THOMAS SCHMOLKE v. N. BURL CAIN, WARDEN
CIVIL ACTION NO. 10-1534
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
May 24, 2011
KAREN WELLS ROBY, UNITED STATES MAGISTRATE JUDGE
SECTION “I“(4)
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to
I. Factual and State Procedural Background
The petitioner, Thomas Schmolke (“Schmolke“), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.2 On August 10, 2004, Schmolke and a co-defendant, Katrina K. Currier, were charged by bill of information in St. Tammany Parish with one
The record reflects that, in October of 2003, Poole Lumber Company (“Poole“) hired Schmolke to work in its warehouse behind the sales area of its facility.5 At that time, Poole would accept returned purchases from customers by taking the materials to be returned to the warehouse where the customer would obtain a “return goods material slip.” The return goods material slip indicated the type and quantity of goods returned and could be signed by any of the three workers in the warehouse, including Schmolke. The customer would present the signed slip at the sales area and receive a cash refund of up to $500.00. Refunds over $500.00 had to be mailed to customers.
Mike Manguno, Poole‘s General Manager, reviewed all documents concerning cash refunds given out by Poole. He became suspicious of the relatively large number of refunds given to Katrina Currier. The inventory records did not support the alleged returns of merchandise. Manguno also did not recognize the signature of the worker allegedly receiving materials back from Currier. Also, on a May 6, 2004 refund slip, Manguno noticed that Currier‘s last name was different.
Manguno indicated that on April 9, 2004, Currier was refunded $145.20 for materials allegedly returned to Poole. The return goods material slip was initialed by “TS,” and Schmolke was working in the warehouse at the time of the alleged return. On April 17, 2004, Currier was refunded $325.19 for materials allegedly returned to Poole. The initials on the return goods material
On April 20, 2004, Currier was refunded $113.54 for materials allegedly returned to Poole. The return goods material slip was initialed by “TS,” and Schmolke was working in the warehouse at that time. On April 27, 2004, Janet Beasley requested a refund of $651.85 for materials allegedly returned to Poole. When asked to provide a name and address for mailing of the refund, Beasley provided Poole with a name and address that did not exist. Schmolke was working in the warehouse at the time of the alleged return.
On May 6, 2004, “Katrina Maguteo” was refunded $164.68 for materials allegedly returned to Poole. The return goods material slip was signed by “Patt.” A person named “Pat” did work at Poole, but he did not work in the warehouse and did not spell his name with a double “t.” Schmolke was working in the warehouse at the time of the alleged return.
By May 11, 2004, Manguno had alerted the sales clerks to inform him the next time Currier came into the store or to write down the license plate number of her vehicle. On that date, Currier made a purchase at Poole, and Manguno was provided with the license plate number of her vehicle. Schmolke left for lunch on May 11, 2004, and never returned to Poole. Thereafter, Manguno checked Schmolke‘s list of emergency contacts and saw that “Katrina Cariare” was listed on the form. Manguno alerted the police to the offenses.
St. Tammany Parish Sheriff‘s Office Detective Roy Chadwick Hartzog investigated the offenses at Poole. On June 14, 2004, he questioned Schmolke concerning his involvement in the
I did 5 returns at [P]oole[.] It was my idea to do it[.] I got some of the money and she kept the rest[.] [N]o one eles (sic) was involved exept (sic) me and Katrina[.] I‘m very sorry for doing it and would like to repay the money.
On July 12, 2004, Schmolke also advised Detective Hartzog that his sister, Janet Beasley, had been involved in the failed attempt to obtain a fraudulent refund from Poole.
In the meantime, on July 9, 2004, Detective Hartzog questioned Currier concerning the offenses at Poole. She confessed in writing to participating in the fraudulent returns involving $145.20 on April 9, 2004, $325.19 on April 17, 2004, $113.54 on April 20, 2004, and $164.68 on May 6, 2004. She also indicated the “scam was thought out by Thomas.” Currier also testified at trial that, on each of these occasions, Schmolke gave her a ticket listing items that were supposedly returned. He instructed her to take the ticket to the counter and to tell the person at the counter the number at the top of the ticket. She gave the money she obtained from Poole either to Schmolke or to his girlfriend, Amber.
Schmolke was tried before a jury on January 3 and 4, 2005, and was found guilty as charged on both counts.7 At a hearing held on March 21, 2005, the Trial Court denied Schmolke‘s motions
After hearings on June 2 and 10, 2005, the Trial Court denied Schmolke‘s motion to quash the multiple bill and adjudicated him to be a fourth or subsequent felony offender.10 The Court sentenced him to serve life in prison as a fourth or subsequent offender for the theft conviction and one year in the parish prison for attempted theft, to be served concurrently with the life sentence.11 Schmolke‘s counsel orally moved for appeal, and the Trial Court instructed counsel to file a written motion.12
Over nine months later, on March 16, 2006, Schmolke‘s appointed counsel filed motions to reconsider the sentence, for post-verdict judgment of acquittal, and for a new trial.13 The Trial Court denied each of the motions. Counsel also filed a motion for appeal, which the Trial Court granted.14
On March 27, 2006, Schmolke submitted an application for post-conviction relief in which he alleged that he was denied his right to appeal and his right to appointed counsel on appeal.15 The
On appeal, Schmolke‘s counsel raised two assignments of error:17 (1) he was denied the right to conflict-free counsel where trial counsel also represented the co-defendant Currier; and (2) the life sentence was excessive. Schmolke was granted leave to file a supplemental memorandum in which he reargued the denial of his right to conflict-free counsel and also argued that the evidence was insufficient to support the conviction.18 On February 9, 2007, the Louisiana First Circuit affirmed Schmolke‘s conviction, habitual offender adjudication, and sentences, finding no merit to any of the claims raised.19
The Louisiana Supreme Court denied without stated reasons Schmolke‘s subsequent writ application on October 26, 2007.20 Schmolke‘s convictions and sentences became final 90 days later, on January 24, 2008, because he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under
On September 24, 2008, Schmolke submitted an application for post-conviction relief to the Trial Court raising five grounds for relief:21 (1) He received ineffective assistance of counsel where counsel (a) failed to call Currier at the pretrial suppression hearing, (b) failed to investigate third party guilt or call David Tripp, (c) failed to call a defense expert, (d) failed to question Currier in an adversarial manner, (e) failed to use the known facts so as not to hurt Currier‘s case, (f) failed to properly argue sufficiency of the evidence at trial, (g) failed to properly file for appeal, and (h) failed to raise claims of double jeopardy; (2) counsel was ineffective due to a conflict of interest and failure to put the State‘s case to meaningful adversarial test; (3) trial and appellate counsel were ineffective for failure to argue sufficiency of the evidence at trial and on appeal; (4)(a) the convictions for both counts violated double jeopardy, and (b) counsel was ineffective for allowing double jeopardy at trial; and (5)(a) the multiple bill was filed without a grand jury indictment, and (b) the multiple offender proceeding was conducted without a jury.
After receiving the district attorney‘s response, the Trial Court dismissed the application for post-conviction relief finding the claims to be unfounded, without indicating its reasons, in its order issued October 16, 2008.22 Both the Louisiana First Circuit and the Louisiana Supreme Court denied Schmolke‘s subsequent writ applications without stated reasons.23
On June 24, 2010, the clerk of this Court filed Schmolke‘s federal petition in which he raised six grounds for relief:24 (1) counsel was ineffective for failing to inform petitioner of a conflict of interest or put the State‘s case to a meaningful adversarial test; (2) trial and appellate counsel were ineffective for failure to argue sufficiency of the evidence at trial and on appeal; (3)(a) the convictions violated double jeopardy, and (b) counsel was ineffective for allowing the double jeopardy at trial; (4)(a) the multiple bill was filed without a grand jury indictment, and (b) Louisiana law unconstitutionally allows enhancement of a sentence without jury findings; (5) he was denied the right to conflict free counsel; and (6) the life sentence was unconstitutionally excessive.
The State filed an answer and memorandum in opposition to Schmolke‘s petition conceding that the petition was timely filed and the claims have been exhausted.25 The State also argues that Schmolke‘s claims are without merit.
In his traverse to the State‘s memorandum in opposition, Schmolke reiterates his arguments in support of his claims.26
III. General Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), Pub. L. No. 104-132, 110 Stat. 1214,27 applies to this petition, which is deemed filed in this Court under the federal
The State concedes, and the record shows, that Lee‘s petition is timely and his claims are exhausted. In addition, none of his claims are in procedural default. The Court will proceed to review the merits of the claims raised.
IV. Standards of a Merits Review
The AEDPA standard of review is governed by
A state court‘s determinations of questions of fact are presumed correct and the court must give deference to the state court findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
A state court‘s determination of questions of law and mixed questions of law and fact are reviewed under
A state court‘s decision can be “contrary to” federal law if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 412-13; Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill, 210 F.3d at 485. A state court‘s decision can involve an “unreasonable application” of federal law if it either: (1) correctly identifies the governing rule but then applies it unreasonably to the facts; or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Williams, 529 U.S. at 406-08, 413; Penry, 532 U.S. at 792.
The Supreme Court in Williams did not specifically define “unreasonable” in the context of decisions involving unreasonable applications of federal law. cf. Wright v. West, 505 U.S. 277, 304 (1992). The court, however, noted that an unreasonable application of federal law is different from an incorrect application of federal law. See, e.g., id. at 305; see also Chambers v. Johnson, 218 F.3d 360, 364 (5th Cir. 2000), cert. denied, 531 U.S. 1002 (2000). “‘[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.‘” Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699 (2002).
Thus, under the “unreasonable application” determination, the Court need not determine whether the state court‘s reasoning is sound, rather “the only question for a federal habeas court is whether the state court‘s determination is objectively unreasonable.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006). In addition, review under
V. Analysis
A. Double Jeopardy (Claim No. 3(a))
Schmolke alleges that his conviction for both theft over $500 under
A double jeopardy claim raises a mixed question of law and fact for purposes of this Court‘s federal habeas review. Carlile v. Cockrell, 51 Fed. Appx. 483, 2002 WL 31319380, at *1 (5th Cir. 2002) (applying the AEDPA‘s mixed question standard to a double jeopardy claim); Johnson v. Karnes, 198 F.3d 589, 593 (6th Cir. 1999) (same).
A challenge to multiplicity raises double jeopardy concerns, which would protect a defendant against multiple punishments for the same offense where the legislature did not authorize cumulative punishment for one offense. United States v. Ogba, 526 F.3d 214, 232-33 (5th Cir. 2008) (quotations and citations omitted). “‘An indictment is multiplicitous if it charges a single offense in multiple counts, thus raising the potential for multiple punishment for the same offense, implicating the [F]ifth [A]mendment double jeopardy clause.‘” United States v. Reagan, 596 F.3d 251, 253 (5th Cir. 2010) (quoting United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993)); United States v. Soape, 169 F.3d 257, 266 (5th Cir. 1999) (citing United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994)). “The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” United States v. Cluck, 143 F.3d 174, 179 (5th Cir. 1998) (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir. 1985)).
Where the question of multiplicity arises, as here, because of multiple transactions, the question becomes “‘whether separate and distinct prohibited acts, made punishable by law, have been committed.‘” United States v. Lee, No. 08-0148, 2009 WL 481264, at *1 (E.D. La. Feb. 20, 2009) (Lemmon, J.) (citing United States v. Cluck, 143 F.3d at 179). To determine if the charged
The Supreme Court has noted that the Double Jeopardy Clause imposes few, if any, limitations on the legislature‘s power to define criminal offenses. Sanabria v. United States, 437 U.S. 54, 69 (1978); United States v. Bolin, 997 F.2d 881, 1993 WL 261088, at *1 (5th Cir. Jul. 6, 1993) (Table, Text in Westlaw) (“‘[T]he double jeopardy clause imposes no restraints on the power of Congress to define the allowable unit of prosecution and punishment where all the charges are brought in one suit.‘“) (quoting United States v. McDonald, 692 F.2d 376, 377 (5th Cir. 1982)). Once the legislature has defined the statutory offense with an “allowable unit of prosecution,” that determines the scope of protection afforded by the principles of double jeopardy. Sanabria, 437 U.S. at 69-70; Bolin, 1993 WL 261088, at *1 (The “‘sole question’ is ‘whether Congress intended to provide for multiple punishments.‘“). Thus, whether a particular course of conduct constitutes more than one offense under the same statute depends on legislative choice. Id. With regard to state criminal offenses, the federal courts are bound by state court determinations of state law. See Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 861 (2011); Missouri v. Hunter, 459 U.S. 359, 367-368 (1983).
In this case, Schmolke was charged in count one with an aggregate offense of theft over $500 encompassing the successful takings with Currier between April 9 and May 6, 2004, in violation of
Based on the premises of Blockburger, the Louisiana Supreme Court has specifically held that the legislative purposes of
Thus, under Louisiana law, each distinct theft by Schmolke was a separate completed transaction which could have been charged as a separate count. Id., at 494 & n.8. The State was allowed to, and did, aggregate some of the offenses to achieve a higher felony base and also charged
For the foregoing reasons, Schmolke has not established that the separate counts charged by the State for the aggregated thefts over $500 in count one and the separate charge in count two for attempted theft over $500 on a different day in a different act were multiplicitous or violative of the double jeopardy clause.30 The state courts’ denial of relief on this claim was not contrary to, or an unreasonable application of, Supreme Court law. Schmolke is not entitled to relief on this claim.
B. Multiple Offender Proceedings (Claim No. 4(a), (b))
Schmolke alleges that the filing of a multiple bill, where he faced a life sentence, without a grand jury indictment violated due process. He also argues that the adjudication as a multiple offender should have been a decision for a jury to protect his due process rights. Schmolke raised these claims in his application for post-conviction relief which was denied by the state courts without stated reasons.
With regard to Schmolke‘s claim that his multiple bill should have been issued by a grand jury, his claim is without basis in law. First, he has not identified any Supreme Court precedent or other federal authority to support his claim. Further, this Court‘s research has located no such legal requirement. Instead, the law indicates that Schmolke has no protected right to a grand jury in connection with his multiple offender adjudication for the following reasons.
Under Louisiana law, the “prosecution” of an offense punishable by death or life imprisonment “shall be instituted by indictment by a grand jury.”
Because such proceedings are not determinative of guilt or innocence under Louisiana law, they do not offer the accused the full range of due process and other constitutional rights normally attendant to such guilt adjudications. Buckley v. Butler, 825 F.2d 895, 902-03 (5th Cir. 1987); State v. Dorthey, 623 So.2d 1276 (La. 1993) (Because the multiple offender hearing is not a trial, legal principles such as res judicata, double jeopardy, the right to a jury trial do not apply). As a result, the United States Supreme Court has recognized that “‘[t]he Due Process Clause does not, . . . require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused.” Parke v. Raley, 506 U.S. 20, 32 (1992) (quoting Medina v. California, 505 U.S. 437, 451 (1992)).
Louisiana law does not provide for a grand jury indictment under its procedures for a multiple offender adjudications. State v. Vincent, 56 So.3d 414-15. For these reasons, there is nothing here to give rise to a constitutional violation reviewable by this federal habeas court. See Scott v. Cain, No. 07-6430, 2008 WL 2185381, at *10 (E.D. La. Apr. 21, 2008) (Wilkinson, M.J.) (report and recommendation), adopted by, No. 07-6430, 2008 WL 2223282, at *1 (E.D. La. May 21, 2008) (Engelhardt, J.), affirmed, 364 Fed. Appx. 850 (5th Cir.), cert. denied, 130 S. Ct. 3519 (2010).
Even prior to Apprendi, the United States Fifth Circuit Court of Appeals held that the Sixth Amendment does not require a trial by jury for multiple offender proceedings. Buckley, 825 F.2d at 904 n.3. Instead, bestowing such a right to a defendant is left to state law, and in Louisiana there is no such provision. Id. (citing
Schmolke has failed to establish a constitutional error or violation of federal law arising from his multiple offender adjudication without a grand jury indictment and without a jury‘s consideration
C. Excessive Sentence (Claim No. 6)
Schmolke argues that his life sentence as a fourth or subsequent felony offender is excessive, in light of the fact that his current conviction is not a violent crime. Schmolke‘s counsel raised this claim on direct appeal.
The Louisiana First Circuit found that Schmolke‘s life sentence was the maximum and was still within the statutory limits. The Court also resolved that the Trial Court did not abuse its discretion in choosing the maximum sentence where the Court found there were no mitigating factors present, there was a likelihood that Schmolke would commit another crime, he was in need of correctional treatment in a custodial environment, and a lesser sentence would minimize the seriousness of his crime. This was the last reasoned opinion on the issue.
Federal courts accord broad discretion to a state trial court‘s sentencing decision that falls within statutory limits. Haynes v. Butler, 825 F.2d 921, 923-24 (5th Cir. 1987); Turner v. Cain, 199 F.3d 437 (5th Cir. 1999) (unpublished) (sentence was within Louisiana statutory limits and within trial court‘s discretion, therefore petitioner failed to state cognizable habeas claim for excessive sentence). As here, if a sentence is within the statutory limits, a federal habeas court will not upset the terms of the sentence unless it is grossly disproportionate to the gravity of the offense. Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277 (1983).
“[W]hen a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality,‘” a court then considers (a) the sentences imposed on other criminals in the same jurisdiction; and (b) the sentences imposed for commission of the same offense in other jurisdictions. Smallwood v. Johnson, 73 F.3d 1343, 1346-47 (5th Cir. 1996);
At the time of his crime and conviction,
A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children‘s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows: . . .
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment of any term less that his natural life then:
(I) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no case less than twenty years and not more than his natural life . . .
(emphasis added).
Schmolke does not challenge the fact that he had six prior felony convictions, including one for indecent behavior with a juvenile and the remainder for simple burglary.31 As such, under
The United States Supreme Court has stated that “‘[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.‘” Ewing v. California, 528 U.S. 11, 23 (2003) (quoting Harmelin, 501 U.S. at 1001 (Kennedy J., concurring in part and concurring in judgment)). The Supreme Court has recognized that only the rare case will reach the level of gross disproportionality. Id., 538 U.S. at 30 (quoting Harmelin, 501 U.S. at 1005). As noted above, disproportionality is judged by whether similar sentences have been imposed for the same offense. Smallwood, 73 F.3d at 1346-47.
At the time of Schmolke‘s crime and conviction, his theft over $500 conviction carried a sentence, with or without hard labor, for not more than five years, or a fine of not more than $2,000, or both. As noted above, the enhancement under Louisiana‘s habitual offender laws increased his sentencing exposure to not less than 20 years nor more than natural life.
Louisiana courts consistently impose the maximum life sentence to fourth or subsequent offenders similarly situated. See, e.g., State v. Jones, 761 So.2d 596 (La. App. 5th Cir. 2010) (life for fourth offense for possession of a stolen car, with prior convictions for theft, possession of a weapon, and manslaughter); State v. Mitchell, 969 So.2d 800 (La. App. 2d Cir. 2007) (life for fourth or subsequent offense for obscenity with intent prior convictions for simple burglary, aggravated burglary, aggravate rape of a minor, and unauthorized entry into a place of business); State v. Windham, 748 So.2d 1220 (La. App. 5th Cir. 1999) (life fourth or subsequent offense for attempted simple burglary with priors including theft, simple burglary, and armed robbery).
For the reasons discussed above, the state courts’ finding that Schmolke‘s sentence was not excessive was not contrary to established Supreme Court case law, nor was it an unreasonable application of that precedent. This claim is without merit.
D. Ineffective Assistance of Counsel (Claim Nos. 1, 2, 3(b), and 5)
Schmolke argues that he received ineffective assistance of counsel on several grounds: failure to inform him of a conflict of interest or put the State‘s case to a meaningful adversarial test because of the conflict; failure to argue sufficiency of the evidence at trial and on appeal; failure to challenge double jeopardy at trial; and failure to challenge Louisiana law where it unconstitutionally allows enhancement of a sentence without jury findings.
Schmolke‘s counsel first raised the issue of counsel‘s conflict of interest, representing both Schmolke and Currier, on direct appeal. The Louisiana First Circuit denied relief finding that Schmolke had not established an actual prejudice resulting from the dual representation. The Court noted that Currier entered a plea of guilty prior to Schmolke‘s trial, without any agreement that she testify against Schmolke, thereby ending the evidentiary conflict suggested by Schmolke. The Court also noted the other strong evidence of guilt in Schmolke‘s own written and oral confessions.
The remaining grounds in support of his ineffective assistance, and his re-hash of the conflict of interest claim were raised in his application for post-conviction relief. The state courts’ denied relief on those claims without specified reasons.
As cited by the state appellate court, the standard for judging the performance of counsel was established by the United States Supreme Court in Strickland,
To prevail on the deficiency prong, petitioner must demonstrate that counsel‘s conduct failed to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002). “The defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88; Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). The analysis of counsel‘s performance must take into account the reasonableness of counsel‘s actions in light of all of the circumstances. See Strickland, 466 U.S. at 689. “[I]t is necessary to ‘judge . . . counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct.‘” Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690). Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).
In order to prove prejudice, petitioner “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; United States v. Kimler, 167 F.3d at 893. Furthermore, “[t]o meet the prejudice prong, the [petitioner] must affirmatively prove, and not merely allege, prejudice.” DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994); Theriot v. Whitley, 18 F.3d 311, 314-15 (5th Cir. 1994). In this context, a reasonable probability of prejudice is “a probability sufficient to undermine confidence in the outcome.” Id.
In making a determination as to whether prejudice occurred, courts must review the record to determine “the relative role that the alleged trial errors played in the total context of [the] trial.” Crockett, 796 F.2d at 793. A habeas corpus petitioner “need not show that ‘counsel‘s deficient conduct more likely than not altered the outcome in the case.’ But it is not enough, under Strickland, ‘that the errors had some conceivable effect on the outcome of the proceeding.‘” Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (quoting Strickland, 466 U.S. at 693). Thus, conclusory allegations of ineffective assistance of counsel, with no showing of effect on the proceedings, do not raise a constitutional issue sufficient to support federal habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)), cert. denied, 531 U.S. 849 (2000). Thus, scrutiny of counsel‘s performance “must be highly deferential” and the court will “indulge a strong presumption that strategic or tactical decisions made after an adequate investigation fall within the wide range of objectively reasonable professional
On habeas review, the United States Supreme Court has clarified that, under Strickland, “[t]he question is whether an attorney‘s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 788 (2011). The Harrington Court went on to recognize the high level of deference owed to a state court‘s findings under Strickland in light of AEDPA standards of review:
The standards created by Strickland and
§ 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under§ 2254(d) . When§ 2254(d) applies, the question is not whether counsel‘s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland‘s deferential standard.
(citations and quotation marks omitted) Harrington, 131 S. Ct. at 788.
a. Conflict of Interest
Schmolke alleges that his counsel violated his Sixth Amendment right to conflict-free counsel when he failed to disclose to him that he was conflicted by his simultaneous representation of Currier. He also argues that he was prejudiced by the conflict where counsel did not adequately or vigorously challenge Currier‘s testimony at trial, so as not to harm her case.
“‘Under the Sixth Amendment, if a defendant has a constitutional right to counsel, he also has a corresponding right to representation that is free from any conflict of interest.‘” Morin v. Thaler, 374 Fed. Appx. 545, 551 (5th Cir. 2010) (quoting United States v. Vaquero, 997 F.2d 78, 79 (5th Cir. 1993)). Although the traditional Strickland standard of review is outlined above, conflicts of interest arising from multiple representations is considered under the standards set forth
In Cuyler, the Supreme Court considered whether “the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel.” Id., at 345. In addressing this question, the Court reiterated its prior holding that there are circumstances under which an attorney can represent multiple criminal defendants in connection with the same criminal transaction without offending the Sixth Amendment. Id. The Court held that, where there is no objection at or before trial, counsel‘s representation will only give rise to a cognizable ineffective assistance claim if the representation “actually affected the adequacy of his representation.” Id., at 349-50. If the petitioner establishes the existence of an actual conflict that hampered counsel‘s representation of him, then he need not prove further prejudice under the second prong of Strickland. Morin, 374 Fed. Appx. at 551 (citing Mickens v. Taylor, 535 U.S. 162, 166 (2002)).
The showing of the conflict must be “tightly bound to the particular facts,” and not merely hypothetical, speculative, or potential in nature. (citations omitted) Id., at 551-52. An “actual conflict” exists under Cuyler when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client. See Strickland, 466 U.S. at 692. “Adverse effect” on the representation may be established with evidence that “some plausible alternative defense strategy or tactic” could have been pursued, but was not because of the actual conflict impairing counsel‘s performance. See Perillo v. Johnson, 205 F.3d 775, 782 (5th Cir. 2000).
In addressing Schmolke‘s claims, the Louisiana First Circuit applied the proper standard as set forth in Schmolke. In doing so, the Court found that any conflict arising from counsel‘s
Schmolke argues here that his counsel did not or was unable to adequately cross-examine Currier at trial about the facts of the case. “It is well established that the defendant is denied effective assistance of counsel in those instances where an attorney is unable to cross-examine, or is chilled in the cross-examination of, a government witness because of the attorney/client privilege arising from counsel‘s prior representation of the witness or from his duty to advance the interests of the witness as a current client.” United States v. Soudan, 812 F.2d 920, 927 (5th Cir. 1986). However, “[t]he petitioner must specifically identify instances in the record that reflect that his counsel made a choice between possible alternative courses of action such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.” United States v. Mers, 701 F.2d 1321, 1328 (11th Cir. 1983); United States v. Fox, 613 F.2d 99, 102 (5th Cir. 1980). Thus, to demonstrate an actual conflict arising from prior representation where the prior client is now serving as the State‘s witness against counsel‘s current client, the habeas petitioner must demonstrate that some confidences passed between the attorney and his former client. Losada v. Johnson, 95 F.3d 1149, 1996 WL 481358, at *6 (5th Cir. Aug. 14, 1996) (Table, Text in Westlaw).
Schmolke has not demonstrated the existence of any such conflicts on the record. He suggests that counsel‘s brief cross-examination indicates a choice to protect Currier without challenging her testimony. A review of her testimony during questioning by the State reflects that she testified regarding the details of the thefts she and Schmolke perpetrated.32 She identified
Schmolke has not pointed to any facet of Currier‘s testimony that counsel should have challenged in greater detail. Her testimony confirmed that which Schmolke had already confessed to in his statements, which he claimed were induced. He has not offered any alternative line of questioning that would have benefitted the defense. His suggestion that counsel was protecting Currier is no more than mere speculation.
Furthermore, as the record demonstrates, when Currier testified, she had already entered a plea of guilty and was apparently serving her 15-month sentence for the thefts charged in count one of the bill of information.35 Her guilt was already confessed on the record. Schmolke has not shown how counsel was obliged in any way to protect her innocence from the charges for which she was already convicted or any confidence she may have shared regarding her guilt or innocence. Schmolke has not met his burden to show any basis for counsel to have been torn in his duties to him as required by Cuyler or that counsel had a conflict or a conflict that in any way affected his presentation of Schmolke‘s defense.
The state courts’ denial of relief on this issue was not contrary to, or an unreasonable application of Cuyler. Schmolke is not entitled to relief on this claim.
b. Failure to Argue Sufficiency of the Evidence at Trial and on Appeal
Schmolke suggests that his trial counsel could have more vigorously challenged the sufficiency of the evidence presented by the State at trial. He now argues that he was actually
The record reflects that, prior to trial, the state trial court denied the defense‘s motion to suppress Schmolke‘s statements, which he testified that he made voluntarily but in anticipation of the charges being dropped if he paid restitution.36 Faced with the State‘s ability to use the statements at trial, counsel‘s strategy was to convince the jury that Schmolke was not the only perpetrator in light of the differences in the documents presented by the State at trial.37 Counsel also cross-examined the State‘s police witnesses in great detail about the receipts and the investigation done to determine if anyone else was involved other than Schmolke. He challenged the testimony of the Poole Lumbar manager about the return procedures, including his efforts to investigate the questioned return receipts. Schmolke has not established that counsel‘s trial tactics were deficient or other than reasonable performance in light of the facts of the case.
Schmolke has not established that this decision was contrary to, or an unreasonable application of Strickland. Counsel engaged in reasonable strategic decisions based on the case that was to be presented to the jury. The fact that his defense strategy was unsuccessful does not mean that he acted deficiently or that he failed to adequately challenge the State‘s case. Strickland,
Furthermore, Schmolke also faults his appellate counsel for failing to raise the sufficiency of the evidence on direct appeal. The Supreme Court has long-recognized that appellate counsel
In this case, Schmolke‘s insufficient evidence claim was not a “non-frivolous” claim. He raised the claim himself on appeal, and the Louisiana courts denied the claim as meritless. Failure to raise a meritless claim on appeal would not be deficient performance. See Anderson v. Quarterman, 204 Fed. Appx. 402, 410 (5th Cir. 2006) (“The issues that Anderson argues his counsel should have raised on direct appeal . . . lack merit. As such, failure to raise these issues did not prejudice Anderson.“); see also, Kossie v. Thaler, No. 09-20581, 2011 WL 1659395, at *3 (5th Cir. Apr. 28, 2011) (recognizing the Supreme Court‘s premise that only when ignored claims are stronger than those raised will the presumption of effectiveness be overcome) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)). Schmolke is not entitled to relief on this claim.
c. Failure to Challenge Double Jeopardy at Trial and Challenge Sentence Enhancement Without a Jury
In his final two facets of the ineffective assistance of counsel claim, Schmolke argues that his counsel was deficient in failing to challenge his exposure to double jeopardy at trial. He also alleges that counsel was deficient in failing to argue that Louisiana‘s enhancement provisions denied him his right to a trial by jury on the multiple bill.
For the reasons detailed above, the Court has already resolved that Schmolke‘s conviction and sentence for theft over $500 and for attempted theft over $500 in this case did not violate the Double Jeopardy Clause. In addition, the Court has already resolved that Schmolke did not have a right to a jury trial under either state or federal law on his multiple bill. Counsel was not deficient for failing to raise legally meritless or frivolous arguments or objections. Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006) (citing United States v. Kimler, 167 F.3d at 893 (“An attorney‘s failure
For these reasons, Schmolke has not shown that the state courts’ denial of relief on these claims was contrary to, or an unreasonable application of, Strickland. Schmolke is not entitled to relief.
VI. Recommendation
It is therefore RECOMMENDED that Thomas Schmolke‘s petition for issuance of a writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.
A party‘s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge‘s report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass‘n, 79 F.3d 1415, 1430 (5th Cir. 1996).38
New Orleans, Louisiana, this 24th day of May, 2011.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE