Dale J. Atkins v. Zenk, 7th Cir No. 11-1891, 1/31/12

7th circuit decision, denying habeas in relief

Habeas – Standard of Review – Ineffective Assistance of Counsel 

When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243. Under this “more generous standard,” George v. Smith, 586 F.3d 479, 484 (7th Cir. 2009), “we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo.” Morales v. Johnson, 659 F.3d 588, 599 (7th Cir. 2011) (citations and internal quotations omitted). That being said, “[e]ven under de novo review, the standard for judging counsel’s representation is a most deferential one.” Harrington, 131 S.Ct. at 788.

Here, the Indiana state courts analyzed both Strickland prongs. The trial court addressed both deficient performance and prejudice, while the appellate court limited its analysis to deficient performance. Because both prongs have been addressed by Indiana state courts, in one form or another, the deferential standard of review set out in § 2254(d) applies to both. See 28 U.S.C. § 2254(d) (deferential standard of review applies to “any claim that was adjudicated on the merits in State court proceedings”); cf. Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“[O]ur review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.”). We now turn to the merits of Atkins’s ineffective assistance of counsel argument.

Habeas – IAC – Strategy 

Counsel’s chosen strategy of arguing to the jury that Atkins was elsewhere when the victim was assaulted – something counsel knew to be false, because Atkins acknowledged to him having committed the assault – but failing to file a notice of alibi was reasonable under the full circumstances, namely: counsel advised Atkins that his best bet was to testify, deny the requisite intent and seek lesser-offense culpability, but Atkins refused to testify.

First, we agree with the Indiana Court of Appeals that counsel’s decision was a reasonable strategic decision, and therefore not subject to Monday-morning quarterbacking. See Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010) (“It is well established that our scrutiny of counsel’s trial strategy is to be deferential and that we do not second guess the reasonable tactical decisions of counsel in assessing whether his performance was deficient.”). As a practical matter, Ess’s strategy options were exceedingly limited. He advised Atkins that the “best” strategy was to argue that he should be acquitted of attempted murder because he lacked intent to kill. However, this option was, in Ess’s view, entirely contingent upon Atkins’s testimony. So when Atkins chose instead to exercise his right not to testify, Ess felt that this door closed, testifying: “I just . . . didn’t see any witness giving me the evidence that I needed to get those instructions in, because they have to be supported by the record.” Therefore, Ess made a calculated decision to comply with his client’s desires and pursue an “all or nothing” approach in the form of an alibi/ misidentification defense. Undoubtedly, Ess’s defense strategy created a steep hill to climb. But given the circumstances at hand, we are easily persuaded that Ess’s decision was a reasonable one.

Second, it is worth noting that although Ess raised alibi issues during his opening statements, the crux of his trial strategy related to misidentification: that is, the circumstances surrounding Yvonne’s identification of Atkins created reasonable doubt. And on this issue, the evidence shows that Ess performed his duties adequately. …

That counsel premised his strategy on a known falsehood is discomfiting but not analytically relevant:

Finally, with respect to deficient performance, we must pause to note that Ess’s decision to lie to the jury about Atkins’s whereabouts during opening statements, while troubling, does not meaningfully affect the Court’s analysis. See Brewer v. Aiken, 935 F.2d 850, 859-60 (7th Cir. 1991) (refusing to find ineffective assistance of counsel where counsel suborned perjury about the defendant’s alibi). As Atkins’s brief acknowledges, the rule against presenting false evidence to the jury is to protect the integrity of the truth-finding function of courts—not to protect the rights owed to the defendant. See Nix v. Whiteside, 475 U.S. 157, 174 (1986) (attorney’s responsibility to prevent perjured testimony is a duty to the court). …

Compare, State v. Fritz, 212 Wis. 2d 284, 293, 569 N.W.2d 48 (Ct. App. 1997) (“a lawyer who counsels perjury as a way of beating a ‘he says-she says’ charge is ‘not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment'” – the court then referring counsel for disciplinary investigation). Fritz seems distinguishable from Atkins (in the latter case, counsel certainly did not advocate perjury, indeed sought to have his client testify truthfully), but perhaps not reconcilable with Brewer, at least with respect to sixth amendment analysis. On the other hand, neither Brewer, nor for that matter Atkins, purports to let counsel off the hook for an ethical lapse; the narrower point at present is whether the client ought to be let off his hook for that lapse. All of which is to underscore the point, then, that generalization in this area is quite hazardous, except to belabor the obvious: proceed only with great caution.