Payne v. Stansberry

• Decision Date: 29 July 2014
• Docket Number: No. 11–5300.,11–5300.
• Citation: 760 F.3d 10
• Parties: Ronnie PAYNE, Appellant v. Patricia STANSBERRY, Warden, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

760 F.3d 10

Ronnie PAYNE, Appellant

v.Patricia STANSBERRY, Warden, Appellee.

No. 11–5300.

United States Court of Appeals,

District of Columbia Circuit.

Argued April 16, 2014.

Decided July 29, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00617).

Rosanna M. Taormina, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant U.S. Attorney. Suzanne G. Curt and John P. Mannarino, Assistant U.S. Attorneys, entered appearances.

Before: ROGERS, SRINIVASAN and MILLETT, Circuit Judges.

ROGERS, Circuit Judge:

Ronnie Payne appeals the dismissal of his petition for a writ of habeas corpus in which he claimed he was denied his right to the effective assistance of counsel under the Sixth Amendment when his appellate counsel failed to seek plain error review of the trial judge's instruction that the jury “must find [Payne] guilty” even if the government failed to prove any element of a charged offense beyond a reasonable doubt. We conclude Payne has met his burden under the ineffective assistance standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, he is entitled to a new direct appeal at which he may raise this instructional error claim before the D.C. Court of Appeals for plain error review.

I.

At the close of the evidence, the trial judge instructed the jury on the government's burden of proof:

If you find that the Government has proved, beyond a reasonable doubt, every element of the offense with which these defendants, or this defendant is charged, it's your duty to find that defendant guilty.

On the other hand, if you find that the Government has failed to prove any element of the offense, beyond a reasonable doubt, you must find that defendant guilty.

Trial Tr. 94 (Feb. 19, 1993) (emphasis added). The jury was further instructed that it “may not ... disregard any instruction” and “may not question the wisdom of the law.” Id. at 90. At the start of the trial, the judge had instructed the jury that it was to follow the final instructions rather than his preliminary remarks. See Trial Tr. 108 (Feb. 9, 1993). Defense counsel did not object to the final instruction on the government's burden of proof. Payne was convicted and sentenced to consecutive sentences ranging from two years to life imprisonment.

On appeal, his trial counsel was appointed his appellate counsel and argued, among other things, that the trial judge erred in giving an aiding and abetting instruction to the jury, visiting the crime scene, and denying Payne's motion for a new trial based on newly discovered potentially exculpatory evidence. Although counsel had a trial transcript for review, he did not seek plain error review of the burden of proof instruction. The D.C. Court of Appeals affirmed Payne's convictions. Payne v. United States, 697 A.2d 1229 (D.C.1997). Payne filed several pro se motions to vacate his convictions and to recall the mandate, identifying in at least one a missed “constitutional issue that he failed to present on direct appeal.” Mot. for Recons. at 1 (Sept. 17, 2008).

Following the denial of his post-conviction motions by the District of Columbia courts, Payne filed a pro se petition for a writ of habeas corpus in the federal district court. See Williams v. Martinez, 586 F.3d 995, 998 (D.C.Cir.2009). He argued that he was denied his Sixth Amendment right to the effective assistance of appellate counsel, see Evitts v. Lucey, 469 U.S. 387, 393–94, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), because his appointed appellate counsel, who was also his trial counsel, labored under a conflict of interest and failed, among other things, to present the trial judge's erroneous burden of proof instruction for plain error review. Payne attached to the petition two letters from counsel acknowledging that he “overlooked the faulty jury instruction,” and that he “simply d[id] not know how [he] could have missed that in the appeal,” and suggesting that Payne's “best option is pursuing the ineffective [assistance of counsel] option.” Appellant's App. 34–35 (attaching letters of Dec. 6 & 31, 2007). The district court dismissed the habeas petition, finding Payne had failed to show he was prejudiced as a result of appellate counsel's deficient performance in failing to present the “obvious” instructional error. Payne v. Stansberry, 800 F.Supp.2d 251, 260–62 (D.D.C.2011). Payne's motion for reconsideration was denied.

This court granted Payne's motion for a certificate of appealability with regard to his claims of ineffective assistance of counsel due to appellate counsel's conflict of interest in serving as both trial and appellate counsel, see Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and in failing to challenge the reasonable doubt instruction, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Order, Oct. 18, 2012. In view of our disposition, we do not reach the conflict of interest claim.

II.

To prevail on a claim of ineffective assistance of counsel under Strickland, the defendant must show that (1) his counsel's performance “fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 687–88, 694, 104 S.Ct. 2052; see United States v. Hughes, 514 F.3d 15, 17 (D.C.Cir.2008). The same standard applies with respect to claims of the ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The Strickland test “does not require defendants to show that the errors ‘more likely than not altered the outcome in the case,’ but only that they were ‘sufficient to undermine confidence in the outcome.’ ” United States v. Saro, 24 F.3d 283, 287 (D.C.Cir.1994) (quoting Strickland, 466 U.S. at 693–94, 104 S.Ct. 2052). The parties agree that the D.C. Court of Appeals would have applied a plain error standard of review had appellate counsel presented the issue of the burden of proof instruction in Payne's direct appeal and under Strickland 's second prong, the question therefore is whether it is reasonably probable that the D.C. Court of Appeals would have concluded that the instruction was plain error. This court reviews the district court's factual findings for clear error and questions of law de novo. See Obaydullah v. Obama, 688 F.3d 784, 791–92 (D.C.Cir.2012); Dorsey v. Stephens, 720 F.3d 309, 314 (5th Cir.2013); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008).

A.

“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 upon as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Strickland cautions that “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. As our sister circuit has observed, “[b]ecause of this presumption and the reality that effective appellate advocacy often entails screening out weaker issues, the Sixth Amendment does not require that appellate counsel raise every colorable or non-frivolous issue on appeal.” Roe v. Delo, 160 F.3d 416, 418 (8th Cir.1998) (citing Jones v. Barnes, 463 U.S. 745, 751–54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). A “defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citation omitted). Indeed, the decision to forego a plain error claim would not uncommonly be thought to be “the result of a reasonable winnowing of weaker appellate claims.” Roe, 160 F.3d at 418.

In Payne's case, however, counsel's own letters indicate that there could be no basis for concluding that there was any strategic or tactical decision not to challenge the instruction on appeal. Counsel acknowledged that he had no explanation for his failure to raise the issue. Counsel stated that he “d[id] not know how [he] could have missed” the issue on appeal. The instructional error was significant because it lowered the government's burden of proof and would have been apparent to a reasonably competent attorney who reviewed the trial transcript and was familiar with long-established Supreme Court precedent on the burden of proof. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Counsel raised a different non-constitutional instructional error on direct appeal, further indicating that the failure to raise this issue was oversight, not deliberate strategy.

Consequently, absent a strategic decision by counsel, the ineffectiveness prong of Strickland turns on whether an objectively reasonable attorney would have sought plain error review because the issue had a reasonable likelihood of success. “In other words, this is the rare case where both Strickland prongs turn on the same question, whether there is a reasonable probability that the outcome of [Payne's] appeal would have been different had this issue been raised.” Roe, 160 F.3d at 419. The answer requires an examination of the D.C. Court of Appeals' application of the plain error standard of review to instructional error.

B.

Under the plain error standard of review, there must be (1) error (2) that is “obvious,” (3) “affec[ts] substantial rights,” and (4) “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732–36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see Foreman v. United States, 633 A.2d...