Starkweather v. Smith

• Decision Date: 23 July 2009
• Docket Number: No. 08-2354.,08-2354.
• Citation: 574 F.3d 399
• Parties: Jay STARKWEATHER, Petitioner-Appellant, v. Judy P. SMITH, Warden, Oshkosh Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

574 F.3d 399

Jay STARKWEATHER, Petitioner-Appellant, v. Judy P. SMITH, Warden, Oshkosh Correctional Institution, Respondent-Appellee.

No. 08-2354.

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2008.

Decided July 23, 2009.

As Corrected on Denial of Rehearing August 7, 2009.

Robert R. Henak, Attorney, Henak Law Office, Milwaukee, WI, for Petitioner-Appellant.

J.B. Van Hollen, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

Jay Starkweather was convicted of one count of first degree murder, four counts of attempted murder and one count of reckless endangerment. After his conviction became final, Starkweather commenced this habeas proceeding, claiming that he had been denied effective assistance of counsel. The district court denied Starkweather's petition. We affirm.

I. BACKGROUND

A. Facts

On June 6, 1995, Jay Starkweather set out on a shooting rampage that ended only after he was seriously injured in a gunfight with the police. Starkweather had grown increasingly paranoid, imagining that various acquaintances were conspiring to cheat his family out of his father's land. On the morning of the shootings, Starkweather apparently became convinced that his friend Marty Austreng was part of the conspiracy. The two quarreled, and when the argument escalated Starkweather drew a gun and shot both Austreng and Wayne Kittleson, another friend who had been sitting nearby. Austreng managed to escape, and Starkweather went chasing after him.

Starkweather never managed to find Austreng. In the course of searching for him, Starkweather broke into a neighbor's apartment. The neighbor later testified that Starkweather was carrying a gun in each hand and that he looked "insane." Next, Starkweather went to a trailer owned by Ted Demery. Starkweather's neighbor testified that she heard a single gun shot coming from the direction of Demery's trailer. A sheriff's deputy who had just arrived on the scene also testified that he heard a single shot coming from the direction of Demery's trailer.

The police intercepted and exchanged fire with Starkweather at Demery's trailer. After the police shot and injured Starkweather, they entered the trailer and found Demery lying in a pool of fresh blood. Demery had died of a single gunshot to the face at close range. The gun with which he had been shot was lying at Starkweather's feet. A second gun was found near Starkweather's left hand.

B. Proceedings Below

A bifurcated trial was held in Wisconsin in 1996. Starkweather's trial counsel encouraged him not to testify in his own defense during the first phase of the trial—the "guilt phase"—telling him that his testimony would be more appropriate in the second, "responsibility phase." Based on this advice, Starkweather waived his right to testify during phase I, stating that he understood that his right to testify was absolute and that he understood the benefits and costs of exercising this right.

After he was found guilty at the conclusion of phase I of the trial, Starkweather protested that his decision to waive his right to testify during phase I was not fully voluntary, explaining:

with all due respect to my counsel and the proceedings and everything, I understand [counsel is] doing the best he can, and according to his wishes, I did not testify during the first phase against—it was against my wishes, but I followed his direction ... There's been a lot of accusations hurled at me back and forth, and I'm willing to stand up and be responsible for what I believe is—for my actions. I am not afraid to do that, but what I'm afraid is I'm going to be shut out of my only chance in court. I'm terrified. I want to be able to know I'm going to be able to stand up and tell my side of the story.

As it happened, Starkweather was able to tell his side of the story, but not during the phase of the trial when the jury evaluated his guilt or innocence. During phase II, Starkweather testified that he shot Austreng and Kittleson in self-defense, that he did not kill Demery but instead had discovered him already-dead earlier that morning and that he, Starkweather, was attempting to surrender to the police when he was shot. At the conclusion of phase II, the jury found that Starkweather was mentally ill but not insane, and the court sentenced him to life plus five years.

II. DISCUSSION

In state court post-conviction proceedings, Starkweather argued (1) that his trial counsel rendered ineffective performance by failing to properly advise him of his right to testify and failing to introduce putatively exculpatory evidence, and (2) that his appellate counsel rendered ineffective performance by failing to challenge the jury instructions that were given at trial.¹ The Wisconsin Court of Appeals rejected these arguments, and the district court agreed, denying Starkweather's petition for federal habeas relief. We review the decision of the last state court to adjudicate a habeas petitioner's claims. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). Our review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214.

Under the AEDPA, a federal court may grant habeas relief only if the state court's adjudication of the petitioner's constitutional claims was based on unreasonable fact-finding or was contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 376-77, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Because Starkweather argues that he was denied his Sixth Amendment right to effective assistance of counsel, the relevant federal standard is provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a habeas petitioner to show that (1) counsel's performance was objectively unreasonable and (2) counsel's errors affected the outcome of the proceeding. Id. at 688, 694, 104 S.Ct. 2052; Watson, 560 F.3d at 690. In the present case, the Wisconsin Court of Appeals found that Starkweather failed to satisfy the "performance" prong of the Strickland test, that he failed to show that his counsel's performance was objectively unreasonable. To be entitled to habeas relief, Starkweather's burden is high: he must show that the state court's decision lay "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002); see also Mendiola v. Schomig, 224 F.3d 589, 591-92 (7th Cir.2000) (holding that habeas relief under Strickland is inappropriate so long as the state court took the constitutional standard seriously and produced an answer within the range of defensible positions).

A. Right to Testify

Starkweather's most compelling argument is that his trial counsel rendered ineffective assistance by encouraging him to postpone his testimony until after the guilt phase of the trial without advising him of the basis for this advice. In effect, Starkweather argues that his trial counsel's failure to explain why he was advising Starkweather to postpone his testimony until after the guilt phase of the trial deprived him of the ability to make a knowing and intelligent choice as to whether to waive this right. This argument is not wholly without merit.

As a general matter, the right of a criminal defendant to testify in his or her own defense is "one of the rights that are essential to due process of law in a fair adversary process." Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (internal quotation marks omitted). This right cannot be waived without the defendant's consent. See United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984) (per curiam); see also United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.1992) (en banc). Further, a waiver of a defendant's Sixth Amendment rights must be made voluntarily, knowingly and intelligently. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); United States v. Moya-Gomez, 860 F.2d 706, 731 (7th Cir.1988). Not surprisingly, therefore, a number of cases have held that incorrect advice that induces a defendant to waive his right to testify can constitute ineffective assistance. See Foster v. Delo, 11 F.3d 1451, 1457 (8th Cir.1993), rev'd on other grounds en banc, 39 F.3d 873 (8th Cir.1994); Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992); United States v. Poe, 352 F.2d 639, 640 (D.C.Cir.1965); see also Santillan v. Beto, 371 F.Supp. 194, 196 (S.D.Tex.1974).

Of course, Starkweather has not argued that his counsel's advice was objectively incorrect, nor would such an argument be plausible here. Rather, Starkweather argues that in addition to a negative duty not to mislead, his attorney had an affirmative duty to consult with him on strategic matters. There is at least some support for Starkweather's argument that such an affirmative duty exists. For instance, the American Bar Association's Rules of Professional Conduct suggest that a lawyer has a duty not only to abide by her client's decision but also to consult with the client about that decision. See Model Rules of Prof'l Conduct R. 1.2(a) ("a lawyer shall abide by a client's decisions concerning the objectives of representation and ... shall consult with the client as to the means by which they are to be pursued."). Further, at least two circuits have stated in dicta that a criminal defense attorney has an affirmative duty to explain the basis for otherwise reasonable strategic recommendations. See Teague, 953 F.2d at 1533; Cannon, 383 F.3d at 1171. Most notably, the Eleventh Circuit, sitting en banc, has said that,

Defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify, the strategic implications of each choice ... This advice is crucial because...