Despite Sparse Mitigation Efforts by Trial Counsel, Capital Habeas Petitioner's Claims Rejected
Smith v. Workman, ___ F.3d ___, No. 05-6206 (10th Cir. 2008)
Death affirmed in habeas case. The offense was the killing of a confederate who refused to give Petitioner drugs and money. The aggravating circumstances supporting death, after a mitigation trial that took up only 6 pages of transcript, was Petitioner’s two previous violent felony convictions and the probability of his continuing threat to society. The federal district court held an evidentiary hearing on Petitioner’s claim of ineffective assistance of counsel (IAC) at mitigation.
Issues on appeal and resolution by Court:
(1) No IAC for failure to raise Ake claim during mitigation because at time of P’s trial, Ake (entitling a Defendant to psychiatric expert) only applied when the state presented psychiatric evidence of future dangerousness, and had not been extended to require an expert when state put on non-psychiatric evidence of future dangerousness, as was done in Petitioner’s trial.
(2) No IAC by appellate counsel for failing to raise Ake claim for trial court’s failure to provide psychiatrist at guilt phase when requested by trial counsel, because record supported habeas court's determination that request was for competency issues only, not for trial (sanity) purposes; cannot therefore show appellate atty would have prevailed on this issue.
(3) No mitigation phase IAC. Though a wealth of information was never uncovered by counsel about Petitioner’s rotten childhood and poor mental functioning, it was not an objectively unreasonable defense decision not to pursue this because it could have supported state’s case that Petitioner was dangerous, and because the mentally deficient Petitioner did not point counsel in the direction of mitigating evidence (what a scary cop-out). Both fed district and COA say there was much more counsel could have done to uncover and present identified, very mitigating evidence and to humanize Petitioenr–why the failure to do this does not weigh as “objectively” unreasonable is a mystery).
(4) Claim of guilt phase Brady violation is procedurally barred.
Death affirmed in habeas case. The offense was the killing of a confederate who refused to give Petitioner drugs and money. The aggravating circumstances supporting death, after a mitigation trial that took up only 6 pages of transcript, was Petitioner’s two previous violent felony convictions and the probability of his continuing threat to society. The federal district court held an evidentiary hearing on Petitioner’s claim of ineffective assistance of counsel (IAC) at mitigation.
Issues on appeal and resolution by Court:
(1) No IAC for failure to raise Ake claim during mitigation because at time of P’s trial, Ake (entitling a Defendant to psychiatric expert) only applied when the state presented psychiatric evidence of future dangerousness, and had not been extended to require an expert when state put on non-psychiatric evidence of future dangerousness, as was done in Petitioner’s trial.
(2) No IAC by appellate counsel for failing to raise Ake claim for trial court’s failure to provide psychiatrist at guilt phase when requested by trial counsel, because record supported habeas court's determination that request was for competency issues only, not for trial (sanity) purposes; cannot therefore show appellate atty would have prevailed on this issue.
(3) No mitigation phase IAC. Though a wealth of information was never uncovered by counsel about Petitioner’s rotten childhood and poor mental functioning, it was not an objectively unreasonable defense decision not to pursue this because it could have supported state’s case that Petitioner was dangerous, and because the mentally deficient Petitioner did not point counsel in the direction of mitigating evidence (what a scary cop-out). Both fed district and COA say there was much more counsel could have done to uncover and present identified, very mitigating evidence and to humanize Petitioenr–why the failure to do this does not weigh as “objectively” unreasonable is a mystery).
(4) Claim of guilt phase Brady violation is procedurally barred.
posted by Anonymous at 10:39 AM
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