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DOWS v WOOD9935625
A district court's decision to grant or deny a petition for
habeas corpus under 28 U.S.C. S 2254 is reviewed de novo.
McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999).
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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
Email a Link to This Case
http://laws.findlaw.com/9th/9935625.html
KENNETH PAUL DOWS, No. 99-35625 Petitioner-Appellant, D.C. No. v. CV-98-01016-RSL TANA WOOD, OPINION Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
February 10, 2000--Seattle, Washington
Filed April 27, 2000
Before: Stephen S. Trott, Andrew J. Kleinfeld, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Trott
_________________________________________________________________
OPINION
TROTT, Circuit Judge:
Kenneth P. Dows ("Dows"), a Washington prisoner con-
victed of first-degree rape, appeals from the district court's
denial of his 28 U.S.C. S 2254 petition for a writ of habeas
corpus. Dows argues that his attorney, Robert Egger
("Egger"), was ineffective because Egger was allegedly suf-
fering from the effects of Alzheimer's disease at the time of
Dows's trial. Dows claims that Egger was ineffective "per se"
because of the disease and, alternatively, that Egger's perfor-
mance at trial was deficient in several respects which resulted
in actual prejudice to Dows. This court has jurisdiction pursu-
ant to 28 U.S.C. SS 1291 and 2253, and we AFFIRM.
I
Kenneth Dows was convicted by a jury in Washington state
court for the first-degree rape of a woman, M.A. Dows was
represented at trial by Robert Egger, who, eighteen months
after the trial, was diagnosed with advanced Alzheimer's dis-
ease. The facts leading up to Dows's conviction and Egger's
subsequent medical diagnosis are as follows:1
On the night of June 30, 1990, M.A. attended a Charlie
Musselwhite concert at a Washington bar called the Ballard
Firehouse. At approximately 12:30 a.m., M.A. saw a man
showing pictures of himself with Musselwhite to other con-
cert attendees. After this photo display, the man tried to play
with Musselwhite's band, and when his request was unsuc-
cessful, he gave Musselwhite his name, address, and phone
number. The man left the bar before the concert ended.
When the concert was over, M.A. walked outside. Soon
thereafter, she saw the same man who had tried to play with
Musselwhite's band sitting in a large maroon car. The man
offered M.A. a ride. She declined and walked away. While
M.A. was looking for her car, the man drove by again. Min-
utes later, this same man appeared on foot and put his arm
around M.A. When M.A. rebuffed his advances, the man held
a knife to her ribs, beat, and raped her repeatedly.
M.A. told the police that she had seen her attacker showing
photographs of himself and Musselwhite at the Musselwhite
concert. She described the rapist as a slender man who was
approximately 5'5" tall. In addition, M.A., a portrait artist,
drew a sketch depicting the rapist with blond hair and a bush
beard. When interviewed, Musselwhite informed the police
that the man with the photographs had been Dows. M.A. later
identified Dows in a photomontage. The state charged Dows
with first-degree rape with a deadly weapon.
Dows's trial was set for January 6, 1992. Originally, Dows
was represented by appointed counsel, Anne Harper, who
withdrew on January 3, 1992, when Dows retained Egger. On
the first day of trial, although he had only three days to pre-
pare, Egger stated that he was ready to proceed. Before trial,
Egger made several pre-trial motions, including a motion to
exclude any reference to "mugshots" used to identify Dows in
the photomontage and a request that the state not reveal to the
jury that Dows had previously been incarcerated. Egger also
stated that Dows would not take the stand.
At trial, Egger cross-examined M.A. Because the defense
theory was mistaken identity, Egger's questions focused pri-
marily on various inconsistencies in M.A.'s statements, such
as the color of the rapist's car and the fact that Dows is 5'10"
tall, not 5'5" as M.A. originally told law enforcement.
In addition to M.A., the state called six other witnesses to
testify. Egger waived cross-examination of all but one of the
witnesses, John Baptiste, who was a promoter at the concert
venue where M.A. was raped. During the cross-examination
of Baptiste, Egger was able to elicit admissions that there may
have been a number of men who looked like Dows at the con-
cert. Egger was also successful in getting Baptiste to admit
that he could not positively identify Dows as definitely being
at the concert.
After the state rested, Egger called Dows's sister, mother,
and brother to testify. These witnesses provided potential ali-
bis for Dows on the day and evening of the alleged rape.
Egger also called Anne Harper, Dows's appointed counsel
before Dows hired Egger, who testified about an interview
she conducted with M.A. during which M.A. had confused
details of her recent rape with a prior rape in 1978.
After a three-day trial, the jury convicted Dows of first
degree rape with a deadly weapon. One month later, Egger
brought a motion for a new trial based on a statement by M.A.
to the prosecutor that she had not immediately recognized
Dows at trial. This motion was denied when M.A. assured the
court that she recognized Dows by the time she identified him
in court. Egger then filed a notice of appeal on Dows's behalf.
In June 1993, almost eighteen months after Dows's trial,
two superior court judges in the county where Egger practiced
law wrote letters to the Washington State Bar expressing con-
cern over Egger's declining courtroom performance. One
judge stated that over the previous few months, Egger
appeared confused and slow. On July 2, 1993, Dr. Brad
Thomas diagnosed Egger as suffering from Alzheimer's dis-
ease. This diagnosis was confirmed by two other medical pro-
fessionals, Dr. Steven Hamilton, and a psychologist, Dr.
Susan McCurry. Dr. Thomas stated that, in his opinion,
Egger's ability to be an effective attorney would probably
have been affected in January 1992 during Dows's trial. By
the end of 1993, Egger's dementia and memory loss were
readily apparent, and his daughter, Kelly Egger, had been
appointed as his legal guardian. Egger died eighteen months
after being diagnosed with Alzheimer's disease, three years
after Dows's trial.
Previously, in early September of 1993, Egger realized that
he could no longer handle Dows's appeal, and an attorney
from the Washington Appellate Defenders Association took
over the case. On January 6, 1994, the Washington Court of
Appeals granted Dows's motion to stay the appeal in order for
him to argue a motion for a new trial in the superior court
based upon the newly discovered information regarding
Egger's illness. The motion for a new trial was heard by
Judge Martinez, the same judge who presided at Dows's orig-
inal rape trial and sentencing. After reviewing the trial tran-
scripts, Judge Martinez denied the motion for a new trial,
concluding in an extensive order that, as a factual matter,
Dows had failed to establish any significant deficiencies in
Egger's trial performance.
Dows appealed the denial of the motion to the Washington
Court of Appeals, which affirmed the superior court. The
Washington Supreme Court denied Dows's petition for
review.
In July 1998, Dows filed this petition for a writ of habeas
corpus in the district court. Adopting the report and recom-
mendation of a magistrate judge, the district court concluded
that the Washington state trial and appellate courts correctly
decided that Egger was not ineffective. The district court
denied the petition for habeas corpus, and Dows appeals.
II
A. Standard of Review
A district court's decision to grant or deny a petition for
habeas corpus under 28 U.S.C. S 2254 is reviewed de novo.
McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999).
[1] Because Dows's petition was filed after the effective
date of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), the AEDPA's provisions apply. See Jef-
fries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en banc). Under
the AEDPA, habeas relief can be granted only when the state
court adjudication of the merits of a claim "(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding." 28 U.S.C. S 2254(d) (1999). This limited
scope of review controls in this case.
B. Ineffective Assistance of Counsel
[2] The Sixth Amendment, as applicable to the states
through the Fourteenth Amendment, entitles an accused to the
effective assistance of counsel at trial. McMann v. Richard-
son, 397 U.S. 759, 771 n.14 (1970) ("[T]he right to counsel
is the right to the effective assistance of counsel."). Ineffec-
tive assistance of counsel claims are analyzed under the
framework set out by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), which is considered in this
circuit to be "clearly established Federal law, as determined
by the Supreme Court of the United States" for purposes of
28 U.S.C. S 2254(d) review. Canales v. Roe , 151 F.3d 1226,
1229 n.2 (9th Cir. 1998).
[3] Under Strickland, we evaluate (1) whether counsel's
conduct was deficient -- i.e., seen objectively, was out of "the
wide range of professionally competent assistance " and, if so,
(2) whether it was prejudicial to the defendant -- i.e., was
there a "reasonable probability that, but for counsel's unpro-
fessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 691, 694; see also Smith v.
Robbins, 120 S. Ct. 746, 764 (1999). "A reasonable probabil-
ity is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
1. Prejudice Per Se
Dows's first argument on appeal is that Egger was per se
ineffective. Specifically, Dows argues that, because Egger
was diagnosed with, and in the advanced stages of,
Alzheimer's disease only eighteen months after Dows's rape
trial, and because the doctors concluded that the disease prob-
ably was present in earlier stages during Dows's trial, we
should conclude that Egger was laboring under the disabling
effects of Alzheimer's at the time of the trial and infer preju-
dice. The Court of Appeals of the State of Washington
rejected this argument and concluded that "rather than assume
that all Alzheimer's victims are incapable of representing cli-
ents effectively, we will evaluate Egger's actual conduct at
trial." The district court found that this conclusion was not an
unreasonable application of Supreme Court precedent and,
accordingly, denied Dows's petition for a writ of habeas cor-
pus. See 28 U.S.C. S 2254(d)(1) (habeas relief can be granted
only when the state court adjudication of the merits of a claim
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States").
We agree.
[4] A lawyer generally is presumed competent, and it is the
burden of the accused to overcome this presumption. United
States v. Cronic, 466 U.S. 648, 658 (1984). The Supreme
Court has recognized, however, that prejudice will be pre-
sumed in certain limited circumstances such as where an
accused is denied counsel at a critical stage of the proceed-
ings, see Geders v. United States, 425 U.S. 80 (1976), where
there is an actual conflict of interest between the defendant
and his attorney, see Cuyler v. Sullivan, 446 U.S. 335 (1980),
or where counsel "entirely fails to subject the prosecution's
case to meaningful adversarial testing." Cronic, 466 U.S. at
659.
[5] The mere fact that counsel may have suffered from a
mental illness at the time of trial, however, has never been
recognized by the Supreme Court as grounds to automatically
presume prejudice. Moreover, in Smith v. Ylst , 826 F.2d 872,
876 (9th Cir. 1987), the Ninth Circuit specifically rejected this
basis for presuming prejudice. In rejecting defendant's argu-
ment that prejudice should be presumed where counsel may
have had a mental illness, the Ylst court reasoned that "mental
illness is too varied in its symptoms and effects to justify a per
se reversal rule without evidence that the attorney's perfor-
mance fell below the constitutional norm." Id.
The reasoning in Ylst applies equally well to Dows's case.
Egger was diagnosed with Alzheimer's disease approximately
eighteen months after Dows's trial. There is no question that
by the time Egger was diagnosed, he was in the later stages
of the debilitating disease and was not competent to render
legal counsel.
[6] However, because of the nature of Alzheimer's disease
and its varied manifestations in different individuals, neither
Dows nor anyone else can prove what effects, if any, the dis-
ease had on Egger's memory and cognitive ability at the time
he represented Dows at trial. Therefore, even if Egger had
been in the early stages of Alzheimer's at the time of Dows's
trial, this alone is not sufficient for a per se reversal of Dows's
conviction by a jury. The Washington Court of Appeals deter-
mined that the best indicator of Egger's ability, or lack
thereof, to represent Dows at trial was Egger's actual perfor-
mance. We agree. Were the rule otherwise, trial judges might
be compelled to deny defendants' choice of counsel, when
they hired old lions of the bar, often to defendants' detriment.
[7] It is not appropriate to presume prejudice in this case
and, under the limited scope of review mandated by the
AEDPA, we are without the power to do so. As noted above,
there is simply no Supreme Court precedent holding that prej-
udice shall be presumed in circumstances such as those pre-
sented by Dows. Hence, in rejecting Dows's argument, the
Washington state courts did not reach a result that was "con-
trary to, or involved an unreasonable application of, clearly
established Federal law as determined by the Supreme Court
of the United States." 28 U.S.C. S 2254(d). Under the
AEDPA, therefore, a per se reversal of Dows's conviction
was not permissible, and the district court properly denied
Dows's petition for a writ of habeas corpus on this basis.
2. Deficient Performance and Resulting Prejudice
The second argument Dows advances on appeal is that,
even assuming Egger's counsel was not per se ineffective,
there are actual instances in the record of deficient perfor-
mance by Egger, which prejudiced Dows and, thus, were suf-
ficient to conclude that Egger was "ineffective " under
Strickland. As with Dows's first argument, the Washington
state courts concluded that "[v]iewing the entire record, there
is insufficient evidence to show that Egger's representation
fell below the standard of objective reasonableness[or] . . .
that [without the errors] the result at trial would have been
different to a reasonable probability." The district court con-
curred and concluded that the state courts correctly applied
Supreme Court precedent to the facts in the record. After a
careful review of the record, we conclude that the district
court was correct.
Dows asserts that Egger's performance was deficient in
three significant respects: (1) he failed to adequately prepare
for trial; (2) he prevented Dows from testifying; and, (3) he
failed to "test" the state's evidence at trial.
[8] First, Dows argues that Egger did not adequately pre-
pare because Egger agreed to represent Dows at trial after
only three days of preparation, did not interview any wit-
nesses or conduct an investigation, and did not contact a pos-
sible alibi witness as suggested by Dows. This argument is
not supported by the record. The record makes clear that
Egger was familiar with the facts of the case and had a defi-
nite defense strategy. For example, Egger told the court which
witnesses would be called and what they would testify about,
he made very cogent pre-trial arguments about the use of
"mugshots" at the trial, and he inquired about counsel's abil-
ity to refer to a prior rape of M.A. Moreover, although Egger
did not independently interview witnesses, interview state-
ments taken by Anne Harper, Dows's previous attorney, were
made available to Egger. His decision not to investigate fur-
ther was not objectively unreasonable. See Strickland, 466
U.S. at 691 ("Counsel has a duty to make reasonable investi-
gations or to make a reasonable decision that makes particular
investigations unnecessary.")
[9] Similarly, as to Egger's failure to interview or call an
alleged alibi witness, there is no evidence in the record that
this witness actually exists, other than from Dows's self-
serving affidavit. Moreover, Dows provides no evidence that
this witness would have provided helpful testimony for the
defense - i.e., Dows has not presented an affidavit from this
alleged witness. The facts in the record support the state
courts' and the district court's conclusions that Dows did not
provide sufficient evidence of Egger's lack of preparation to
prove that Egger was "ineffective" under Strickland.
[10] Second, Dows argues that Egger denied him his right
to testify at trial by threatening to walk out on Dows in the
middle of trial if he insisted on testifying. Again, this argu-
ment is without factual support. In its order denying Dows a
new trial, Judge Martinez noted that at no time during the trial
did Dows ever indicate that he wanted to testify or that he was
prevented from doing so by counsel. Moreover, Egger had
very good reason for suggesting that Dows not testify. Dows
had three prior convictions for robbery and assault, which, in
all likelihood, would have been admitted to impeach Dows on
the stand if he had testified. Id. As noted with some irony by
the trial court, if Egger had allowed Dows to testify under this
scenario, that would be definite proof he was suffering from
Alzheimer's disease. Dows cannot prove deficient perfor-
mance or prejudice based upon his failure to testify at trial.
[11] Finally, Dows's third argument is that Egger was defi-
cient at trial because he failed to test the state's evidence. Pri-
marily, Dows argues that Egger failed to cross-examine most
of the state's witnesses, and that his cross-examination of
M.A. was inadequate. Under Strickland, counsel's representa-
tion must be only objectively reasonable, not flawless or to
the highest degree of skill. Strickland, 466 U.S. at 688-89.
Moreover, counsel's tactical decisions at trial, such as refrain-
ing from cross-examining a particular witness or from asking
a particular line of questions, are given great deference and
must similarly meet only objectively reasonable standards. Id.
Thus, here, although Egger might have conducted a more
thorough and vigorous examination of the alleged rape victim,
the state courts' conclusion that his conduct was objectively
reasonable is not an incorrect application of Supreme Court
precedent or an unreasonable determination of fact sufficient
to grant a petition for habeas corpus under section 2254. As
with his first two arguments, Dows has not produced evidence
sufficient to conclude that Egger's performance at trial was
deficient and resulted in prejudice as required by Strickland.
In addition to the three specific areas just discussed, Dows
points to numerous instances in the record where Egger may
have made minor mistakes or appeared momentarily con-
fused. These instances, however, are taken out of context and
do not amount to objectively unreasonable conduct that leads
one to the conclusion that there is a "reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. Dows's
motion for a new trial based on ineffective assistance of coun-
sel was decided by Judge Martinez, the same judge who pre-
sided at Dows's original trial. Judge Martinez was in an
unusually good position to evaluate Egger's actual perfor-
mance and Dows's credibility, and we give his conclusion
that Egger's performance was objectively reasonable substan-
tial weight.
III
In sum, while we do not overlook the serious consequences
for Dows of Egger's possible mental incompetence, nor the
impact of learning that, subsequent to trial, Egger had been
diagnosed with a debilitating disease, we cannot presume
prejudice in this case.2 Moreover, our meticulous review of
the record revealed no legally relevant deficiency in Egger's
performance or actual prejudice as required under Strickland.
As stated by the magistrate judge in his report and recommen-
dation, "[Dows] offers nothing here to establish that the state
court's adjudication of [his] claims resulted in a decision that
involved an unreasonable application of established federal
law, or that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceedings," as required by 28 U.S.C. S 2254. Accordingly,
Dows's petition for a writ of habeas corpus was properly
denied by the district court, and we
AFFIRM.
_______________________________________________________________
FOOTNOTES
1 The background information that follows was taken, in part, from the
decision by the Washington Court of Appeals in Dows's direct appeal.
2 Based on our experience with this case and the manner in which both
we and the Washington State Courts have been able to examine counsel's
performance, we are satisfied that adopting a presumption of prejudice --
as compared to conducting a thorough review of the record -- is unwar-
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