U.S. v. Stevens, s. 91-3374

• Decision Date: 26 October 1992
• Docket Number: 92-3005,Nos. 91-3374,s. 91-3374
• Citation: 978 F.2d 565
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steve STEVENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 565

978 F.2d 565

UNITED STATES of America, Plaintiff-Appellee, v. Steve STEVENS, Defendant-Appellant.

Nos. 91-3374, 92-3005.

United States Court of Appeals Tenth Circuit.

Oct. 26, 1992.

Thomas E. Foster, Foster & Foster, Overland Park, Kan., for defendant-appellant.

Leon J. Patton (Lee Thompson, U.S. Atty., with him on the brief), Asst. U.S. Atty., Kansas City, Kan., for plaintiff-appellee.

Before LOGAN, TACHA, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Steve Stevens appeals from the judgment of the United States District Court for the District of Kansas denying his motion for a new trial and his subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

On October 24, 1990, Steve Stevens, then incarcerated in the Wyandotte County Detention Center, was indicted for aiding and abetting the attempted escape of Daryl S. Guzman, a fellow inmate, in violation of 18 U.S.C. § 751(a). Upon Stevens' request, the district court appointed Robert E. Jenkins to serve as Stevens' counsel. Jenkins was counsel for Stevens during the jury trial, which was held on January 28 and 29, 1991. The jury returned a guilty verdict. The court scheduled sentencing for April.

On March 21, 1991, the government learned that the United States District Court for the District of Kansas had disbarred Jenkins on January 21, 1991, seven days before Stevens' trial. The district court found that neither Stevens nor Jenkins was aware of the disbarment until March 23, 1991, when the clerk's office belatedly notified Jenkins of his disbarment. On March 29, 1991, the court appointed Thomas E. Foster as Stevens' new counsel.

Foster filed motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) and for a new trial pursuant to Federal Rule of Criminal Procedure 23. In its Memorandum and Order entered November 8, 1991, the court concluded that it lacked jurisdiction to rule on these motions because they were filed more than seven days after the jury's discharge. Nonetheless, the court "out of an abundance of caution" proceeded to the merits and denied relief under each motion.

Stevens subsequently filed a motion pursuant to 28 U.S.C. § 2255 asking the court to vacate and set aside his conviction and to grant a new trial. Stevens argued that such relief was appropriate in light of alleged violations of his rights under the Fifth and Sixth Amendments. Stevens first argued that his Sixth Amendment rights were violated because he received ineffective legal assistance from Jenkins, his first appointed counsel. In that regard, Stevens argued that Jenkins' legal assistance was per se ineffective because he had been disbarred. Alternatively, Stevens argued Jenkins' legal assistance was constitutionally defective under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finally, Stevens alleged that his Fifth Amendment rights were violated by an evidentiary error by the district court and by prosecutorial misconduct. The district court denied all of Stevens' claims for relief.

On appeal, Stevens challenges both the district court's refusal to hear his post-trial motions and its denial of his claims under the Fifth and Sixth Amendments. We affirm the district court's denial of Stevens' constitutional claims and the court's dismissal of Stevens' motion for judgment of acquittal. We also agree that, on the merits, Stevens was not entitled to a new trial and affirm that result for substantially the reasons given in the district court's Memorandum and Order of November 7, 1991.

II.

Stevens advances two theories in support of his claim that he was denied effective assistance of counsel in violation of the Sixth Amendment. He first renews his argument that the appointment of a disbarred attorney amounts to a per se violation of the Sixth Amendment right to counsel. Stevens alternatively argues that Jenkins' assistance was inadequate under the rule announced in Strickland.

A. Per Se Ineffective Assistance of Counsel

This case requires us to decide whether the representation of a criminal defendant provided by a disbarred attorney constituted constitutionally ineffective assistance of counsel per se where no one involved in the proceedings was aware of the disbarment, the attorney included. We hold that the legal assistance provided by Jenkins was not per se ineffective under the Sixth Amendment.

The Ninth Circuit has twice rejected a per se rule of ineffectiveness flowing from an attorney's disbarment. First, in United States v. Hoffman, 733 F.2d 596 (9th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984), the Ninth Circuit eschewed a per se rule where a Florida attorney was disbarred in his home state while in trial in federal district court in Arizona. Although his Arizona license was suspended automatically as a result of the Florida discipline, the court held that no per se rule obtained and stated that a party pursuing a claim of ineffective assistance must identify actual and prejudicial errors by counsel. Id. at 599-601, 603. The Ninth Circuit reaffirmed that view in United States v. Mouzin, 785 F.2d 682, 696-98 (9th Cir.), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986).

The Second Circuit also has rejected a per se rule of ineffectiveness where a licensed attorney is unknowingly disbarred immediately before or during trial. In Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir.1988), the defendant's lawyer was disbarred on the second and final day of a pretrial hearing regarding the admissibility of an allegedly coerced confession. The lawyer withdrew upon learning of the disbarment later that day. Waterhouse contended that he was deprived of his Sixth Amendment right to counsel because he was represented by a disbarred lawyer for that one day of the pretrial proceedings. The court disagreed and distinguished Solina v. United States, 709 F.2d 160 (2d Cir.1983), which had established a per se ineffectiveness rule where the defective counsel had never been admitted to practice in any state. The court stated that the Solina rule derived from conflict of interest concerns rather than competence, concluding that a "phony" attorney might compromise his advocacy for fear of being exposed. Waterhouse, 848 F.2d at 383. Because the Waterhouse attorney had been licensed and did not continue his representation after discovering his disbarment, the court found no inherent conflict of interest and refused to apply the Solina rule. Id.

In this case, Stevens' counsel was still admitted to practice in Kansas, and to his knowledge was still admitted to practice before the Kansas federal district court. Indeed, all present in the courtroom at the time of trial thought that Stevens' counsel was a member of the bar of that court. We hold that where, as here, a licensed attorney is disbarred without notice, that attorney's representation is not per se ineffective.

B. Ineffective Assistance Under Strickland

Although Stevens' assistance was not per se ineffective, we still examine whether that assistance was in fact ineffective. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that the effectiveness of counsel hinges on the twin elements of error and prejudice. Id. at 687, 104 S.Ct. at 2064. In United States v. Voigt, 877 F.2d 1465 (10th Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989), we articulated the following standard for evaluating those elements:

First, it must be shown [that] counsel committed serious errors so as to not be functioning as the "counsel" provided by the Sixth Amendment. To determine whether counsel's performance comported with the Sixth Amendment, the inquiry is whether the attorney's conduct [was] reasonable in light of all the circumstances of the case. This is an objective standard based on whether the reasonable defense attorney would act in the same manner as the defense counsel in the situation being analyzed. Second, it must be shown that counsel's performance was prejudicial to the defense. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Id. at 1467-68 (citations omitted); see also United States v. Rantz, 862 F.2d 808, 810-11 (10th Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1554, 103 L.Ed.2d 857 (1989).

While couched in several arguments, Stevens asserts that prejudice arose from Jenkins' allegedly inadequate consultations with Stevens, his failure to move to sever Stevens' and Guzman's trials, and his handling of the fingerprint evidence. The record reveals that Jenkins met with the defendant several times. Stevens only claim of prejudice in that regard arises from Jenkins' alleged failure to inform the defendant of his Fifth Amendment right not to testify. The district court, however, did not believe Stevens, instead finding that Jenkins advised Stevens to testify because he believed Stevens to be innocent and because Stevens indicated his strong personal desire to take the stand and tell his story. This was a reasonable decision and we thus discern no error arising from Jenkins' consultations with Stevens.

We need not scrutinize under the "error" prong Jenkins' actions regarding severance and the expert testimony because we find that they cannot be said to have prejudiced Stevens in the outcome of his trial. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; see also United States v. Jones, 852 F.2d 1275, 1277 (10th Cir.1988). Based on our review of the evidence, we find no reasonable probability that, but for the remaining alleged errors, the result...