that petition was overruled.
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