West v. Seabold

• Citation: 73 F.3d 81
• Decision Date: 22 February 1996
• Docket Number: No. 95-5148,95-5148
• Parties: Charles Howard WEST, Petitioner-Appellee, v. William SEABOLD, Warden, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 81

73 F.3d 81

Charles Howard WEST, Petitioner-Appellee, v. William SEABOLD, Warden, Respondent-Appellant.

No. 95-5148.

United States Court of Appeals Sixth Circuit.

Argued Oct. 11, 1995.

Decided Jan. 9, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 22, 1996.

C. Fred Partin (argued and briefed), Louisville, KY, for Charles Howard West.

Joseph R. Johnson, Asst. Atty. Gen. (argued and briefed), Office of the Atty. Gen., Frankfort, KY, for William Seabold.

Before: MERRITT, Chief Judge; RYAN, Circuit Judge; CLELAND, District Judge. ^*

RYAN, J., delivered the opinion of the court, in which CLELAND, D.J., joined. MERRITT, C.J. (pp. 85-87), delivered a separate concurring opinion.

RYAN, Circuit Judge.

Respondent, William Seabold, appeals a judgment granting Charles Howard West's petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We reverse.

I.

The petitioner, Charles Howard West, was convicted in the Henry Circuit Court for the Commonwealth of Kentucky of the murder of James Schira and sentenced to 22 years imprisonment. He appealed to the Kentucky Supreme Court, asserting denial of due process of law because of alleged prosecutorial misconduct. The Kentucky Supreme Court recognized that the prosecutor "delivered a barrage of vilification, misleading innuendo, and outright deception," but affirmed the petitioner's conviction, concluding that under Kentucky Rule of Criminal Procedure 9.22 and case law, defense counsel's failure to move for a mistrial, after having objected to some of the improper remarks, indicated that the petitioner was satisfied with the relief that had been granted. The Kentucky Supreme Court declined to review the errors on direct appeal other than for palpable error because of the procedural default in failing to move for a mistrial.

Petitioner next filed a motion to vacate judgment, arguing that defense counsel's failure to move for a mistrial constituted ineffective assistance of counsel. The Henry Circuit Court overruled petitioner's motion, finding that the issue of ineffective assistance for failure to object had already been disposed of on direct appeal when the Kentucky Supreme Court drew the conclusion that counsel's failure to move for a mistrial was a deliberate tactical decision. On appeal, the Kentucky Court of Appeals affirmed the denial of petitioner's motion, and the Kentucky Supreme Court denied discretionary review.

In January 1994, the petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Kentucky, alleging that he was denied due process by the prosecutor's numerous improper remarks in closing argument and that he was denied effective assistance of counsel, citing his counsel's failure to object to some of the prosecutor's misconduct and failure to move for a mistrial. The magistrate judge to whom the case was assigned recommended that the petition for a writ of habeas corpus be granted, and the respondent filed timely objections. The district court overruled those objections and adopted the magistrate judge's recommendation in granting the petition for a writ of habeas corpus, with directions that petitioner be retried within 120 days.

The district court concluded that "the prosecutorial misconduct was so egregious that ... defense counsel's failure to object to many of the remarks and failure to move for a mistrial was prejudicial error of constitutional proportion." The district court further concluded that the prosecutor's improper remarks misled the jury, prejudiced the accused, were extensive, were deliberately placed before the jury, and were introduced into a case in which the strength of the evidence against the petitioner was less than overwhelming, in that all the evidence in favor of conviction was circumstantial.

II.

This court reviews a district court's decision in a habeas corpus proceeding de novo. Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 822, 133 L.Ed.2d 765 (1996). The court gives complete deference to state court findings of historical fact unless they are clearly erroneous. Id.

Kentucky Rule of Criminal Procedure 9.22 "imposes upon a party the duty to make known to the court the action he desires the court to take or his objection to the action of the court...." West v. Commonwealth of Kentucky, 780 S.W.2d 600, 602 (Ky.1989) (internal quotation marks omitted). The state court made clear that "[i]f a party claims entitlement to a mistrial, he must timely ask the court to grant him such relief." Id. A federal habeas petitioner who has failed to comply with a state's rule requiring contemporaneous objection at trial ordinarily must show "cause" for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted claim. Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). The district court found that ineffective assistance of counsel was the cause of West's procedural default. "Ordinary" attorney error does not constitute cause; however, error that amounts to the ineffective assistance of counsel under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is "cause" for procedural default. Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). To meet this test, petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense so as to render the trial unfair and the result unreliable. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. The question for reviewing courts is whether counsel's errors have likely undermined the reliability of, and confidence in, the result. Lockhart v. Fretwell, 506 U.S. 364, 368-71, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993). "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate ] judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, quoted in Smith v. Jago, 888 F.2d 399, 404-05 (6th Cir.1989), cert. denied, 495 U.S. 961, 110 S.Ct. 2572, 109 L.Ed.2d 754 (1990). In evaluating petitioner's claim, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992) (en banc ), cert. denied, --- U.S. ----, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993). Thus, the determinative issue is not whether petitioner's counsel was ineffective but whether he was so thoroughly ineffective that defeat was "snatched from the jaws of victory." See id.

Both the district court and this court must apply a presumption of correctness to state court findings of fact for habeas corpus purposes. 28 U.S.C. Sec. 2254(d). However, conclusions of law are not presumed to be correct. Smith v. Sowders, 848 F.2d 735, 738 (6th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 169, 102 L.Ed.2d 139 (1988). We have held that "[s]tate court determinations which are mixed questions of fact and law or pure questions of law are not governed by Section 2254(d)" and that "state court application[s] of constitutional legal principles ... are freely reviewable by a federal court in a habeas action." Cain v. Smith, 686 F.2d 374, 379-80 (6th Cir.1982) (footnote omitted). The issue of ineffective assistance of counsel presents a mixed question of law and fact, though any underlying historical facts found by state courts are presumed correct. Flieger v. Delo, 16 F.3d 878, 886 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994).

III.

The Kentucky Supreme Court noted that every objection by defense counsel was sustained and that the petitioner did not move for a mistrial. "Certainly the record does not suggest that [the petitioner] was unaware of the prejudicial effect of the prosecutor's remarks and strongly suggests that defense counsel's failure to move for a mistrial was a tactical decision." West, 780 S.W.2d at 603. The court was not asked to examine, and did not examine, whether the failure of counsel to move for a mistrial constituted ineffective assistance of counsel; the supreme court's determination that the record "strongly suggests that defense counsel's failure to move for a mistrial was a tactical decision" is not a finding that counsel was necessarily effective. But the supreme court did find, as a factual matter, that counsel was aware of the misconduct and made a conscious decision to proceed with the jury as impaneled. This finding is entitled to a presumption of correctness. We cannot find that counsel's strategy constituted ineffective assistance of counsel. The petitioner had retained counsel, and his attorneys made many objections, which were sustained. Although the egregious conduct of the prosecutor would be cause for concern to counsel, a competent attorney might, for a number of reasons, decide to submit the case to the impaneled jury despite the misconduct. The state's case was poorly presented; the prosecutor went so far as to change theories in closing argument. A competent attorney could conclude that the prosecutor's conduct might have thoroughly offended the jurors to the petitioner's advantage. He might also conclude that a declaration of a mistrial would only force the petitioner to endure the expense of a second trial with the added risk that the state, with full knowledge of the defense's case and with a more accomplished prosecutor, would present its case more forcefully and effectively and heighten the chance of conviction or increase the length of the probable sentence. We are in no position, on this record, to...