Numerous IAC Claims Rejected; Death Sentence Affirmed
DeLozier v. Sirmons, 2008 WL 2780595 (7/18/08) (Published) - The Court of Appeals affirmed another death sentence. The 10th reviewed, almost always under the stringent AEDPA standard, a number of ineffective assistance of counsel claims, holding in each case that counsel was not deficient. These included:
(1) Not peremptorily challenging 2 prospective jurors and not seeking excusal for cause for another where the jurors indicated they had a hard time imagining voting for anything but death. E.g., "Q: if you were instructed to do so, could you give all punishment options fair consideration? A: Yes, but I don't like it; A: It would be real hard. I couldn't give you an honest answer."
2) failing to object to the admission of evidence of the petitioner's priors for mistreating and killing a police dog. It would have been admitted anyway.
(3) failing to call witnesses because the testimony was supposedly marginally probative or could bring up the witness's incriminatory prior statements.
(4) failing to further cross. Counsel's decisions regarding cross-examination presumptively arise from sound trial strategy and here counsel did a pretty good job of crossing and further impeachment would have produced "limited dividends."
(5) failing to challenge more the claim that the petitioner shouted to one jail inmate in front of others: "I've already killed two people before, I won't hesitate to kill you." In light of the prior statements of the non-testifying person to whom the threat was actually made, counsel could have reasonably considered it unproductive to look for other inmates who would say otherwise. It was also okay not to present evidence of the physical jail layout that might undermine the testifying witness's claim to seeing the petitioner through a tiny cell window. It might have led to conflicting evidence. It was better to not emphasize the threat and attack on cross the credibility of the witness.
(6) not objecting to cross of the petitioner. It was not a comment on silence to ask the petitioner: "how long did it take you to come up with the story you just told the jury?" The requisite manifest intent to comment on silence will not be found if some other explanation for the comment is equally plausible. Here the state was just commenting on the ridiculousness of the story.
(7) failing to present certain mitigating evidence. That claim was procedurally defaulted because the appellate lawyer, who was different than the trial lawyer, could have raised the claim on appeal and asked for a remand, which she obtained regarding a different claim. Appellate counsel acting reasonably in not raising other claims because trial counsel had presented the "gist" of the additional testimony the petitioner now claims should have been presented. Appellate counsel was also reasonable not to find an expert who would have said the petitioner's meth consumption would have given the petitioner a high potential for unprovoked violence and that his bad behavior directly reflected his horrible childhood. Unfortunately, counsel did find another expert who didn't say such helpful things. Presenting the testimony of the expert she did find would have been a "double-edged" sword, which evidence counsel is not required to put on. "Counsel is not required to keep hiring experts until the most favorable one possible is found."
Importantly, the 10th did acknowledge that a state court evidentiary hearing must be fair to deserve credit in federal court. But here the hearing was fair, despite the state judge's campaign promise to put people in jail, public opinion of the crime and the judge's "predisposition regarding counsel's performance." And: "Even if the trial judge's evaluation of the hearing evidence could be questioned on bias grounds, the petitioner points to no errors in the evidence presentation. Given that evidence, the judge's evaluation was eminently reasonable and commended itself to every later court addressing the issue." Bias? Not a problem as long as the court sounds fair and other courts agree with it.
(1) Not peremptorily challenging 2 prospective jurors and not seeking excusal for cause for another where the jurors indicated they had a hard time imagining voting for anything but death. E.g., "Q: if you were instructed to do so, could you give all punishment options fair consideration? A: Yes, but I don't like it; A: It would be real hard. I couldn't give you an honest answer."
2) failing to object to the admission of evidence of the petitioner's priors for mistreating and killing a police dog. It would have been admitted anyway.
(3) failing to call witnesses because the testimony was supposedly marginally probative or could bring up the witness's incriminatory prior statements.
(4) failing to further cross. Counsel's decisions regarding cross-examination presumptively arise from sound trial strategy and here counsel did a pretty good job of crossing and further impeachment would have produced "limited dividends."
(5) failing to challenge more the claim that the petitioner shouted to one jail inmate in front of others: "I've already killed two people before, I won't hesitate to kill you." In light of the prior statements of the non-testifying person to whom the threat was actually made, counsel could have reasonably considered it unproductive to look for other inmates who would say otherwise. It was also okay not to present evidence of the physical jail layout that might undermine the testifying witness's claim to seeing the petitioner through a tiny cell window. It might have led to conflicting evidence. It was better to not emphasize the threat and attack on cross the credibility of the witness.
(6) not objecting to cross of the petitioner. It was not a comment on silence to ask the petitioner: "how long did it take you to come up with the story you just told the jury?" The requisite manifest intent to comment on silence will not be found if some other explanation for the comment is equally plausible. Here the state was just commenting on the ridiculousness of the story.
(7) failing to present certain mitigating evidence. That claim was procedurally defaulted because the appellate lawyer, who was different than the trial lawyer, could have raised the claim on appeal and asked for a remand, which she obtained regarding a different claim. Appellate counsel acting reasonably in not raising other claims because trial counsel had presented the "gist" of the additional testimony the petitioner now claims should have been presented. Appellate counsel was also reasonable not to find an expert who would have said the petitioner's meth consumption would have given the petitioner a high potential for unprovoked violence and that his bad behavior directly reflected his horrible childhood. Unfortunately, counsel did find another expert who didn't say such helpful things. Presenting the testimony of the expert she did find would have been a "double-edged" sword, which evidence counsel is not required to put on. "Counsel is not required to keep hiring experts until the most favorable one possible is found."
Importantly, the 10th did acknowledge that a state court evidentiary hearing must be fair to deserve credit in federal court. But here the hearing was fair, despite the state judge's campaign promise to put people in jail, public opinion of the crime and the judge's "predisposition regarding counsel's performance." And: "Even if the trial judge's evaluation of the hearing evidence could be questioned on bias grounds, the petitioner points to no errors in the evidence presentation. Given that evidence, the judge's evaluation was eminently reasonable and commended itself to every later court addressing the issue." Bias? Not a problem as long as the court sounds fair and other courts agree with it.
posted by Anonymous at 3:37 PM
<< Home