United States v. Kaufman
| Decision Date | 01 August 2011 |
| Docket Number | CRIMINAL ACTION No. 04-40141-01 |
| Court | U.S. District Court — District of Kansas |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ARLAN DEAN KAUFMAN, Defendant. |
UNITED STATES OF AMERICA, Plaintiff,
v.
ARLAN DEAN KAUFMAN, Defendant.
CRIMINAL ACTION No. 04-40141-01
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Dated: August 1, 2011
Before the court are defendant's submissions pursuant to 28 U.S.C. § 2255 and the government's responses: Docs. 591, 603, 606, 606, 607, 608, 609, 610, 612, 614 and 615.
The purpose of a motion made pursuant to 28 U.S.C. § 2255 is to correct errors of constitutional dimension or fundamental errors which result in a complete miscarriage of justice. Brown v. United States, 34 F.3d 990, 991 (10th Cir. 1994). When, as here, a motion is predicated on claims of ineffective assistance of counsel, a defendant has a high hurdle to overcome:
"The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Williamson [v. Ward], 110 F.3d 1508, 1513-14 (quoting Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). As the Supreme Court established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to succeed on this claim, [a defendant] must show that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced thereby, which means that he must show a reasonable probability that the outcome of the trial would have been more favorable to him, absent the errors of trial counsel. See, e.g., Foster v. Ward, 182 F.3d 1177, 1184
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(10th Cir. 1999). In evaluating claims of this nature, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
United States v. Holder, 410 F.3d 651, 654 (10th Cir. 2005), aff'd after remand, No. 06-7071, 2007 WL 2753055 (10th Cir. Sept. 19, 2007).
The two-part burden which a defendant must meet in order to prevail on an ineffective assistance of counsel claim was summarized in United States v. Chavez-Marquez, 66 F.3d 259 (10th Cir. 1995):
To prevail on this claim, defendant must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064; see also Romero v. Tansy, 46 F.3d 1024, 1029 (10th Cir.), cert. denied, [515] U.S. [1148], 115 S. Ct. 2591, 132 L.Ed.2d 839 (1995). Under the second prong, defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995).
Id. at 262. The failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Strickland, 466 U.S. at 700, 104 S. Ct. at 2071. "The Supreme Court has observed that often it may be easier to dispose of an ineffectiveness claim for lack of prejudice than to determine whether the alleged errors were legally deficient." United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993). A defendant's proof must overcome the "strong presumption" that counsel was effective. Id. Strategic choices of attorneys are given great deference and a court will not question tactical decisions of trial counsel. Trial strategies necessarily evolve without the benefit of
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hindsight. A high level of deference is afforded to the reasonableness of counsel's performance in light of all the circumstances at the time. See United States v. Dean, 76 F.3d 329, 334 (10th Cir. 1996); see also Williamson v. Ward, 110 F.3d 1508, 1513-14 (10th Cir. 1997). The bottom line is that a defendant who claims his lawyer's performance was deficient must show the performance was "completely unreasonable, not merely wrong." Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010) (citing Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999), cert. denied, 528 U.S. 1167 (2000)).
The standard required to prove ineffective assistance of appellate counsel is, if anything, more strict than for trial counsel. As the court observed in Upchurch v. Bruce, 333 F.3d 1158, 1163 (10th Cir. 2003), cert. denied, 540 U.S. 1050 (2003):
Claims of appellate-counsel ineffectiveness are often based on counsel's failure to raise a particular issue on appeal. Appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Although it is possible to bring a Strickland claim based on counsel's failure to raise a particular issue, it is difficult to demonstrate that counsel was incompetent.
(Internal citations and quotations omitted). Indeed, the process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is th hallmark of effective appellate advocacy. United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (internal citations and quotations omitted). Obviously, appellate counsel cannot be found ineffective for failing to raise claims which the record demonstrates have no merit. See Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998),
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cert. denied, 525 U.S. 1151 (1999) (citing United States v. Cook, 45 F.3d 388 (10th Cir. 1995)). Appellate counsel will be deemed ineffective only if he fails to assert a "dead-bang winner," i.e., "an issue which was obvious from the trial record . . . and one which would have resulted in a reversal on appeal." Cook, 45 F.3d at 395. See also Moore v. Gibson, 195 F.3d 1152, 1180 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000).
The following quotation is especially applicable in view of the nature and number of claims of ineffective assistance of leveled by defendant's current lawyers at his trial and appellate counsel:
It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.
(From Citizenship in a Republic, a speech given in 1910 by President Theodore Roosevelt).
Someone looking for a shortcut to what this case was about undoubtedly will read the Tenth Circuit's opinion: United States v. Kaufman, 546 F.3d 1242 (10th Cir. 2008), cert. denied, Kaufman v. United States, 130 S. Ct. 1013 (2009). The opinion describes some of the deplorable conditions at Kaufman House, the facilities where the "residents" lived and where defendant and his wife practiced their cruel and illegitimate "therapy" methods. It also recounts some, but
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not all, of the serious mental and emotional problems of the residents, several of whom suffered from schizophrenia, a condition described by no less distinguished mental health professional, Walter Menninger, M.D. as "the cancer of mental illness." But what the opinion does not do, and in truth can never do, is adequately depict the way several of the residents described their "treatment" by defendant and his wife; their apprehension and fear, even in the safe confines of a courthouse. No written opinion can portray the arrogant, evil, non-repentant persona displayed by sex-pervert Arlan Kaufman. It was these and other problems, with which trial counsel were faced.
Who are the counsel whose performance is now so roundly criticized by lawyers who attended not one minute of any proceedings in this court and who did not represent defendant on appeal? Throughout the pretrial and trial proceedings, defendant and his wife were represented by retained, seasoned defense counsel who have earned well-deserved reputations as effective advocates in both state and federal courts in a wide variety of cases. Arlan Kaufman's counsel previously had represented Kaufman in a case which ultimately came before the Kansas Supreme Court: Kaufman v. Kansas Department of SRS, 248 Kan. 951, 811 P.2d 876 (1991). It is hard to imagine how both defendants could have been represented by more experienced, competent counsel. Each defendant effectively benefitted from the representation of two counsel because their defenses did not conflict in any way. Arlan Kaufman's appellate counsel, whose conduct is also criticized, has been a federal public defender since 1995 who regularly appears in the Tenth Circuit.
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