Stouffer v. Reynolds

• Decision Date: 07 June 2000
• Docket Number: No. 99-6327,99-6327
• Parties: (10th Cir. 2000) BIGLER JOBE STOUFFER, II, Petitioner-Appellee, v. DAN REYNOLDS, Respondent-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1231

214 F.3d 1231 (10th Cir. 2000)

BIGLER JOBE STOUFFER, II, Petitioner-Appellee, v. DAN REYNOLDS, Respondent-Appellant.

No. 99-6327

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 7, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-95-401-C)

Robert L. Whittaker, Assistant Attorney General (W. A. Drew Edmondson, Attorney General, with him on the brief), Oklahoma City, Oklahoma, for Respondent-Appellant.

Robert R. Nigh, Jr. Tulsa, Oklahoma, for Petitioner-Appellee.

Before EBEL, PORFILIO,and KELLY, Circuit Judges.

PORFILIO, Senior Circuit Judge.

This case is before us for a second time. On the first occasion, we vacated the order of the district court denying habeas corpus on certain Sixth Amendment claims and remanded the case for further hearing. Stouffer v. Reynolds, 168 F.3d 1155 (10th Cir. 1999). On remand, the district court entered a memorandum opinion and order based upon supplemental authorities and factual stipulations filed in writing by the parties. The court concluded Petitioner Stouffer was denied effective assistance of counsel at both the trial on the merits as well as the subsequent penalty phase and granted a writ of habeas corpus conditioned upon a grant of new trial in state court within 120 days. The Appellant (Respondent or State) now appeals contending Mr. Stouffer has failed to show prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984); therefore, the district court erred in its judgment. We believe the district court clearly and properly concluded Mr. Stouffer was prejudiced by the unexplained and unsupportable ineptness of trial counsel; therefore, we affirm.¹

On appeal, the State makes a rather remarkable two-stage argument. Having entered into detailed stipulations of fact in the district court, it nonetheless contends the court erred in considering the facts agreed upon in the stipulations because they constituted "new evidence" that had not been raised in the state court. Thus, the State argues, the district court violated the exhaustion rule of 28 U.S.C. 2254(b). The State then maintains if we conclude the evidence was not subject to exhaustion, those facts fail nonetheless to support Petitioner's burden of showing prejudice as required by Strickland. We see no merit in either argument.

At best, the State's exhaustion argument is merely formalistic. We find it sophistic for the State to maintain the district court should have disregarded facts which, by stipulating, the Respondent clearly and unequivocally admitted were true, particularly when those facts were central to the issue before the district court. As we shall later discuss, the facts contained in the stipulation are a road map leading to the inescapable conclusion Petitioner's trial counsel inexplicably failed to provide a constitutionally adequate defense.

The State now argues it objected to the admission of the stipulated facts when, in the pre-trial order it joined, the State asserted: "any new evidence which is presented in the evidentiary hearing is subject to the exhaustion rules of 28 U.S.C. 2254." That generalized legal argument notwithstanding, it is inescapable the State entered willingly and without objection into the stipulations of fact. Indeed, during oral argument in this court, counsel for the State admitted he was neither coerced into stipulating nor did he ask the district court for an evidentiary hearing during which the stipulated facts could be further considered. Consequently, had there been an exhaustion requirement, we believe the State waived it by stipulating without objection.

When considered in the light of the rest of the record, the State's argument rings even more hollow. Petitioner asked the district court to hold the remanded proceeding in abeyance while he attempted to present this "new evidence" to the state court. Yet, in reliance upon an order of the Oklahoma Court of Criminal Appeals directing its clerk "not to accept any more filings from [Mr. Stouffer]," the district court denied abeyance on the ground that "additional filings in state court on petitioner's behalf will be futile." When this finding is coupled with the other evidence in the record showing Mr. Stouffer's vain attempts to obtain an evidentiary hearing² on the subject of the adequacy of his trial counsel during state post-conviction proceedings, we see no error in the district court's consideration of the stipulated facts.³

The State next argues Petitioner failed to carry his burden of proving he was prejudiced by the failures of his trial counsel. It contends that burden exceeds merely showing trial counsel's shortcomings had "some conceivable effect on the outcome," and requires evidence that but for those shortcomings the outcome would have been different. Arguing this judgment must be made in the context of all the evidence presented, the State maintains the evidence of Mr. Stouffer's guilt was great; thus, the possibility of defense counsel's constitutional inadequacy is minimal.

Against that backdrop, the district court found a plethora of facts which emanated from the stipulations and the record, all of which demonstrate the effect of trial counsel's inadequacies was substantial.

First, during the guilt phase, defense counsel made these omissions or errors:

1. He never made an opening statement. He initially reserved a statement later in an affidavit claiming this was to "maintain the secrecy of the defense theory to prohibit the State from countering the theory during [its] case." Nonetheless, he did not take the opportunity to explain that theory by exercising his reserved option and making a statement at the opening of the defense case.

2. Defense counsel failed to lay proper grounds for admission into evidence a certified copy of an exhibit impeaching a key prosecution witness. The district court noted this ineptitude was exacerbated by counsel's failure to lay a proper foundation for introduction of additional impeaching evidence.

3. Defense counsel "exhibited ineptness at direct questioning without use of leading questions," later asking the state court "how to phrase a question in a non-leading manner."

4. Both defense counsel were unable to conduct effective cross-examination of the State's witnesses. ( Indeed, we have already noted their approach to cross-examination not only failed to point out inconsistencies in the testimony of prosecution witnesses, but several times served to bring out even greater detail and emphasize incriminating evidence. Stouffer, 168 F.3d at 1164-65.)

5. "Both defense counsel presented closing arguments which were ineffective at proffering any semblance of a defense theory." (We have already noted these arguments were "irrelevant historical narrative" which added nothing to the defense. Id. at 1165.)

6. Mr. James, who was asked to "second chair" one week before the state trial, "conducted no pretrial preparation" for the purpose of examining witnesses, nor did he "speak with petitioner at any time concerning petitioner's version of events." Notwithstanding this lack of preparation, Mr. James conducted the cross-examination of "four of the State's key forensic experts." Mr. James made no attempt to interview these witnesses before trial and prepared for cross-examination only by reading their reports "during trial."

7. Mr....