Nickel v. Hannigan

• Decision Date: 30 September 1996
• Docket Number: No. 94-3417,94-3417
• Citation: 97 F.3d 403
• Parties: Willie W. NICKEL, Plaintiff-Appellant, v. Robert D. HANNIGAN, Warden, Hutchinson Correctional Facility, and Attorney General of Kansas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 403

97 F.3d 403

Willie W. NICKEL, Plaintiff-Appellant, v. Robert D. HANNIGAN, Warden, Hutchinson Correctional Facility, and Attorney General of Kansas Defendants-Appellees.

No. 94-3417.

United States Court of Appeals Tenth Circuit.

Sept. 30, 1996.

Barbara K. Huff (David J. Gottlieb with her on the brief), Kansas Defender Project, University of Kansas School of Law, Lawrence, KS, for Plaintiff-Appellant.

Kevin Fletcher, Assistant Attorney General (Carla J. Stovall, Attorney General, Kyle G. Smith and Melanie S. Pfeifer, Assistant Attorneys General with him on the brief), Topeka, KS, for Defendants-Appellees.

Before EBEL, HENRY, and McKAY, Circuit Judges.

HENRY, Circuit Judge.

In this appeal, Willie W. Nickel claims that the district court erred in dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 because his trial counsel, William Mize, provided him with ineffective assistance of counsel under the Sixth Amendment of the United States Constitution. Mr. Nickel claims that Mr. Mize was ineffective because he failed to object both to trial testimony that was purportedly privileged and to the admission of Mr. Nickel's allegedly involuntary statements to the police. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

I. BACKGROUND

In June 1980, Willie Nickel lived in Salina, Kansas in Joe Wuest's household with several other individuals, who, like Mr. Nickel, were "disadvantaged" in some way. Rec. vol. I, doc. 32, at 2. Mr. Wuest housed and fed these individuals in exchange for their labor in his custodial service. Through this arrangement, he "insured that they were dependent upon him." Id.

Early on the morning of June 20, 1980, Mr. Nickel and Mr. Wuest had a fight because Mr. Wuest had caught Mr. Nickel asleep on a job. After the fight, Mr. Nickel, afraid of losing his job, went to Dan Boyer's office to seek his advice. Mr. Boyer was a lawyer who had previously represented Mr. Nickel in various matters. Once inside the office with Mr. Boyer, Mr. Nickel told Mr. Boyer that he was afraid of losing his job and that he had been unable to concentrate since Ms. Wanda Kuhlman, another resident of the Wuest household, had disappeared in April 1980. Mr. Boyer assured Mr. Nickel that he would talk to Mr. Wuest later about Mr. Nickel keeping his job.

Mr. Nickel proceeded to tell Mr. Boyer that he did not think that Ms. Kuhlman would ever be found. He then confessed to Mr. Boyer that he had killed Ms. Kuhlman, the manner in which he had killed her, and where he had buried the body. In response, Mr. Boyer asked Mr. Nickel to go find Mr. Wuest and to bring him back to Mr. Boyer's office before they had any further discussion. Mr. Nickel did as he was requested. Once the three men were in Mr. Boyer's office, they discussed whether Mr. Nickel had killed Ms. Kuhlman, whether Mr. Wuest knew about the murder, and where the body was located. Mr. Nickel repeated his story about killing Ms. Kuhlman to Mr. Wuest and Mr. Boyer. Mr. Boyer then instructed Mr. Wuest to take Mr. Nickel to dig at the reported location of the body to determine the validity of Mr. Nickel's story. Mr. Boyer told Mr. Nickel that Mr. Nickel would probably go to jail or possibly to a state mental hospital.

After Mr. Nickel and Mr. Wuest left Mr. Boyer's office, Mr. Boyer called the police and reported that Mr. Nickel had possibly committed a homicide. Until Mr. Boyer's phone call, the police were unaware of Ms. Kuhlman's death. Following this report, two detectives came to Mr. Boyer's office, where Mr. Boyer again reported to the police that Mr. Nickel had possibly killed someone. At that time, Mr. Boyer also mentioned the name of Detective Galen Marble to the police because Mr. Nickel "had a relationship" with him. Rec. vol. I, doc. 28, at 38.

Mr. Boyer later called the Wuest residence and directed Mr. Nickel and Mr. Wuest to go to the police station. Mr. Nickel and Mr. Wuest went to the station, where Detective Marble advised Mr. Nickel of his Miranda rights and then interviewed him. While this interrogation was happening, the police were digging for Ms. Kuhlman's body at the Wuest residence. After the police found a body, which they believed to be that of Ms. Kuhlman, they told Detective Marble of the discovery, who then told Mr. Nickel. Mr. Nickel then admitted to Detective Marble that he had killed Ms. Kuhlman. After Mr. Nickel's confession, Detective Marble received a message that Mr. Nickel's attorney had called and had requested that the police terminate any interrogation of Mr. Nickel until the attorney was present. At that point, Detective Marble ceased the interrogation. ¹

Public Defender William Mize was appointed to represent Mr. Nickel. At Mr. Nickel's preliminary hearing, Mr. Boyer testified against Mr. Nickel. Mr. Mize orally objected to Mr. Boyer's testimony on the ground that it violated Mr. Nickel's attorney-client privilege, but the state court overruled this objection. ² At trial, Mr. Boyer again testified against Mr. Nickel, as did, among others, Detective Marble and Susan Perret, an occupant of the Wuest residence. Ms. Perret testified that before June 20, 1980, Mr. Nickel had confessed to her that he had killed Ms. Kuhlman. See Rec. vol. II, St. Dist. Ct. Transcript, at 187. At no point during Mr. Nickel's trial did Mr. Mize renew his objection to Mr. Boyer's testimony. His stated reason for his failure to object at trial was that he did not think that the issue of a lawyer testifying against his client was "appealable" because "[t]he court had already made its feelings known to [him], and [he] had to do the best [he] could with what testimony [he] had to work with." Rec. vol. I, doc. 28, at 85 (Mr. Mize's testimony at the federal district court's evidentiary hearing on Mr. Nickel's habeas petition). During the state court proceedings, Mr. Mize never moved to suppress, nor challenged in any way, Mr. Nickel's statements and confession to the police. ³

The trial jury convicted Mr. Nickel of first-degree murder. He appealed to the Kansas Supreme Court, which affirmed his conviction. In 1990, Mr. Nickel began a habeas proceeding in state court under Kan. Stat. Ann. § 60-1507, claiming that Mr. Mize had provided ineffective assistance of counsel by not allowing him to testify and by refusing to talk with him about his case. See Rec. vol. II, Mot. Under K.S.A. 60-1507, at 55. After Mr. Nickel was provided with post-conviction counsel based on the state district court's determination that he was "mentally incapable of preparing and presenting a meaningful petition" under Kan. Stat. Ann. § 60-1507, see Rec. vol. II, Order Appointing Counsel, at 1, Mr. Nickel filed a second petition under Kan. Stat. Ann. § 60-1507, alleging that Mr. Boyer had provided Mr. Nickel with ineffective assistance of counsel when he reported privileged information to the police. This second petition also alleged that Mr. Mize had provided ineffective assistance of counsel when he failed to object to Mr. Boyer's trial testimony and when he failed to challenge the voluntariness of Mr. Nickel's confession to the police because of Mr. Nickel's history of mental illness. The state district court dismissed the habeas petition, finding both that the communication between Mr. Boyer and Mr. Nickel to which Mr. Boyer testified at trial was not privileged because Mr. Wuest had been present during the communication and that Mr. Nickel's mental condition had not affected the voluntariness of his confession to the police.

On appeal, the Kansas Court of Appeals concluded that Mr. Mize did not provide ineffective assistance of counsel by failing to object to Mr. Boyer's trial testimony because Mr. Nickel had waived the attorney-client privilege by repeating his confession to Mr. Boyer in the presence of Mr. Wuest. The appellate court further determined that Mr. Mize "could have reasonably concluded from the psychological evaluations in the record that Nickel's mental problems would not affect the admissibility of the confession given to the law enforcement officer." See Rec. vol. II, St. Ct.App. Mem. Op., at 10. The court held that even if the confession had been suppressed, the other evidence against Mr. Nickel was sufficient to support the conviction. The Kansas Supreme Court denied Mr. Nickel's petition for review of the Kansas Court of Appeals' decision.

Mr. Nickel subsequently brought this federal habeas action under 28 U.S.C. § 2254. After an evidentiary hearing, the federal district court denied Mr. Nickel's petition for a writ of habeas corpus. The court found that Mr. Boyer's actions did not constitute ineffective assistance of counsel under the Sixth Amendment. At the time of Mr. Nickel's confessions to Mr. Boyer, the court found, no Sixth Amendment right to counsel had attached because adversarial judicial proceedings against Mr. Nickel had not yet begun. The court held that it "need not address the attorney-client privilege because it finds that the Sixth Amendment right to counsel had not attached and Boyer could not, therefore, render ineffective assistance of counsel." Rec. vol. I, doc. 32, at 8. The court also found that Mr. Mize's failure to renew at trial his objection to the admission of Mr. Boyer's testimony did not amount to constitutionally deficient legal performance under the Sixth Amendment. The court did not expressly address Mr. Nickel's claim that Mr. Mize had provided ineffective assistance of counsel in failing to move to suppress Mr. Nickel's statements to the police on the basis that they were involuntarily made. On December 13, 1994, the district court granted Mr. Nickel's request for a certificate of probable cause under 28 U.S.C. § 2253 ⁴ and for leave to proceed on appeal in forma pauperis, from which this appeal followed.

II. DISCUSSION

Mr. Nickel claims on appeal that the district court erred in dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254...