Timothy G. McGurk v. Donald Stenberg ( 1998 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 97-4253
    ___________
    Timothy G. McGurk;                      *
    *
    Appellant;           *
    *
    v.                          *     Appeal from the United States
    *     District Court for the
    Donald Stenberg, Attorney General       *     District of Nebraska.
    for the State of Nebraska; Michael      *
    Thurber, Superintendent of the          *
    Lancaster County Jail;                  *
    *
    Appellees.           *
    Submitted: October 21, 1998
    Filed: December 10, 1998
    Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.
    HEANEY, Circuit Judge.
    Timothy G. McGurk was charged with operating a motor vehicle while under the
    influence of alcohol (DWI) and was convicted upon a bench trial in the County Court
    of Lancaster County, Nebraska. Because this was McGurk’s third such offense, the
    court sentenced him to three months imprisonment, a five-hundred dollar fine, and a
    fifteen-year suspension of driving privileges. McGurk pursued direct and collateral
    relief in the Nebraska courts and then instituted proceedings for federal habeas relief
    under 
    28 U.S.C. § 2554
    . The district court declined to follow the magistrate’s
    recommendation that, as a result of trial counsel’s failure to inform McGurk of his right
    to a trial by jury, the writ should issue. Because failure to inform a defendant charged
    with a serious crime of the right to trial by jury constitutes structural error and thus
    presumptively violates his Sixth and Fourteenth Amendment right to effective
    assistance of counsel, we reverse and remand with instructions to issue the writ of
    habeas corpus unless, within a reasonable time to be designated by the district court,
    the state affords McGurk a new trial.1
    I. Background
    On May 23, 1990, a panel of this court held that a person charged under
    Nebraska law for third-offense DWI must be afforded the right to trial by jury. See
    Richter v. Fairbanks, 
    903 F.2d 1202
    , 1204-06 (8th Cir. 1990). Reasoning that
    maximum penalties of three to six months imprisonment and fifteen years revocation
    of a driver’s license “manifested the kind of strong disapproval associated with a
    serious crime,” we held Nebraska Revised Statute § 25-2705 (then 
    Neb. Rev. Stat. § 24-536
    ) unconstitutional insofar as it prohibited jury trials on the charge of DWI, third
    offense. 
    Id.
     at 1205 (citing Blanton v. City of North Las Vegas, 
    489 U.S. 538
     (1989));
    see State v. Wiltshire, 
    491 N.W.2d 324
    , 327 (Neb. 1992) (explaining statutory
    scheme).
    1
    Because petitioner’s case was pending before the federal courts before April 24,
    1996, the amendments to habeas corpus law contained in Title I of the Antiterrorism
    and Effective Death Penalty Act (AEDPA) of 1996 do not apply. See Lindh v.
    Murphy, --- U.S. ---, 
    117 S. Ct. 2059
     (1997). As McGurk’s appeal was lodged after
    that date, however, the provisions of the AEDPA pertaining to certificates of
    appealability do apply to this appeal. See Tiedman v. Benson, 
    122 F.3d 518
    , 521 (8th
    Cir. 1997).
    2
    McGurk was arrested for DWI in September 1990 and his case was tried on
    January 8, 1991. Neither McGurk’s counsel nor the trial court informed him of his
    right to a jury trial, nor did McGurk waive that right. After his conviction and
    sentencing, McGurk filed direct appeals in the Nebraska courts. Two days after the
    Nebraska Supreme Court affirmed McGurk’s conviction, that same court adopted the
    Eighth Circuit’s position in Richter, ruling that the Sixth and Fourteenth Amendments
    require the opportunity for a jury trial on the charge of DWI, third offense. See
    Wiltshire, 491 N.W.2d at 327.
    After prematurely seeking federal habeas relief under 
    28 U.S.C. § 2254
    , McGurk
    returned to the Nebraska courts and filed for post-conviction relief, claiming 1) his
    conviction was obtained in violation of his Sixth Amendment right to a trial by jury; and
    2) his counsel was ineffective in not advising McGurk of his right to trial by jury and
    not preserving and assigning the error for subsequent review. The county court
    rejected both claims on the merits after a hearing and the district court affirmed without
    comment. The Nebraska Court of Appeals also affirmed, concluding that while
    petitioner’s trial counsel did in fact perform deficiently, the claim did not establish
    Strickland prejudice. See State v. McGurk, 
    532 N.W.2d 354
     (Neb. Ct. App. 1995).
    The appeals court did not address McGurk’s jury-trial claim. McGurk sought
    discretionary review of the ineffective assistance portion of the appeals court’s decision
    and the Nebraska Supreme Court denied the petition without comment.
    On August 11, 1995, McGurk filed the present petition in federal district court.
    The Magistrate ruled that only McGurk’s claim of ineffective assistance of counsel
    survived for review on the merits.2 On the ineffective assistance claim, the magistrate
    2
    Under Dolny v. Erickson, 
    32 F.3d 381
    , 384 (8th Cir. 1994), discretionary appeal
    to a state’s highest court is not necessary to satisfy exhaustion requirements. The
    Magistrate nonetheless ruled that McGurk’s failure to appeal both his first and second
    claim to the Nebraska Supreme Court resulted in a failure to exhaust his state court
    3
    determined that the Nebraska Court of Appeals erroneously subjected the ineffective
    assistance of counsel claim to harmless error analysis. The magistrate reasoned that
    no showing of prejudice is required where deficient performance results in the loss of
    the right to make an election of trial by jury.3
    The district court disagreed, stating that under the facts of this case, prejudice
    should not be presumed and that McGurk failed to show actual prejudice. Recognizing
    the conflict between the district court and the magistrate, the district court granted a
    certificate of appealability on the issue of prejudice.
    II. Discussion
    McGurk alleges that his trial counsel’s failure to discover that a defendant
    charged with DWI, third offense, has a right to a trial by jury, and the resultant failure
    to inform McGurk of that right at the time of trial or to raise the issue on direct appeal,
    constituted ineffective performance. We agree.
    remedies and thus a procedural default barring review on the merits. The Magistrate
    reasoned that although permissive appeal is not required under Dolny in order to
    achieve exhaustion, the better rule is that once a petitioner decides to appeal
    permissively, he must include all arguments in that appeal. Because we find
    petitioner’s ineffective assistance claim dispositive, we have no occasion to decide
    whether a petitioner must, when appealing to a state’s highest court, include all
    arguments--even those arguments not addressed by an intermediate court of appeals--
    in order to avoid procedural default.
    3
    The magistrate additionally concluded that even if harmless error was the
    correct standard, however, the state court of appeals nonetheless erred in finding the
    error harmless.
    4
    We review questions of ineffective assistance of counsel based on an undisputed
    factual record de novo.4 See Laws v. Armontrout, 
    863 F.2d 1377
    , 1381 (8th Cir.
    1988), cert. denied, 
    490 U.S. 1040
     (1989); see also Strickland v. Washington, 
    466 U.S. 668
    , 698 (“[I]n a federal habeas challenge to a state criminal judgment, a state court
    conclusion that counsel rendered effective assistance is not a finding of fact binding on
    the federal court to the extent stated by 
    28 U.S.C. § 2254
    (d).”). McGurk was entitled
    to effective assistance of counsel at his trial, see Strickland, 
    466 U.S. at 687-88
    , and
    at his appeal of right, see Evitts v. Lucey, 
    469 U.S. 387
    , 396 (1985). The “benchmark
    for judging any claim of ineffectiveness must be whether counsel’s conduct so
    undermined the proper functioning of the adversarial process that the trial cannot be
    relied on as having produced a just result.” Strickland, 
    466 U.S. at 686
    . To establish
    ineffective assistance of counsel, McGurk must show that counsel’s performance was
    deficient and that such deficient performance prejudiced his defense. See 
    id. at 687-89
    ;
    Schumacher v. Hopkins, 
    83 F.3d 1034
    , 1036 (8th Cir. 1996). In making his showing
    of deficiency, petitioner must overcome a “strong presumption that counsel’s conduct
    falls within the wide range of reasonable professional assistance.” Strickland, 
    466 U.S. at 689
    . “Given the considerable discretion to be afforded counsel, a defendant is more
    likely to prevail on an ineffective assistance of counsel claim where the error he points
    to arises from counsel’s lack of diligence rather than the exercise of judgment.” United
    States v. Loughery, 
    908 F.2d 1014
    , 1018 (D.C. Cir. 1990) (citing 2 W. LaFave & J.
    Israel, Criminal Procedure § 11.10(c), at 44 (Supp. 1990)). Once deficient
    performance has been established, petitioner must demonstrate “a reasonable
    probability that but for counsel’s unprofessional errors, the result of the proceeding
    would have been different.” Schumacher, 
    83 F.3d at
    1037 (citing Lockhart v. Fretwell,
    
    506 U.S. 364
    , 368-70 (1993)).
    4
    Though the state takes exception to several minor aspects of petitioner’s
    statement of the facts, we read both briefs to be in fundamental agreement on the
    factual background of the case.
    5
    In articulating the prejudice component of the Strickland analysis, the Supreme
    Court provided that in certain circumstances the requisite showing of prejudice may be
    presumed due to the nature of the deficient performance. See 
    466 U.S. at 692
     (“In
    certain Sixth Amendment contexts, prejudice is presumed.”); United States v. Cronic,
    
    466 U.S. 648
    , 656-58 (1984) (elaborating, in companion case to Strickland, on the
    presumptive prejudice concept). Due to the fact that prejudice may be presumed “only
    when surrounding circumstances justify a presumption of ineffectiveness[,]” Cronic,
    
    466 U.S. at 662
    , courts have been appropriately cautious in presuming prejudice. See
    Scarpa v. Bubois, 
    38 F.3d 1
    , 12 (1st Cir. 1994) (stating that “a showing of actual
    prejudice remain[s] a necessary element” in most cases). For the most part, courts have
    presumed prejudice only where the defendant establishes a constructive denial of
    counsel. See Tucker v. Day, 
    969 F.2d 155
    , 159 (5th Cir. 1992) (counsel remained
    silent through resentencing hearing); United States v. Mateo, 
    950 F.2d 44
    , 48-50 (1st
    Cir. 1991) (same throughout trial despite absence of waiver); Harding v. Davis, 
    878 F.2d 1341
    , 1345 (11th Cir. 1989) (failure to object to directed verdict by trial court);
    Javor v. United States, 
    724 F.2d 831
    , 833 (9th Cir. 1984) (attorney slept through
    substantial portion of trial). Courts have also identified, however, some types of trial
    errors that justify a finding of presumptive prejudice. See U.S. v. Swanson, 
    943 F.2d 1070
    , 1074 (9th Cir. 1991) (explicit concession of reasonable doubt in closing
    argument per se prejudicial); Osborn v. Shillinger, 
    861 F.2d 612
    , 628-29 (10th Cir.
    1988) (counsel’s closing at sentencing hearing undermined defendant’s interests).
    Recognizing the extremely limited circumstances in which it is appropriate to presume
    prejudice, we conclude that the constitutional error in this case, namely counsel’s
    failure to inform McGurk of his right to a jury trial, justifies a presumption of prejudice.
    We find additional guidance in determining that a presumption of prejudice is
    appropriate from a line of Supreme Court decisions identifying some types of trial
    errors that are not amenable to harmless-error analysis, but instead constitute
    “structural defects in the constitution of the trial mechanism,” which so “affect[] the
    framework within which the trial proceeds” that they require automatic reversal.
    6
    Arizona v. Fulminante, 
    499 U.S. 279
    , 310-11 (1991) (Rehnquist, C.J., for Court in part
    and dissenting in part); see Starr v. Lockhart, 
    23 F.3d 1280
    , 1291 (8th Cir. 1994)
    (“Certain structural errors, however, can never be harmless.”); see also Chapman v.
    California, 
    386 U.S. 18
    , 23-24 (1967) (stating that certain errors undermined rights “so
    basic to a fair trial” that they can never be treated as harmless error). The Supreme
    Court has identified two types of constitutional errors that may occur during a trial. See
    Fulminante, 
    499 U.S. at 307-10
    . The first type, “trial errors,” are amenable to harmless
    error analysis, “occur[] during the presentation of the case to the jury,” and are
    susceptible of “quantitative[] assess[ment] in the context of other evidence presented
    in order to determine whether . . . [the error] was harmless beyond a reasonable doubt.”
    Fulminante, 
    499 U.S. at 307
    . “Structural errors,” on the other hand, call into question
    the very accuracy and reliability of the trial process and thus are not amenable to
    harmless error analysis, but require automatic reversal. See 
    id. at 309-10
    ; Brecht v.
    Abrahamson, 
    507 U.S. 619
    , 629-30 (1993) (ruling that structural errors “require[]
    automatic reversal . . . because they infect the entire trial process”).
    Despite the “strong presumption that constitutional errors can be harmless,” U.S.
    v. Raether, 
    82 F.3d 192
    , 194 (8th Cir. 1996), we conclude that the denial of a jury trial
    is a structural error subject to automatic reversal. Petitioner was denied the opportunity
    to be tried before a jury of his peers and counsel for petitioner failed to inform him that
    our court had held DWI, third offense, to constitute a “serious crime” under Nebraska
    law, thus entitling petitioner to the opportunity for trial by jury. See Richter, 
    903 F.2d at 1204
    ; see also Duncan v. Louisiana, 
    391 U.S. 145
    , 149 (1968) (holding that trial by
    jury in serious criminal cases is “fundamental to the American scheme of justice” and
    thereby applicable in state proceedings).
    In Sullivan v. Louisiana, Justice Scalia for a unanimous Court held that
    utilization of harmless error analysis in reviewing an invalid jury instruction on
    reasonable doubt violated the defendant’s Sixth and Fourteenth Amendment right to
    trial by jury. See 
    508 U.S. 275
    , 279 (1993). The Court observed that the role of an
    7
    appellate judge employing harmless-error review is not to speculate as to what a
    hypothetical jury might have done, but rather to investigate “the basis on which ‘the jury
    actually rested its verdict.’” 
    Id. at 279
     (quoting Yates v. Evatt, 
    500 U.S. 391
    , 404, 
    111 S. Ct. 1884
    , 1893, 
    114 L. Ed.2d 432
     (1991)). The Court stated:
    The inquiry, in other words, is not whether, in a trial that
    occurred without the error, a guilty verdict would surely
    have been rendered, but whether the guilty verdict actually
    rendered in this trial was surely unattributable to the error.
    That must be so, because to hypothesize a guilty verdict that
    was never in fact rendered--no matter how inescapable the
    findings to support that verdict might be--would violate the
    jury-trial guarantee. . . . There being no jury verdict of
    guilty-beyond-a-reasonable-doubt, the question whether the
    same verdict of guilty-beyond-a-reasonable-doubt would
    have been rendered absent the constitutional error is utterly
    meaningless. There is no object, so to speak, upon which
    harmless-error scrutiny can operate.
    Id. at 280 (citations omitted).
    We find the lesson of Sullivan equally persuasive in this case and agree with the
    magistrate that Sullivan dictates the conclusion that the Nebraska Court of Appeals
    erred in requiring a showing of actual prejudice. While Sullivan concerned a defendant
    whose right to trial by jury was diminished due to a faulty jury instruction, McGurk’s
    right to a trial by jury was denied entirely. This deprivation is of a similar constitutional
    dimension to other “structural defects” held by the Court to warrant automatic reversal.
    See Fulminante, 
    499 U.S. at
    309-10 (citing Vasquez v. Hillery, 
    474 U.S. 254
    , 264
    (1986) (intentional race discrimination in selection of grand jury); Waller v. Georgia,
    
    467 U.S. 39
    , 49 n.9 (1984) (right to a public trial); McKaskle v. Wiggins, 
    465 U.S. 168
    , 177 n.8 (1984) (right to self-representation at trial). Accordingly, we hold that
    when counsel’s deficient performance causes a structural error, we will presume
    8
    prejudice under Strickland.5 Therefore, we reverse and remand the case with
    instructions to issue the writ of habeas corpus unless, within a reasonable time to be
    designated by the district court, the state affords petitioner a new trial.
    A true copy.
    Attest.
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    5
    As the foregoing discussion suggests, it will be a rare event when the failings
    of counsel rise to the level of structural error. As a practical matter, it is difficult to
    imagine situations that would trigger structural error analysis beyond the failure on the
    part of counsel to inform a defendant of certain basic rights, such as the right to trial by
    jury, to self-representation, or to an appeal as a matter of right. Thus, the narrow
    holding of this case is that failure on the part of counsel to ensure that mechanisms
    fundamental to our system of adversarial proceedings are in place cannot, under the
    reasoning of Sullivan, constitute harmless error.
    9