Court Denies Habeas Relief Based Upon Speculation About Why Counsel Didn't Call Witness At Trial
Sa'Ra v. Raemisch, 2013 WL 4516946 (8/27/13) (Col.) (unpub'd) - It was reasonable for the state appellate court to conclude counsel performed reasonably when she decided not to call a witness who would have testified that the alleged rape victim lied about the extent of her contacts with the petitioner after the alleged rape and admitted she never was raped, but fabricated the charge to punish the petitioner for an affair he was having with someone else. At the state evidentiary hearing, counsel could not remember why she did not call the witness, but cited the notion that an attorney should not call witnesses that would be harmful to the client. The 10th speculated that perhaps counsel was afraid the testimony would have revealed the petitioner was incarcerated and violated institutional rules against 3-way calls - it was during such a call that the witness heard the victim's admissions. It didn't matter whether counsel ever applied that reasoning. It was enough that that could have been an objectively reasonable basis for not calling the witness. And anyway the petitioner had not shown prejudice because his defense was strong enough without the witness's testimony.