In this hаbeas corpus proceeding, the United States Magistrate concluded that the petitioner had not been denied effective assistance of сounsel. The magistrate’s recommendation was adopted as the opinion of the district court, and habeas corpus relief was denied.
Oral argument was heard in this case in Montgomery, Alabama on December 1, 1986. The record, briefs, and arguments of counsel have been carefully considered. We affirm the dеcision of the district court *700 adopting the Recommendation of the magistrate, attached hereto as an appendix.
AFFIRMED.
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION
PATRICIA ANN CARTER, Petitioner, vs. KATHLEEN HOLT, Respondent.
CIVIL ACTION NO. 85-0771-C-S
Jan. 2, 1986.
RECOMMENDATION OF THE MAGISTRATE
This is аn action under 28 U.S.C. § 2254 in which Petitioner attacks her 1983 murder conviction and sentence of twenty-five years imprisonment, imposed in the Circuit Court of Mobile County. Petitioner advances the single claim that her counsel rendered constitutionally ineffective assistance in advising her to waive a jury trial.
At the time of the trial, Petitioner was twenty-seven years old. She had no prior convictions and no prior arrests. She had been working at the American Red Cross Center in Mobile for apprоximately four years prior to trial and the Red Cross continued to employ her after her indictment. She had available as character witnesses at trial а number of employees of the Red Cross. Petitioner has a high school education and three months of college.
Petitioner shot and killed one LaToniа Williams. The decedent and Petitioner were rivals for the affection of Robert Williams. Robert Williams was the father of Petitioner’s three children, but Williams and Petitionеr had never been married. After the birth of the third child, Robert Williams married the decedent. Petitioner and decedent had a number of arguments and, according to Pеtitioner, the decedent had over a long period harassed Petitioner and threatened her because Petitioner continued to see Robert Williams at various times.
Petitioner waived a jury trial at the advice of her trial counsel. The evidence is clear that Petitioner was a completely cooperative client, relied entirely on counsel’s advice regarding how to defend the case, and agreed to whatever course counsel recommended. Trial counsel, Donald Brutkiewicz, Jr., testified at the hearing in this case regarding his reasons for the jury trial waiver. Those reasons were, in essence, аs follows: It was undisputed that Petitioner fired the shot which killed the decedent. Counsel saw in the evidence no meaningful possibility of a plea of self-defense. That being true, there was little ground for a charge on a lesser-included-offense. Also, because there was no basis for a self-defense argument, there was nо basis for introduction of evidence regarding prior difficulties between Petitioner and the decedent. In light of those restrictions, and the general tendency tо enforce evidentiary rules more stringently in a jury trial, counsel foresaw that a trial to a jury would likely present to the jury a picture of cold-blooded murder.
Cоunsel discussed, with the permission of the District Attorney, the possibility of a non-jury trial with the scheduled trial judge, Honorable Ferrill McRae. It was counsel’s desire, which was agreed to by Judge McRae, to have in effect a combined liability/punishment non-jury trial, which would allow the trial judge to hear all the evidence regarding the past difficulties between Petitioner and decedent in connection with his adjudication of guilt. Counsel’s belief was that this format would lead the trial judge, whether or not he cоuld find Petitioner guilty of a lesser-included-offense, to impose a sentence consistent with a conviction for manslaughter. In essence, counsel concluded that Petitioner was going to be found guilty of some form of homicide and that the likely punishment would be less in a bench trial. He therefore recommended to Petitioner that jury trial be waived.
For some reason not explained by the record, Judge McRae did not hear the case. *701 The trial was transferred to Honorаble James D. Sullivan, a District Judge temporarily sitting as a Circuit Judge. Mr. Brutkiewicz was told by Judge McRae that Judge McRae’s agreement regarding the trial format had been communicated to Judge Sullivan. Following the bench trial, Judge Sullivan found Petitioner guilty of murder and imposed a twenty-five year sentence. Petitioner later sought a new trial оr sentence reduction, which motion was denied by Judge McRae.
One unarticulated premise of Petitioner’s case is that at the time he imposed the twenty-fivе year sentence, Judge Sullivan was under investigation for fixing criminal cases, that he knew he was under investigation, and that the sentence imposed in this case was рart of an effort by Judge Sullivan to create a public image of “toughness” inconsistent with the claims that he was fixing criminal cases. Judge Sullivan was subsequently indicted and convicted of those charges in this Court.
Trial counsel’s determination that the “prior difficulties” evidence could not be presented to a petit jury was probably erroneous. The trial transcript (record at 65, 73, 75-76) contains testimony which would create some factual basis for an assertion that Petitioner fired the shоt in order to scare Williams and decedent because she was fearful of physical attack by them. Under Alabama law, a criminal defendant is entitled to а charge on lesser-included-offenses if there is any evidence, no matter how weak, that would support such a charge.
E.g., [Chavers] v. State,
A criminal defendant is constitutionally entitled to the effective assistance of counsel. In determining a claim of ineffectiveness, the Court must determine whether in light of all the circumstances, the claimed omissions were outside the wide range of professionally competent assistance and whether there is a reasonable probability that, but for the unprofessional errors, the results in the proceeding would have been different.
Strickland v. Washington,
Most claims of ineffective assistance relate .to alleged negligent omissions to act by attorneys. When, as here, the conduct complained of was a conscious and apparently informed choice between alternatives, a tactical judgment will almost never be overturned on habeas corpus.
Griffin v. Wainwright,
*702 The attached sheet contains important information regarding objections to this Recommendation.
/S/ PATRICK H. SIMS
UNITED STATES MAGISTRATE