Richard L. Church v. Lawrence R. Kincheloe, Supt.
767 F.2d 639
9th Cir.
1985
Check Treatment

*3 stop driver to at a Church asked the cab GOODWIN, Before POOLE BOO- so that he could use the service station CHEVER, Judges. Circuit stopped the restroom. The driver cab POOLE, Judge: Although lo- requested. the restroom was approximately away 20 feet from the cated appeals L. Church the district Richard cab, locating it. He Church had trouble petition for court’s dismissal of his writ staggering physical sup- and needed corpus under 28 U.S.C. 2254. His habeas § Af- get from restroom. port to to and trial court first contention was that cab, asleep fell returning to the process in ter deprived him of due as laid down south on Montana, passed out as the cab continued (1979), by in- Interstate 5. 61 L.Ed.2d 39 (1974). § 2. Wash.Rev.Code 9A.36.020 1. Wash.Rev.Code § 9A.40.040 awoke, process he believed that violate the defendant’s due When Church of law. traveling wrong 99 S.Ct. at 2459. di- the cab was pull told the driver over and rection. He An erroneous allowing When the driver tried to turn around. presume the trier of fact to the existence proceed- that the cab convince Church disputed element of the crime renders direction,, grabbed ing irrelevant the evidence on the issue be keys and struck the driver several for the jury may cause have relied head. After the driver started times in the presumption determining rather than around, Church threatened to to turn shoot Johnson, fact. Connecticut v. Subsequently, fiancee. him and his (1983) convinced Church driver (plurality Where, however, opinion). proceeding then trial, defendant has conceded intent permitted to turn alibi, The driver was the cab insanity or self-de *4 around, fense, then and took Church his resi- the error in the instruction be Chapman considered harmless dence in Kelso. Church wrote a check for under California, fare, large and 17 tip, the added a asked the (1967). Connecticut v. John L.Ed.2d 705 talk police. driver not to to the son, 460 at U.S. 103 at 977. A S.Ct. Instruction Intent Sandstrom instruction may be considered charged Church was with two dispute harmless if intent in error is not at a requiring crimes mental state: Hamilton, re trial. See In imprisonment, requires unlawful which (9th Cir.1983). 1191 “knowingly” restrain that defendant anoth The State concedes that the instruc er person, Wash.Rev.Code 9A.40.040 § given tion by judge the trial violates the assault degree, and the second rule in Sandstrom. It contends that the requires which that the defendant “know John instruction under was harmless error ingly assault another with intent to commit son because Church and trial his counsel felony,” 9A.36.020(1)(d) a Wash.Rev.Code § dispute argues did not intent. Church that (1974). judge jury instructed the that dispute. intent was in presumes every person “the law that in sup- Our review state court record probable tends the natural and conse ports position the State’s that intent was quences their of own acts.” Church’s law disputed by Church at trial. It was not yer did not to the instruction either Church’s defense that reason of intoxi- direct trial or on the required, cation he lacked state of mind process the The due clause of Fourteenth ability “knowingly” that is the to commit the prove Amendment mandates that State restraint, the of offense unlawful every the existence of element of a criminal “knowingly” to assault with intent to com- In re beyond offense doubt. reasonable Rather, felony. strategy mit a his Winship, 25 during closing argu- and cross-examination (1970). L.Ed.2d 368 When defendant’s ment was to show that reason of intoxi- state of mind or intent is an element of an honestly thought cation and he confusion offense, the determination of that element wrong taking the driver the direction. jury by cannot be taken from the an in- that, argued He had the facts as he allowing jury presume struction the its believed, mistakenly he have had would the Montana, existence. Sandstrom 442 to insist that the driver reverse 510, 523-24, 2458-59, 99 further, U.S. S.Ct. 61 “right” and go way course and jury likely L.Ed.2d 39 justified in that he would have been believ- interpret an either as ing taking instruction con- that the driver’s insistence shifting disprov- of “against clusive or as the burden him in his will” was in a direction Id. ing wrongful intent to defendant. 99 fact a restraint which could interpretation physically S.Ct. at 2455. Either resist. produced Strickland, just result. “the law that

The at-, at 2064. A convict- every person intends that U.S. presumes their consequences of that counsel’s assist- probable defendant’s claim and ed natural fact, acts,” was, consistent require as to reversal own ance was so defective Church’s ar- theory of the case. components. has of a conviction two mentally intended that he gument conceded that his coun- must first show normally con- physical acts which to do the required performance fell below that sel’s intended imprisonment: he unlawful stitute reasonably competent criminal defense to turn around the cab driver to force attorney. The defendant must also show hoped He opposite direction. drive prejudiced his counsel’s conduct his honest but to convince -, 2064; 104 S.Ct. at defense. going the cab mistaken belief Territory People Guam San- an honest mistake wrong way constituted tos, (9th Cir.1984). F.2d wrongfulness fact which undermined prejudice is whether there is a The test its crimi- and thus vitiated his conduct probability but for coun- reasonable Therefore, excused from he was nality. errors, professional the result of the sel’s impris- and false of assault the commission different. A proceeding would have been words, drinking led In other onment. probability probability reasonable is a suffi- actual facts. mistake as to the him to a to undermine confidence the out- cient taking mistakenly the driver was believed Strickland, at-, come. these facts Had principles governing at 2068. The *5 to order true, had a he would have in apply claims federal col- ineffectiveness defense, course. His the driver to reverse proceedings as do on direct lateral thus, under mistake. was that acted trial. appeal or motions for new to use dispute that his intent was did not -, 104 S.Ct. at 2070. to turn around. compel the driver force to reality justi- of his as to the The issue was that, whatever Church contends defense, con- such a we fication. Given strategy, his fail counsel’s have been was “harmless clude that the instruction to the Sandstrom instruction object to ure because beyond a reasonable doubt” we to ineffec and on amounted at trial did Sandstrom that a error are “confident disagree. of counsel. We tive assistance any jury’s play not role verdict.” Montana, Johnson, Connecticut 460 U.S. was decid 61 L.Ed.2d had after Church ed on June assistance of counsel Ineffective the case was convicted and while that, devising and claims Church that a agreed if with Church Even we defense, his trial the presenting above defense at reasonably competent criminal the incompetent, whereas counsel was the in torney might have foreseen criminal guarantees Sixth Amendment unconstitution would be declared struction reasonably assistance of a defendant necessarily not al, attorney would such an v. Wash Strickland attorney. competent as the instruction. The objected to have 2052, 2064- ington, novel, juries have but serted defense was (1984); Cooper v. Fitz The persuaded less. known to be harris, 1330-31 Cir. disputing not gamble for success embraced banc), 1978) (en had no Thus his counsel intent at trial. 1542, 59 L.Ed.2d 793 instruction; object to the reason to his was not inconsistent judging any for The benchmark conceivably might have The defense. is whether coun claim of ineffectiveness strategy is defense. That believed so undermined sel’s conduct prove in does not ultimately unsuccessful process that functioning of the adversarial having competence. on as trial cannot be relied event, preju- driver; fails on the and any upon choke marks the taxi 4) threatening and prong dice of his claim we have shoot taxi driv- er and his trial court’s error fiance. held that the giving beyond was harmless the instruction depended entire thus a reasonable doubt. knowing Church not which direction the driving cab was voluntary because of his contends that Church also theory intoxication. The with this trouble counsel’s failure to to the use of is completely that it is at odds with Wash- prior guilty the habitual pleas at offender ington law. In State Mriglot, proceeding constituted ineffective assist 573, 574-75, Wash.2d alleges ance of counsel. Church that coun (1977) (footnote omitted), the court held: inquire pleas sel failed to whether Appeals correctly states knowing voluntary required by voluntary intoxication does not ren- Holsworth, 93 State v. Wash.2d der an act Although less criminal. it banc). (1980)(en P.2d 845 But Church does does not the criminality excuse pleas not contend that his were in fact act, may it tending be considered as involuntary unknowingly. or made There negate specific intent when intent is a fore, showing he fails to make neces necessary particular element offense sary to establish a claim ineffective as theory of offense. The is not sistance of counsel. voluntary drunkenness excuses the AFFIRMED. if conduct but the offense charged requires specific intent, BOOCHEVER, Judge, dissenting: guilty cannot be if he was too I I dissent because believe there was intoxicated time any at the to have ineffective assistance counsel. Counsel intent and had not entertained such in- objected should have to the prior intent instruc tent to his intoxication. tion violating the Sandstrom rule.1 The government charge did not given failing excuse make that simple with the obvious offense of assault. objection hoped is that counsel to convince Such easily an offense excused be- *6 that had an honest but cause of intoxication. Little brain direction mistaken going belief that the cab was required Here, deliver blow. how- wrong way. government, As stated ever, government charged Church with the evidence of intoxication ... was of- the much complex more serious and crimes appellant fered subjectively to show how imprisonment of unlawful assault proceeding believed that the taxicab was degree. pointed the second As out direction, in wrong thereby substanti- majority, imprisonment unlawful requires ating theory the defense that he was “knowingly” that the defendant restrain justified 1) ordering in: person, taxicab to be another and assault in the second around; 2) reaching turned over and requires knowing assault of an- 3) grabbing inflicting the keys; blows other felony.” “with intent commit a 897, 217, (1967); 1. Counsel should have alerted to the un 88 S.Ct. 19 L.Ed.2d 215 United Barash, 395, constitutionality (2d Cir.1966); intent of the instruction. Al States v. 365 F.2d 402 though 36, Raleford, Sandstrom was announced until af United States v. 352 F.2d 40 ended, denied, Washington Cir.1965), 984, ter the trial other and feder cert. 382 U.S. 86 S.Ct. 562, (1966); al court decisions had indicated the 15 L.Ed.2d 473 Mann v. United States, 404, invalidity burden-shifting (5th Cir.1963), instructions. See 319 F.2d 409 cert. Co., denied, 986, 520, Gypsum United States v. United States 84 S.Ct. 438 375 U.S. 11 L.Ed.2d 422, 2864, (1978); (1964); States, 57 L.Ed.2d Chappell 854 474 274, v. United 684, Wilbur, 700-01, Mullaney (1959); Roberts, 421 U.S. 95 279-80 State v. 88 Wash.2d (1975); 337, 1259, (1977); United 562 P.2d 1261-63 State v. 31, Haldeman, Kroll, 829, 173, States v. F.2d 116 559 87 Wash.2d 558 P.2d 181-82 denied, Alcantara, (1977); cert. State v. 87 Wash.2d (1977); States, Odom, (1976); L.Ed.2d 250 Cohen United P.2d State v. 1050-51 (9th Cir.), F.2d Wash.2d 9A.40.040, Thus, ing in the 9A.36.- even Wash.Rev.Code §§ law, Thus, assuming theory that 020(l)(d). counsel’s had some under success, hope have voluntary intoxication could it would not have been by arguing crimes complete defense to both weakened that there was an intoxicated as to requisite if he was so intent charged, absence required for each specific intent negate the intoxication. Effective assistance of coun- introduced estab- The evidence requires crime. sel use of alternate theories if extremely drunk lished are available. strongly supported this have and would Strickland I that the test is satis- believe

theory. respectful- in this case and I therefore fied only plausible defense my opinion the ly dissent. attorney have competent would that a case be based on

made in this intoxi- intent due to

absence of criminal Moreover, this is a case where

cation. could well ineffectiveness have

counsel’s the outcome because a direct effect on

had deprived of a instruc-

defendant jury on the issue of whether he

tion to the required intent for the did have the SAGERMARK, Bertil Francisca Walters crime. Petitioner, Mazariegos, mandated a Supreme Court has assistance of strict standard for ineffective IMMIGRATION AND NATURALIZA- A must show that counsel. SERVICE, Respondent. TION errors or reflect a fail- counsel’s omissions skill, judgment, exercise the or dil- ure to No. 83-7426. competent igence reasonably Appeals, United States Court appear attorney, and it must Ninth Circuit. prejudiced by defendant was counsel’s con- Strickland, at 2064. Sel- duct. Aug. 1984 *. Submitted say appeals dom can an court with certain- Aug. Decided ty performance fell that counsel’s below standard, I this but believe this is one case. attempt- defense which counsel contrary

ed on Church’s behalf was *7 Additionally, counsel law.

failed to assert the lack of intent as defense, though both crimes even

charged clearly required specific intent and strongly sug- level of intoxication

gested such a defense could be suc- Finally, nothing inconsist-

cessful. there contending the defendant was

ent intoxicated that he could not have

so requisite also con-

formed the intent and

tending that he so intoxicated that he go-

honestly believed that vehicle was * 3(f). panel appropriate Rule for submis- and Ninth Circuit finds this case 34(a) argument. Fed.R.App.P. sion without oral