Schell v. Witek

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation218 F.3d 1017
Docket NumberNo. 97-56197,97-56197
Parties(9th Cir. 2000) WAYNE DALE SCHELL, Petitioner-Appellant, v. LARRY WITEK, Warden; BILL LOCKYER, Attorney General, State of California, <A HREF="#fr1-1" name="fn1-1">1 Respondents-Appellees. Office of the Circuit Executive
Decision Date23 March 2000

Page 1017

218 F.3d 1017 (9th Cir. 2000)
WAYNE DALE SCHELL, Petitioner-Appellant,
LARRY WITEK, Warden; BILL LOCKYER, Attorney General, State of California,1 Respondents-Appellees.
No. 97-56197
Office of the Circuit Executive
U.S. Court of Appeals for the Ninth Circuit
Argued and Submitted March 23, 2000--San Francisco, California
Filed July 11, 2000

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Carol A. Klauschie, Pasadena, California, for the petitioner-appellant.

Steven D. Matthews, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California, John G. Davies, District Judge, Presiding; D.C. No. CV-95-07908-JGD

Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder, Harry Pregerson, Diarmuid F. O'Scannlain, Stephen S. Trott, Ferdinand F. Fernandez, A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, and Raymond C. Fisher, Circuit Judges.


TROTT, Circuit Judge:

Wayne Dale Schell ("Schell") appeals a district court judgment denying his 28 U.S.C. S 2254 pro se petition for a writ of habeas corpus.2 Without holding a requested evidentiary hearing into Schell's claims, the court predicated its decision on the Report and Recommendations of a magistrate judge. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. S 2253.

Schell asserts three points of allegedly constitutional error: (1) that the state's case lacked sufficient evidence to support the jury's verdict finding 0him guilty of burglary, (2) that the state trial court violated his right to counsel by failing to rule on his pre-trial motion requesting substitute counsel, and (3) that his appointed counsel's defense of him at trial was prejudicially deficient. Schell asks us at a minimum to remand his case to the district court for an evidentiary hearing to explore two intertwined matters related to his Sixth Amendment right to counsel: (1) the effect of the state trial court's failure to rule on his motion for substitute counsel, and (2) whether counsel's representation of him at trial was fatally ineffective and prejudicial.

We hold that there was sufficient evidence for a reasonable jury to convict Schell of residential burglary. We hold also that the state trial court's failure to make a formal inquiry into the nature and extent of the conflict between Schell and his counsel was error. Furthermore, on the facts of this case, Schell's allegation that his counsel failed to consult a fingerprint expert could have -if true -constituted ineffective assistance of counsel. We therefore remand this case to the district court for an evidentiary hearing. This hearing shall determine (1) the nature of the alleged irreconcilable pre-trial conflict between Schell and his attorney, (2) whether that conflict constructively deprived Schell of his Sixth Amendment right to be represented by counsel, (3) whether counsel's handling of his defense was constitutionally deficient, and (4) if that defense was ineffective, whether that performance deficiency was prejudicial as defined in Strickland v. Washington, 466 U.S. 668 (1984).


On February 8, 1991, Emile Husinger's ("Husinger") apartment was burglarized. The burglar stacked two milk crates on top of each other, removed a screen, and entered the apartment through a louvered window more than six feet off the ground. The burglar left the screen outside the apartment near the milk crates. Two of the louvered window panes removed by

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the burglar were placed on a microwave oven inside the apartment. On the interior surface of one of the louvered panes, police discovered a fingerprint that, according to a state's expert witness, matched one of Schell's fingerprints. Based on that fingerprint, Schell was charged with burglarizing Husinger's apartment.

A public defender was appointed to defend Schell. Two days before trial, and after a protracted series of disagreements between the two about how to combat the state's fingerprint evidence, Schell's attorney informed the court in her client's absence that a conflict had arisen between herself and Schell about how to prepare his defense, and that Schell wanted the court to relieve her and to appoint substitute counsel. Under California law, this in shorthand is called a "Marsden motion." See People v. Marsden, 2 Cal. 3d 118 (1970). Normally, the essence of such a motion is that appointed counsel's representation has in some significant measure fallen below the level required by the Sixth Amendment.

The trial court did not rule on this motion, presumably because Schell was not present in the courtroom when it was made. During the next two days, Schell's case was transferred to a different judge, and the motion requesting substitute counsel was never addressed. Apparently, it simply got lost in the shuffle. According to Schell, when he asked his attorney before the start of his trial about the disposition of his pending motion for substitute counsel, she told him that the motion must have been denied because she was still his attorney. The record contains no support, either factual or legal, for counsel's alleged explanatory statement.

At trial, the same public defender represented Schell. A jury found him guilty as charged. On direct appeal, Schell argued that the trial court erred in failing to hold a hearing on his motion for substitute counsel. He requested that the case be removed to the trial court for the equivalent of a Marsden hearing.3 The California Court of Appeal affirmed Schell's conviction, holding on the record that Schell had waived or abandoned his motion for substitute counsel, "and there was no error resulting from the court's failure to rule on it." His request for a remand and a hearing was rejected. Schell's petition for direct review by the California Supreme Court was denied.

Next, Schell filed a petition for a writ of habeas corpus in California state court. The trial court denied his petition, as did the California Court of Appeal and the California Supreme Court. A second petition was equally unsuccessful. No state tribunal held a hearing to explore Schell's allegations against his lawyer.

Schell then filed this petition in federal court. A magistrate judge concluded without an evidentiary hearing (1) that Schell was not prejudiced by the state court's Marsden lapse; (2) that sufficient evidence supported his conviction; and (3) that his counsel's representation of him was effective. The district court then denied his petition. This appeal followed4.

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We review de novo a district court's denial of aS 2254 habeas petition. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998). We may grant an application for a writ of habeas corpus "only on the ground that[the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. S 2254(a) (1994) (emphasis added). A federal court reviewing a state court determination in a habeas corpus proceeding ordinarily applies a harmless error standard, examining whether the error "had substantial and injurious effect or influence" on the trial. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). "Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice.' " Id. at 637.


I Sufficiency of the Evidence

Schell claims that his conviction violated his constitutional due process rights as delineated in Jackson v. Virginia, 443 U.S. 307 (1979). He argues that the judgment of conviction was based on insufficient evidence to support the verdict that he was guilty of burglary. We respectfully disagree.

To support his claim that one fingerprint on a glass louver was insufficient to prove he committed the crime, Schell relies on our decision in Mikes v. Borg, 947 F.2d 353 (9th Cir. 1991). In Mikes, the victim was killed with a post from a disassembled turnstile that had been purchased at a hardware store four months before the crime. Id. at 355. The defendant's fingerprints were discovered, among other fingerprints, on one of the posts. Id. Those fingerprints were the only evidence linking the defendant to the crime. Id. In addressing Mikes's claim that the fingerprint evidence alone was insufficient to support his conviction, we noted:

fingerprint evidence alone may under certain circumstances support a conviction. However, in fingerprint-only cases in which the prosecution's theory is based on the premise that the defendant handled certain objects while committing the crime in question, the record must contain sufficient evidence from which the trier of fact could reasonably infer that the fingerprints were in fact impressed at that time and not at some earlier date. In order to meet this standard the prosecution must present evidence sufficient to permit the jury to conclude that the objects on which the fingerprints appear were inaccessible to the defendant prior to the time of the commission of the crime.

Id. at 356-57 (internal citations omitted) (emphasis in original). In Mikes, we held that the fingerprint evidence on the turnstile post was insufficient to support a conviction, because the post had been in a public place shortly before the crime. Id. at 358-59. The facts and circumstances surrounding the fingerprints did not support a reasonable inference that they were placed on the post at the time of the crime.

The question of what logical inferences can be drawn from particular fingerprint evidence was raised again in Taylor v. Stainer, 31 F.3d 907 (9th Cir. 1994). In Taylor, the victim was killed in her apartment. Id. at 908. Police believed that the assailant had entered the apartment through the kitchen window. Id. On the...

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