Dale Atkins v. Richard Brown , 667 F.3d 939 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1891
D ALE J. A TKINS,
Petitioner-Appellant,
v.
M ICHAEL Z ENK, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:10-cv-85-JVB—Joseph S. Van Bokkelen, Judge.
A RGUED N OVEMBER 29, 2011—D ECIDED JANUARY 31, 2012
Before P OSNER and K ANNE, Circuit Judges, and P RATT,
District Judge.Œ
P RATT, District Judge. Dale J. Atkins was convicted by
a jury of attempted murder, criminal confinement, domes-
tic battery, and invasion of privacy and sentenced to
Œ
The Honorable Tanya Walton Pratt, District Judge for the
United States District Court for the Southern District of
Indiana, is sitting by designation.
2 No. 11-1891
51 years in prison. Atkins filed a post-conviction relief
petition in Indiana state court, but obtained no relief.
He then filed a federal habeas corpus petition under
28 U.S.C. § 2254, claiming that he was deprived of his
Sixth Amendment right to effective assistance of trial
counsel. The district court denied the petition, but
granted a certificate of appealability. Atkins appealed,
and we affirm.
I. Background
A. Facts
In 2003, Atkins married Yvonne Atkins (“Yvonne”).
Some time later (it is unclear when), they began living
apart, and the relationship soon degenerated into a cycle
of violence. On January 26, 2004, Atkins stood at the
door of Yvonne’s home with a butter knife in one hand
and a butcher knife in the other. Atkins fled when
Yvonne’s brother-in-law answered the door. On Feb-
ruary 27, 2004, Atkins attacked Yvonne, was arrested,
and pled guilty to domestic battery. On April 26, 2004,
Yvonne sought and received a protective order, which
was served on Atkins on April 29, 2004. The protective
order instructed Atkins to stay away from Yvonne and
gave her exclusive possession of the home.
Unfortunately, the protective order had little deterrent
effect. Three days later, on May 2, 2004, Yvonne attended
a neighbor’s cookout. When she returned home after
8:00 p.m., she locked the door and called her neighbor
to say that she had arrived home safely. Yvonne also
No. 11-1891 3
called her nephew, asked him to stay the night, and
unlocked the door so he could let himself into the
home. This practice had become routine, given Atkins’s
increasingly volatile behavior.
Yvonne soon heard a sound at the door, which turned
out to be Atkins. Atkins stated that he wanted a drink,
proceeded to the kitchen, and opened the refrigerator.
Yvonne screamed at him to leave and then attempted
to exit the home. Atkins pulled Yvonne towards him,
put a knife against her neck, and cut her. He sub-
sequently held her against a doorway, stated “I’m tired
of this shit, bitch,” and stabbed her approximately ten
times. One of the stab wounds was less than one inch
from Yvonne’s heart, causing blood to spurt from her
chest every time her heart beat. After Atkins fled the
residence, Yvonne ran to her front porch, where she
yelled for help. Thankfully, Yvonne’s neighbors
responded to her cries and assisted her until medical
personnel arrived. During this time, Yvonne told her
neighbors that Atkins had stabbed her. Yvonne was
treated for internal injuries, including a collapsed lung
and a stab wound to the spleen. Atkins fled Indiana
and was ultimately apprehended in Georgia.
The State charged Atkins with attempted murder,
criminal confinement, domestic battery, and invasion of
privacy. Atkins was represented by attorney Todd Ess.
Prior to trial, Ess met with Atkins four or five times to
discuss trial strategy. Ess also filed a motion in limine
concerning a telephone call that Atkins had made to
Yvonne after the attack, reviewed discovery, formulated
4 No. 11-1891
a trial strategy, deposed Yvonne, and investigated ways
to impeach Yvonne’s credibility. From the outset of
the attorney-client relationship, Atkins maintained that
he was not at Yvonne’s home during the stabbing, al-
though he had occasionally equivocated on this point.
Based on Atkins’s claim that he was not present at
the home and the fact that Atkins was apprehended in
Georgia, Ess prepared to forge an alibi/misidentifica-
tion defense. On the day before trial, however, Atkins
admitted to Ess that he had, in fact, stabbed Yvonne. But
Atkins insisted that the stabbing was an accident that
occurred during mutual combat, and that he had not
intended to kill Yvonne.
In the wake of this revelation, Ess asked Atkins if
he wanted to proceed using an accident defense or a
misidentification defense. Ess advised Atkins that the
best defense was for Atkins to testify as to how the
incident occurred, that there was mutual combat, and
to his state of mind during the incident. This way, Ess
could seek a lesser-included offense instruction, thus
allowing Ess to argue that Atkins was not guilty of at-
tempted murder, which requires “specific intent to kill.”
See Osborne v. State, 754 N.E.2d 916, 924 (Ind. 2001); Ind.
Code § 35-41-5-1. Atkins resisted, telling Ess that he
would not testify; that he did not want to answer
questions about the incident or his relationship with
Yvonne; and that, if he did testify, he would not tell the
jury about using cocaine the night of the incident (even
though he had done so). Stuck in a strategic quandary,
Ess contemplated other defenses based on lack of
No. 11-1891 5
intent, but decided to abandon them in light of Atkins’s
decision to exercise his right not to testify. Further,
Atkins informed Ess that he wanted to pursue the “all
or nothing” approach (i.e., the alibi/misidentification
defense). Ess complied with Atkins’s request.
During opening statements, Ess falsely stated to the
jury that Atkins “went to Georgia and that’s where he
was when this occurred[.]” In a similar fashion, he
stated that police did not find Atkins at the scene
“[b]ecause he was in Georgia.” Nonetheless, despite
raising the specter of an alibi, Ess did not file the
statutorily-required notice of alibi, see Ind. Code § 35-36-4-
1; nor did he tender a jury instruction concerning an
alibi defense.
The defense rested after the State presented its case-in-
chief. During its closing argument, the State highlighted
that the defense had not introduced any evidence that
Atkins was actually in Georgia during the stabbing. In
Ess’s closing argument, he emphasized that the State’s
evidence was confusing, incomplete, and convenient
for the victim. Ess argued that, in total, the holes in the
evidence added up to reasonable doubt. The jury did
not buy Atkins’s defense, finding him guilty on all
counts. Subsequently, the trial judge sentenced Atkins to
an aggregate prison term of 51 years. At sentencing, the
trial judge stated, “Mr. Ess did a good job for you,
Mr. Atkins. He was working uphill but, as with your
attitude towards Ms. Atkins, you don’t seem to ap-
preciate those who are trying to help you or do better
for you[.]”
6 No. 11-1891
B. Post-trial Proceedings
After his conviction, Atkins filed a direct appeal, claim-
ing that the evidence was insufficient to convict him
and that the trial court improperly weighed sentencing
factors. In an unpublished opinion, the Indiana Court of
Appeals affirmed. Atkins v. State, 49A05-0506-CR-00339
(Ind. Ct. App. Jan. 18, 2006).
On November 30, 2006, Atkins filed a petition for post-
conviction relief, claiming that Ess had provided inef-
fective assistance of counsel by pursuing an “irrational
alibi defense” that was based on a known lie. The trial
court held an evidentiary hearing, where both Atkins
and Ess testified. There, Atkins admitted that he “stuck”
Yvonne purposely, and, although he did not intend to
kill her, he knew what he was doing. Specifically,
Atkins testified: “I stabbed her in front of her breast and
I took it to the left a little bit, just thinking that I
would injure her breast and I left, and that was the
only injury that I purposely done.”
Following the hearing, the trial court, in a thorough 18-
page order, denied Atkins’s petition. Specifically, the
trial court addressed both prongs of the test for inef-
fective assistance of counsel: deficient performance and
prejudice. See Strickland v. Washington, 466 U.S. 668 (1984).
Atkins appealed, again claiming that Ess provided inef-
fective assistance by pursing the alibi/misidentification
defense. In an unpublished decision, the Indiana Court
of Appeals affirmed the denial of post-conviction re-
lief. Atkins v. State, 49A04-0903-PC-169 (Ind. Ct. App.
Oct. 20, 2009). In doing so, the appellate court only ad-
No. 11-1891 7
dressed the deficient performance prong of the Strickland
test, ruling that “[c]ounsel has the discretion to deter-
mine what strategy is best under the circumstances . . . .
It is not for us to speculate as to what may or may not
have been advantageous trial strategy.” Following this
decision, the Indiana Supreme Court denied review.
Atkins then petitioned the district court for a writ of
habeas corpus based on his ineffective assistance of
counsel argument. The district court denied the petition,
but granted a certificate of appealability. Atkins v. Super-
intendent, 3:10-cv-085-JVB, 2011 WL 971169 (N.D. Ind.
Mar. 17, 2011). Atkins appealed. Additional facts are
added below as needed.
II. Analysis
On appeal, Atkins argues that his “right to effective
assistance of counsel was violated when counsel know-
ingly raised a false alibi defense during opening state-
ments,” even though counsel “had no witnesses or evi-
dence to support it.” According to Atkins, Ess’s perfor-
mance was so deficient that it prejudiced his defense.
In that same vein, Atkins argues that the Indiana state
courts unreasonably applied federal law when denying
his request for post-conviction relief.
A. Standard of Review
When conducting a habeas review, “a federal court is
limited to deciding whether a conviction violated the
8 No. 11-1891
Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omit-
ted). “In an appeal from a ruling on a petition for
habeas relief, we review the district court’s findings of
fact for clear error and its rulings on issues of law de
novo.” Denny v. Gudmanson, 252 F.3d 896, 900 (7th Cir.
2001).
When a state court has ruled on the merits of a
habeas claim, our review is circumscribed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See 28 U.S.C. § 2254(d); Harrington v. Richter,
___ U.S. ___, 131 S.Ct. 770, 783-84, 178 L.Ed.2d 624(2011). Under AEDPA, we may grant relief only if the
state court’s decision on the merits “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States” or “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. § 2254(d)(1) and (2). Plainly
stated, these are demanding standards. This Court has
recognized that federal courts should deny a habeas
corpus petition so long as the state court took the con-
stitutional standard “seriously and produce[d] an
answer within the range of defensible positions.”
Mendiola v. Schomig, 224 F.3d 589, 591-92 (7th Cir. 2000);
see also Simpson v. Battaglia, 458 F.3d 585, 592 (7th Cir.
2006) (“[A] state court’s application of federal constitu-
tional law will be upheld if it is at least minimally con-
sistent with the facts and circumstances of the case.”)
(citation and internal quotations omitted); Harrington,
No. 11-1891 9
131 S.Ct. at 788 (“Federal habeas courts must guard
against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d).”).
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 peti-
tioner’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 quota-
tions 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 perfor-
mance 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 pro-
ceedings”); 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 inef-
fective assistance of counsel argument.
10 No. 11-1891
B. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Atkins
must meet both the deficient performance prong and
the prejudice prong articulated in Strickland, 466 U.S. 668.
In other words, Atkins must show that Ess performed
in such a deficient manner that it deprived him of his
guaranteed Sixth Amendment right to counsel, thus
prejudicing his defense to the point that the result of
the trial was rendered unreliable. Id. at 687.
With respect to deficient performance, the petitioner
must show that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. at 687. This
analysis is based on “prevailing professional norms.” Id.
at 688. Importantly, “[j]udicial scrutiny of counsel’s
performance must be highly deferential,” indulging a
“strong presumption” of effectiveness to combat “the
distorting effects of hindsight.” Id. at 689.
On this point, the Indiana Court of Appeals concluded
that counsel’s decisions were strategic in nature and
reasonable under the circumstances, holding that: “Ess’s
decision to pursue the misidentification defense is a
strategic decision that we will not second-guess.” Atkins
counters that even if Ess’s decision to knowingly lie
to a jury while pursuing an alibi/misidentification
defense falls within the realm of “strategy,” it still was
not “reasonable” under Strickland. According to Atkins,
the unreasonableness of Ess’s decision is bolstered by
his failure to file a statutorily-required notice of alibi
and his failure to tender an alibi-related jury instruction.
No. 11-1891 11
Indeed, “a number of courts have found ineffective as-
sistance of counsel in violation of the Sixth Amendment
where . . . a defendant’s trial counsel fails to file a
timely alibi notice[.]” Clinkscale v. Carter, 375 F.3d 430,
443 (6th Cir. 2004) (collecting cases). In sum, Atkins
argues that the defense strategy was so ill-conceived
and halfhearted that it “totally gutted defense counsel’s
credibility with the jury” and rendered Ess’s counsel
constitutionally deficient.
Here, however, it is important to remain cognizant
that Ess’s performance, viewed as a whole, is what matters.
See Valenzuela v. United States, 261 F.3d 694, 698-99
(7th Cir. 2001) (court must consider reasonableness of
counsel’s conduct “in the context of the case as a whole”).
And although the portions of Ess’s opening statement
about Georgia may have been inappropriate and mis-
guided, we cannot conclude that the Indiana courts
applied Strickland in an unreasonable fashion, par-
ticularly given the strong presumption that counsel’s
performance was effective. Strickland, 466 U.S. at 689.
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 quarter-
backing. 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 defi-
cient.”). As a practical matter, Ess’s strategy options
were exceedingly limited. He advised Atkins that the
12 No. 11-1891
“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 contin-
gent 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 cir-
cumstances 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 ade-
quately. Prior to trial, Ess took Yvonne’s deposition,
reviewed discovery, conceived ways to impeach
Yvonne, filed a motion in limine concerning a
telephone call Atkins had made to Yvonne after the
attack, and formulated a trial strategy. At trial, Ess chal-
lenged Yvonne’s identification of Atkins as her
assailant directly and indirectly in a variety of ways.
For instance, the evidence showed that Yvonne was the
only person who saw Atkins, that she had consumed
five beers on the night of the incident, that her lights
No. 11-1891 13
were off during the incident, that she had prior alterca-
tions with Atkins, and that she had a history of gen-
eralized anxiety disorder.
Viewing Ess’s performance as a whole, we find that
the state courts did not apply Strickland in an unrea-
sonable fashion. All in all, Ess was dealt a tough hand
by a difficult client. Facing an uphill battle from the
start, Ess did what he could to maximize his client’s
chances of acquittal.
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 acknowl-
edges, 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). Although opening
statements are not evidence, see United States v. DeSilva,
505 F.3d 711, 718 (7th Cir. 2007), common sense
suggests that this same reasoning applies with equal
force to the present circumstances.
Because we have determined that Ess’s counsel was
not constitutionally deficient, a prejudice analysis is
more academic than pragmatic. Moreover, courts need
14 No. 11-1891
not address both prongs of Strickland. In fact, Strickland
itself advised courts that “[i]f it is easier to dispose of
[the] claim on the ground of lack of sufficient prejudice, . . .
that course should be followed.” Strickland, 466 U.S. at
697. Here, we cannot say with certitude that the
prejudice prong is the easier analysis. What we can say,
however, is that an analysis of Strickland’s second prong
leads to the same result: the denial of Atkins’s petition.
On appeal, Atkins contends that “[t]here is significant
evidence [that he] would have been convicted of a
lesser included offense but for counsel’s acts and omis-
sions.” Atkins’s entire argument boils down to the fact
that Yvonne’s stab wounds were not particularly
deep. Therefore, a jury could have reasoned that Atkins
lacked the requisite intent to kill. There are, however, a
host of problems with this argument, which is
little more than an invitation for the Court to make
speculation-fueled inferential leaps. Most notably,
Atkins readily admits that he “stuck” Yvonne, and ten
stab wounds—one that was less than one inch from her
heart and another that cut her spleen—are damning
evidence supporting an intent to kill. Moreover, the
fact remains that Atkins chose not to testify, thus making
an intent-based defense essentially untenable. Finally,
Atkins’s argument ignores the fact that the jury was free
to consider the location and depth of the stab wounds
and, from there, infer that Atkins lacked the requisite
intent for an attempted murder charge. On this point,
it is worth highlighting that the jury was instructed on
lesser-included offenses. Overall, the record estab-
lishes that Atkins cannot show a “reasonable probability”
No. 11-1891 15
that, but for Ess’s alleged errors, “the result of the pro-
ceedings would have been different.” Id. at 695.
III. Conclusion
For the foregoing reasons, we A FFIRM the decision of
the district court.
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