Schell v. Witek
| Decision Date | 01 February 1999 |
| Docket Number | No. 97-56197,97-56197 |
| Citation | 181 F.3d 1094 |
| Parties | (9th Cir. 1999) 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. Argued and Submitted: |
| Court | U.S. Court of Appeals — Ninth Circuit |
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: Dorothy W. Nelson, Alex Kozinski, and Stephen S. Trott, Circuit Judges.
OVERVIEW
Wayne Dale Schell ("Schell") appeals a district court judgment adopting the findings of a magistrate judge and denying his 28 U.S.C. 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. 2253.
On appeal, Schell asserts two points of error: (1) that there was insufficient evidence to find him guilty of residential burglary; and (2) that the state court violated his Sixth Amendment right to counsel by erroneously failing to consider his motion requesting substitute counsel. Schell also asks us to remand the case to the district court for an evidentiary hearing to determine whether his trial counsel was effective. We hold that there was sufficient evidence for a reasonable jury to convict Schell of residential burglary. We also hold that the state court's failure to make a formal inquiry into the conflict between Schell and his counsel may have deprived Schell of his Sixth Amendment rights. Furthermore, failure to consult a fingerprint expert could constitute ineffective assistance of counsel in this case. We therefore remand this case to the district court for a hearing as to whether Schell received ineffective assistance of counsel. This hearing should address the nature of the conflict between Schell and his attorney and whether that conflict prejudiced Schell's defense.
On February 8, 1991, Emile Husinger's ("Husinger") apartment was burglarized. The burglar stacked two milk crates on top of each other and entered the apartment through a louvered window more than six feet off the ground. Two of the louvered window panes had been removed and were placed on a microwave in the apartment. On one of the louvered panes police discovered a fingerprint that matched one of Schell's fingerprints. Based on that fingerprint, Schell was indicted for first degree residential burglary.
A public defender was appointed to defend Schell. Two days before trial, Schell's attorney informed the court that a conflict had arisen between herself and Schell about how to prepare the defense and that Schell wanted the court to appoint substitute counsel. The trial court did not rule on this motion, presumably because Schell was not present in the courtroom. During the next two days, Schell's case was transferred to a different judge, and the motion requesting substitute counsel was never addressed. When Schell asked his attorney about the motion for substitute counsel, she told him that the motion must have been denied because she was still his attorney.
At trial, Schell was represented by the same public defender and was convicted. On appeal, Schell argued that the trial court erred in failing to hold a hearing on his motion for substitute counsel. The California Court of Appeal affirmed Schell's conviction, holding that Schell had waived or abandoned his motion for substitute counsel. Schell's petition for review with the California Supreme Court was denied.
Schell filed a petition for writ of habeas corpus in California state court. That petition was denied and the California Court of Appeal and California Supreme Court both denied his petition.
Schell then filed this petition in federal court. Based on the report of a magistrate judge, the district court denied his petition, and this appeal followed.
The district court's denial of a 2254 habeas petition is reviewed de novo. Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998). Because Schell filed this petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the provisions of the Act do not apply to this case. Jeffries v. Wood, 114 F.3d 1484, 1493-94 (9th Cir. 1997) (en banc); accord Lindh v. Murphy, 521 U.S. 320, 335-36, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997).
Schell argues that his conviction was based on insufficient evidence and therefore violated his due process rights. "There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Nelson, 137 F.3d 1094, 1103 (9th Cir. 1998). In order to establish sufficient evidence, "the prosecution need not affirmatively 'rule out every hypothesis except that of guilt.'" Wright v. West, 505 U.S. 277, 296, 120 L. Ed. 2d 225, 112 S. Ct. 2482 (1992) (plurality opinion) (quoting Jackson v. Virginia, 443 U.S. 307, 326, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)). Moreover, "a reviewing court 'faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" 505 U.S. at 296-97 (quoting Jackson, 443 U.S. at 326).
To support his claim that one fingerprint 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 prior to the crime. The defendant's fingerprints were discovered, among other fingerprints, on one of the posts. Those fingerprints were the only evidence linking the defendant to the crime. In addressing the defendant's claim that the fingerprint evidence alone was insufficient to support his conviction, we noted that:
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 (citations omitted). In Mikes, we held that the fingerprint evidence was insufficient to support a conviction, because the turnstile posts had been in a public place shortly before the crime.
The same issue was raised in Taylor v. Stainer, 31 F.3d 907 (9th Cir. 1994). In Taylor, the victim was killed in her apartment. Police believed that the assailant had entered the apartment through the kitchen window. On the bottom interior edge of the windowsill, the police discovered a fingerprint that matched Taylor's. The fingerprint was the only evidence linking Taylor to the crime. We held that the fingerprint constituted sufficient evidence to support the conviction because the inside of the victim's windowsill was not a public place and unlike the turnstile posts in Mikes, the fingerprint on the inside of the windowsill could not have been placed there at any time except during the commission of the crime. Id. at 909-10.
The key distinction between Mikes and Taylor is the location of the fingerprint. In this case, the fingerprint was obtained from the interior of one of the two lower panes of a louvered window. The window was more than six feet off the ground, in a gated yard not near a public walkway. As in Taylor, the jury in this case could have reasonably inferred that the fingerprint was not placed on the inside of the window prior to the commission of the burglary.
In an attempt to align his case with Mikes, Schell argues that the louver pane is removable and replaceable, and Schell's fingerprint might have been placed on the pane before it was purchased by Husinger. This argument is unsupported by the record and fails to prove insufficient evidence. See Taylor, 31 F.3d at 910 (). Moreover, Husinger testified that she washed the windows every six months and nothing in the record suggests that the pane had been purchased in the last six months. Although Schell is not required to prove how his fingerprint got on Husinger's window pane, his argument can only explain the fingerprint "through far-fetched, unsupported speculation." See id. at 910. Viewing these facts in the light most favorable to the State, we hold that a reasonable jury could find Schell guilty beyond a reasonable doubt.
Schell argues that the California trial court violated his Sixth Amendment right to counsel by failing to rule on his motion requesting substitute counsel. Because the denial of a motion to substitute counsel implicates the defendant's Sixth Amendment right to counsel, it is properly considered in a habeas petition. Bland, 20 F.3d at 1475.
The State argues that Schell waived and abandoned this claim by failing to reassert it before the state court prior to trial. Since the motion was...
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