Woratzeck v. Ricketts

• Decision Date: 16 September 1986
• Docket Number: No. 85-2367,85-2367
• Citation: 808 F.2d 1322
• Parties: William Lyle WORATZECK, Petitioner-Appellant, v. James R. RICKETTS, and Donald Wawrzaszek, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1322

808 F.2d 1322

William Lyle WORATZECK, Petitioner-Appellant, v. James R. RICKETTS, and Donald Wawrzaszek, Respondents-Appellees.

No. 85-2367.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1986.

Decided Sept. 16, 1986.

James J. Syme, Jr., Robinson & Syme, Glendale, Ariz., for petitioner-appellant.

Crane McClennen, Dept. of Law, Phoenix, Ariz., for respondents-appellees.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE, FARRIS and BOOCHEVER, Circuit Judges.

WALLACE, Circuit Judge:

Woratzeck appeals from the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He contends that he was denied his sixth amendment right to effective assistance of counsel and his fourteenth amendment right to due process. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.

I

Leslie was a 36-year old woman who suffered from Huntington's disease, had the mental capacity of a 15-year-old, and was physically disabled. She received general assistance from her aunt, Medina, and day-to-day assistance from other friends. Leslie lived in a trailer located in a trailer park that Woratzeck was purchasing from Medina and Medina's brother. Medina made the monthly rental payments to Woratzeck for Leslie's trailer. In February 1980, Woratzeck was over $2,000 behind in his payments to the Medinas for the trailer park property. Medina therefore did not pay the February rent for Leslie's trailer.

On March 6, 1980, Leslie was killed inside her trailer, and an undetermined amount of money was taken from her. The medical examiner testified that the assailant stabbed Leslie three times, strangled her, and delivered two blows to her head. Leslie's trailer was then lit on fire.

Woratzeck was indicted by a grand jury of Pinal County, Arizona, for first-degree felony-murder, Ariz.Rev.Stat.Ann. Sec. 13-1105.A.2, arson of an occupied structure id. Sec. 13-1704, second-degree burglary, id. Sec. 13-1507, and armed robbery, id. Sec. 13-1904. A jury convicted him of first-degree felony-murder, second-degree burglary, and armed robbery, and acquitted him on the arson count. A sentencing hearing was held pursuant to Ariz.Rev.Stat.Ann. Sec. 13-703, and Woratzeck was sentenced to death on the first-degree felony-murder count and consecutive prison terms of 11.25 years and 15.75 years on the burglary and robbery counts. On appeal, the Arizona Supreme Court affirmed the convictions and sentences. See State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1982) (Woratzeck ). The trial court denied Woratzeck's motion for post-conviction relief under Ariz.R.Crim.P. 32, and the Arizona Supreme Court denied review. Woratzeck's petition for a writ of habeas corpus in federal district court was then denied, and he brought this appeal.

II

Woratzeck contends that he was denied his sixth amendment right to effective assistance of counsel because his attorney's performance during the trial and the sentencing proceeding was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (Strickland ). To obtain relief for a claim of ineffective assistance of counsel on a habeas corpus review, the petitioner must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and petitioner must also demonstrate prejudice." Butcher v. Marquez, 758 F.2d 373, 375-76 (9th Cir.1985) (Butcher ) (citing Strickland ); see Miller v. Stagner, 757 F.2d 988, 996 (9th Cir.), amended in other respects, 768 F.2d 1090 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986). Our review of counsel's performance is highly deferential: we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Darden v. Wainwright, --- U.S. ----, ----, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (Darden ); United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986). To demonstrate prejudice, Woratzeck must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The state court's findings of fact are entitled to deference pursuant to 28 U.S.C. Sec. 2254(d), and the district court's findings of fact are reviewed for clear error. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Nevertheless, whether the facts demonstrate unreasonable performance and prejudice are mixed questions of law and fact, id., that we review de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); Butcher, 758 F.2d at 376.

A.

Woratzeck first argues that his counsel's failure to request a jury instruction concerning a claim of right defense to robbery or theft constituted ineffective assistance of counsel. The claim of right defense provides that property taken by force under claim of right of ownership does not constitute robbery. State v. Hardin, 99 Ariz. 56, 59, 406 P.2d 406, 408 (1965); State v. Flores, 140 Ariz. 469, 473, 682 P.2d 1136, 1140 (Ct.App.1984). Woratzeck contends that his claim of right to rent due from Leslie negated the felonious intent required for a conviction of robbery or burglary. The state contends that it is questionable whether the claim of right defense still applies in Arizona, see Ariz.Rev.Stat.Ann. Secs. 13-1802.A.1, 13-1902.A, 13-1801.A.12; cf. State v. Lewis, 121 Ariz. 155, 157-58, 589 P.2d 29, 31-32 (Ct.App.1978) (criticizing claim of right defense to charge of robbery); that Woratzeck never presented any evidence that he took the money under a claim of right; and that the claim of right defense would not have applied to this case because Woratzeck took more money than was owed, because the amount due was unliquidated, see State v. Bonser, 128 Ariz. 95, 96, 623 P.2d 1251, 1252 (Ct.App.1981), and because Woratzeck had a claim of right to rent only from Medina.

We need not decide whether the claim of right defense presently exists under Arizona law or whether it would apply to these facts. Throughout the trial, Woratzeck maintained that he did not take money from Leslie and that he never entered her trailer on the day she was killed. He informed his attorney that it would have been impossible for him to have robbed and killed Leslie because at the very time she was robbed and killed he was burglarizing the Three G's Nursery. He never gave his attorney any reason to think that he desired to rely on any defense other than his alibi defense. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. It is apparent that a claim of right instruction would have been inconsistent with Woratzeck's alibi defense. Woratzeck's counsel was not required to request a jury instruction that was inconsistent with his trial theory. See Butcher, 758 F.2d at 377.

Woratzeck contends, however, that his counsel did not make a tactical decision not to ask for the jury instruction, see Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (there is a "wide latitude counsel must have in making tactical decisions"), but rather was unaware of the claim of right defense. It is not clear to us from the record whether Woratzeck's attorney was unaware of the defense. His attorney specifically stated that too much time had gone by to remember "why decisions were made" not to request specific jury instructions. Under these circumstances, we believe the Supreme Court has outlined the proper context within which we review this issue:

As we recognized in Strickland, "[j]udicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's perspective at the time." 466 U.S., at 689, 104 S.Ct., at 2065. In particular, "a court 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.' " Ibid., quoting Michel v. Louisiana, 350 U.S. 91, 100-101, 76 S.Ct. 158, 163-164, 100 L.Ed. 83 (1955).

Darden, --- U.S. at ----, 106 S.Ct. at 2474. Reasonably competent counsel could have elected to rely exclusively on an alibi defense. In any event, defense counsel need not be infallible or recognize and raise every possible basis for defense. See Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982); United States v. McAdams, 759 F.2d 1407, 1409 (9th Cir.1985).

We conclude that the failure of Woratzeck's counsel to request a claim of right jury instruction in response to the government's theory of the case did not fall outside the wide range of responsible professional assistance nor call into question the fundamental fairness of the state court proceeding. See Strickland, 466 U.S. at 689-90, 696, 104 S.Ct. at 2065-66, 2069.

B.

Woratzeck next contends that he was denied effective assistance of counsel because his attorney failed to request that the jury be instructed that the crime of theft is a lesser included offense of armed robbery. See State v. Celaya, 135 Ariz. 248, 251-52, 660 P.2d 849, 852-53 (1983) (Celaya ). A defendant is entitled to a lesser included offense instruction under Arizona law if the evidence suggests that the element which distinguishes the greater offense from the lesser offense is in dispute. See State v. Malloy, 131 Ariz. 125,...