F I L E D United States Court of Appeals Tenth Circuit PUBLISH FEB 27 1997 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
WILLIAM C. HOUCHIN, JR.,
Petitioner-Appellant,
v. No. 96-1187
ARISTEDES W. ZAVARAS, Director, Colorado Department of Corrections,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. CIV-93-K-2651)
Submitted on the briefs:
Jean E. Dubofsky of Jean E. Dubofsky, P.C., Boulder, Colorado, for Petitioner-Appellant.
Gale A. Norton, Attorney General, and Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Respondent-Appellee.
Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.
HENRY, Circuit Judge. Petitioner William C. Houchin, Jr. appeals from an order of the district
court denying his petition for habeas corpus relief filed pursuant to 28 U.S.C.
§ 2254. See Houchin v. Zavaras, 919 F. Supp. 1480 (D. Colo. 1996) (Houchin I).
We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 1
I. Facts
In March 1984, Mr. Houchin was convicted of two counts of first-degree
murder for killing his father- and mother-in-law, Mr. and Mrs. Naureth. He was
sentenced to two consecutive life sentences without parole.
Mr. Houchin had been living in the basement apartment in the Naureths’
home, located in Pueblo, Colorado, with his wife Linda, the Naureth’s daughter.
On the night before the murders, Linda informed Mr. Houchin that she wanted a
divorce. Mr. Houchin left the Naureth home, but returned the next day when
Linda and her mother were out. Mr. Naureth was working on his truck in the
garage. Mr. Houchin went to the garage with his gun, where he apparently
struggled with Mr. Naureth. Mr. Naureth was shot twice and Mr. Houchin was
shot once in the arm. Mr. Houchin then went to the basement apartment, changed
1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
-2- his shirt and bound his wound, picked up a rifle, returned to the garage, and again
shot Mr. Naureth, this time in the head at close range.
Mr. Houchin then destroyed furnishings in the house and killed the family
dog. When Linda and Mrs. Naureth returned home, Mr. Houchin was still in the
house with a revolver and a rifle. Mrs. Naureth attempted to flee through the
garage, as Linda attempted to restrain Mr. Houchin. Mr. Houchin shoved Linda
against the wall and she ran out of the house and across the street for help. Mr.
Houchin returned to the garage and fired two shots from his single-action
revolver, one of which hit Mrs. Naureth. She died later at the hospital.
Mr. Houchin then left. The next morning, Mr. Houchin was found asleep
on the seat of his pickup truck in LaVeta, Colorado, near his parents’ home. He
was bleeding from a gunshot wound to his left arm and one of the arresting
officers noticed the odor of alcohol on his breath. He appeared unconscious
while being transported to the hospital and, initially, at the hospital. He regained
consciousness in a manner which caused the treating physician’s assistant to state
that he was unable to rule out malingering as a cause for Mr. Houchin’s comatose
state. Tests performed at the hospital that morning showed that Mr. Houchin had
a blood alcohol level of .232 and a urine alcohol level of .359.
-3- II. Procedural Background
The public defender’s office initially represented Mr. Houchin. Later,
Mr. Houchin’s father retained as private counsel Thomas H. Heaton, a
Massachusetts attorney whom the father had met in the course of a real estate
transaction. Mr. Heaton secured local co-counsel, Terry Perlet.
Following his conviction, Mr. Houchin appealed. The Colorado Court of
Appeals granted a limited remand to permit the district court to consider, under
Colo. R. Crim. P. 35(c), Mr. Houchin’s claim that he had received ineffective
assistance of counsel in violation of the United States and Colorado Constitutions.
The trial court determined that both counsel were ineffective in some respects but
that their overall performance did not amount to constitutionally ineffective
assistance. The Colorado Court of Appeals affirmed but determined that
counsels’ overall performance was below the level of reasonably competent
assistance to which Mr. Houchin was constitutionally entitled. However, the
court held that the outcome of the trial would not have differed had counsels’
performance been competent. The Colorado Supreme Court denied certiorari.
Mr. Houchin thereafter filed this petition seeking habeas relief in federal
district court. The district court determined that while Mr. Houchin had received
representation which fell below an objective standard of reasonableness, he had
failed to show a reasonable probability that, but for counsels’ errors, his
-4- convictions would have differed. See Houchin I, 919 F. Supp. at 1496. The court
thus denied habeas relief and Mr. Houchin filed this appeal.
III. Certificate of Appealability
On April 26, 1996, Mr. Houchin filed a notice of appeal and requested a
certificate of probable cause in the district court. The district court granted him a
certificate of appealability. See Houchin v. Zavaras, 924 F. Supp. 115 (D. Colo.
1996) (Houchin II). We initially address whether the district court has the power
vested in it by Congress to grant certificates of appealability.
On April 24, 1996, the President signed the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. The
AEDPA eliminated the requirement that petitioners seeking review of state habeas
petitions obtain a certificate of probable cause from either the district court judge
who ruled on his petition or from a circuit judge in order to appeal. See
28 U.S.C. § 2253 (1995). The AEDPA substituted the requirement that
petitioners seeking review of district court judgments in petitions filed pursuant
to either 28 U.S.C. § 2254 or 28 U.S.C. § 2255 seek a certificate of appealability
with its attendant standards prior to appealing.
-5- The AEDPA contains conflicting statements regarding whether a petitioner
may seek a certificate of appealability from the district court. The AEDPA, at
28 U.S.C. § 2253(c), provides that:
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
The AEDPA also amended Fed. R. App. P. 22(b) so that it now states:
Certificate of appealability.--In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) . . . . If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. . . . If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals.
-6- If an appeal is taken by a State or its representative, a certificate of appealability is not required.
The internal inconsistencies between amended § 2253 and Rule 22 are
readily apparent. The district court determined that it had authority to issue the
certificate of appealability based on Rule 22. Houchin II, 924 F. Supp. at 117.
The court noted that § 2253 did not state that “only” circuit justices and judges
were authorized to issue the certificate, thus not expressly “prohibit[ing] district
judges from exercising the authority vested in us by the Rule of Appellate
Procedure.” Id. We agree.
“In determining the scope of a statute, we look first to its language.”
United States v. Silvers, 84 F.3d 1317, 1321 (10th Cir. 1996) (quotation omitted),
cert. denied, 117 S. Ct. 742 (1997). Section 2253(c)(1) states that “[u]nless a
circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals . . . .” If the adjective “circuit” modifies both
“justice” and “judge,” then a district court judge may not issue a certificate of
appealability. However, Rule 22(b) provides that “a district or a circuit judge”
may issue the certificate of appealability in a § 2254 proceeding.
In reconciling this apparent conflict between the statute and the rule, we
bear in mind that when construing a statute, the text of each provision should be
read so as to give effect to all of the statute’s provisions. See Homeland Stores,
Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1273 (10th Cir. 1994). If we were
-7- to determine that the adjective “circuit” necessarily modifies both “justice” and
“judge,” the effect would be to deny the district court judge the authority to issue
a certificate of appealability, thus nullifying the language of the amended Rule
22(b). This we may not do.
A review of the history of proposals to amend the provisions for issuance
of a certificate permitting appeals from collateral review shows that efforts to
deny district judges the ability to issue such certificates have consistently failed.
See Hunter v. United States, 101 F.3d 1565, 1577-83 (11th Cir. 1996) (examining
efforts by Congress to amend the procedure for obtaining certificates for appeal in
light of Judge Henry J. Friendly’s article Is Innocence Irrelevant?: Collateral
Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142 (1970)).
Because Congress has historically “chose[n] to leave district judges with
the authority to issue such certificates,” id. at 1577, we hold that, absent express
rejection, Congress likewise intended in the AEDPA that district court judges
would have the authority to issue certificates of appealability. See Emergency
General Order, 1996 U.S. 96-41, at 2 (10th Cir. Oct. 1, 1996).
We emphasize that our holding extends only to the authority district court
judges retain to issue certificates of appealability in § 2254 appeals under the
provisions of the AEDPA. We decline, at this time, to address whether district
court judges may also issue certificates of appealability in appeals arising under
-8- § 2255. Compare Hunter, 101 F.3d at 1575, n.8 (concluding that district judges
may issue certificates of appealability in § 2255 appeals because to hold
otherwise would negate the “basic rule of statutory construction that identical
words [even when] used in different parts of the same act are intended to have the
same meaning.” (quotation omitted)); with United States v. Cota-Loaiza, 936 F.
Supp. 756, 759-61 (D. Colo. 1996) (holding that because Rule 22(b) expressly
limits its applicability to proceedings arising out of processes issued by a state
court, district judges may not issue certificates of appealability in appeals taken
from denials of § 2255 petitions); with United States v. Campos, 932 F. Supp.
1034, 1038 (W.D. Tenn. 1996) (denying a certificate of appealability in appeal
taken from a § 2255 petition “to the extent that a district court has the authority to
rule on the issuance of a certificate of appealability under amended 28 U.S.C.
§ 2253”).
-9- As the district court has properly issued a certificate of appealability, we
now address the merits of this appeal. 2
IV. Standard of Review
In reviewing the denial of a petitioner’s habeas petition, 3 we accept the
district court’s factual findings unless they are clearly erroneous and we review
the court’s legal conclusions de novo. Hill v. Reynolds, 942 F.2d 1494, 1495
(10th Cir. 1991). “We review an ineffectiveness [of counsel] claim de novo, as it
presents a mixed question of law and fact.” Davis v. Executive Dir. of Dep’t of
Corrections 100 F.3d 750, 759 (10th Cir. 1996). Because there is a strong
presumption that counsel acted reasonably and represented his client effectively,
we review counsel’s performance with substantial deference. Id.
2 The district court declined to specify which issue raised by Mr. Houchin satisfied the requirement for issuing a certificate of appealability. However, Mr. Houchin raised only one issue on appeal and, as the court noted, the opinion denying the petition exceeded thirty-nine pages, thus indicating Mr. Houchin had “made a substantial showing of the denial of a constitutional right.” Section 2253(c)(2). The court adequately complied with the requirements of § 2253(c)(3). 3 We need not determine whether § 2244(d) as amended by the AEDPA to require that a petitioner file his federal collateral action within one year of the final determination of the criminal action in state court applies to this case. Mr. Houchin’s petition was filed within this one-year period. Cf. United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (holding that one-year requirement is not retroactive in appeals brought pursuant to § 2255).
-10- The AEDPA amended the standards for reviewing state court judgments in
§ 2254 proceedings. Section 2254(e), like the prior § 2254(d), provides that a
state court's determination of a factual issue “shall be presumed to be correct.”
The amended § 2254(e), goes further, however, and states that the habeas
petitioner “shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” In addition, § 2254(d) now sets forth the
deference to be afforded the state’s legal determinations:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.
Thus the AEDPA increases the deference to be paid by the federal courts to
the state court’s factual findings and legal determinations. While courts normally
apply the law in force at the time of their decision, they will not use the new law
if its application would have a retroactive effect. See Landgraf v. USI Film
Prods., 511 U.S. 244, 264 (1994). The Supreme Court has recently accepted
certiorari on this issue. See Lindh v. Murphy, 117 S. Ct. 726 (1997) (accepting
-11- certiorari on the question of whether § 107(c) of AEDPA fails to specify the
extent to which § 2254(d) is to apply retroactively to pending habeas petitions,
and, if so, whether the court correctly determined that the “habeas-curtailing
statutes apply retroactively?” 65 U.S.L.W. 3483 (Jan. 14, 1997)). We need not
await the Supreme Court’s decision on these issues as Mr. Houchin cannot prevail
under either version of the statute.
V. Ineffective Assistance of Counsel
The Sixth Amendment provides that an accused has the right to assistance
of counsel in all criminal prosecutions. U.S. Const. amend. VI. Courts have
recognized that this right to assistance of counsel includes the right to effective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984).
The right to effective counsel exists “in order to protect the fundamental right to a
fair trial.” Id. at 864; see also Nix v. Whiteside, 475 U.S. 157, 175 (1986)
(benchmark of the right to counsel is the fairness of the adversarial proceeding);
United States v. Cronic, 466 U.S. 648, 653 (1984) (the right to trial would be of
little avail without counsel).
In examining the conduct of counsel, we “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Strickland, 466 U.S. at 690. “Absent some effect of
-12- challenged conduct on the reliability of the trial process, the Sixth Amendment
guarantee is generally not implicated.” Cronic, 466 U.S. at 658.
Mr. Houchin contends that, had counsel provided competent assistance, he
would not have been convicted of first degree murder, but would, instead, have
been convicted of second degree murder, with its attendant shorter prison term
and parole considerations. Mr. Houchin challenges the adequacy of trial counsel,
Mr. Heaton and Mr. Perlet, in two respects. He contends counsel failed to subject
the prosecution’s case to meaningful adversarial testing and, therefore, prejudice
should be presumed under the standards announced in Cronic. He also contends
that he showed actual prejudice under the standards set forth in Strickland.
A. Cronic Analysis:
In Cronic, the Supreme Court held that circumstances can be present which
are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.
466 U.S. at 658-59 (footnotes omitted).
-13- Mr. Houchin contends counsel failed to subject the prosecution’s case to
meaningful adversarial testing because Mr. Perlet failed to clearly articulate
Mr. Houchin’s defenses in his opening statement, failed to proffer jury
instructions to support the defense theories, and should have spent more time with
Mr. Houchin preparing him for trial. He also asserts Mr. Heaton’s apparent
intoxication and improper conduct at trial support a finding of presumed
prejudice.
The record contains no evidence that Mr. Perlet conveyed to the jury that he
believed Mr. Houchin was guilty or that he, in any other way, abandoned his duty
of loyalty to Mr. Houchin and aligned himself with the prosecution in its efforts
to obtain a conviction. Compare Davis, 100 F.3d at 759 (counsel’s description of
the case as “one of the worst ones I have ever seen” and expression of his hatred
for defendant and the crimes did not constitute abandonment of his client under
the circumstances); with Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir.1988)
(where defense counsel effectively joined the state to obtain a death sentence,
court concluded that prejudice was “established under any applicable standard”).
Upon examination of the entire record in light of the standard announced in
Cronic for presumed prejudice, we agree with the district court that, despite the
errors of counsel, the adversarial testing envisioned by the Sixth Amendment
occurred. Prejudice cannot be presumed in this case.
-14- B. Strickland Analysis
To establish a claim of ineffective assistance of counsel under Strickland, a
defendant must first show that counsel committed serious errors in light of
prevailing professional norms so that the “representation fell below an objective
standard of reasonableness.” 466 U.S. at 688. Second, the petitioner must
establish that he was prejudiced by counsel’s representation. Id. at 687. We
refrain from using hindsight to second-guess counsel’s tactical decisions. Id. at
689.
In his petition, Mr. Houchin alleged defense counsel essentially abandoned
his only viable defense, i.e., that he lacked the requisite specific intent for first
degree murder. He asserted counsel (1) failed to investigate forensic evidence
which could have revealed his lack of intent to commit murder when he shot
Mr. and Mrs. Naureth, (2) failed to interview witnesses who could testify about
Mr. Houchin's later conversations concerning his lack of intent to murder the
Naureths; (3) failed to inform the jury during opening statements and closing
arguments of his lack of intent to commit murder; and (4) failed to submit jury
instructions concerning his lack of mens rea. He also alleged Mr. Heaton’s
performance met the first prong of Strickland because he cross-examined one
witness while he was not sober. He further alleged Mr. Perlet violated his
-15- constitutional right to effective counsel because he failed to meet with
Mr. Houchin sufficiently before trial to prepare him for testifying.
We agree with the district court that Mr. Houchin’s counsel did provide
inadequate representation, which clearly meets the first prong of Strickland based
on “[Mr.] Perlet’s failure to present a theory of defense to the jury, to submit a
jury instruction concerning mens rea, and to visit [Mr.] Houchin during the course
of the trial and [Mr.] Heaton’s lack of sobriety and cross-examination of witness
Ron Miller at trial.” Houchin I, 919 F. Supp. at 1496. We, therefore, address the
second, prejudice prong of Strickland.
To establish prejudice, a petitioner must show “a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Examination of the record reveals overwhelming evidence of
Mr. Houchin’s intent to kill the Naureths. Nothing can negate the fact that after
Mr. Naureth was shot, Mr. Houchin went back into the house, down into the
basement where he changed his shirt and bound his wound, got his rifle, went
upstairs where he may have had a drink, and then returned to the garage where he
shot Mr. Naureth in the head at close range. Review of the Rule 35 hearing
shows that no additional evidence was or could have been presented which would
-16- have raised a reasonable doubt that Mr. Houchin was too drunk at that time to
know what he was doing.
Likewise, Mr. Houchin shot Mrs. Naureth twice with a single-action
revolver which meant that he had to pull the hammer back each time he pulled the
trigger in order to fire the gun. Witnesses who testified at the Rule 35 hearing
indicated there was no definite sign that Mr. Houchin was drunk the night of the
shootings and that attempts to extrapolate back to his blood alcohol level from the
level found the next morning were too speculative. Expert witnesses at the Rule
35 hearing concluded that the third shot to Mr. Naureth was the fatal one because
Mr. Naureth wrote “I love fam” in the dust on the garage floor and because of the
amount of blood from the head wound, both of which indicated he was alive when
shot in the head, a shot which would have been instantly fatal.
The evidence of intent was overwhelming. Even had counsels’
performances not been below the objective standard of reasonableness, no
reasonable probability exists that the outcome of Mr. Houchin’s trial would have
been different. In the absence of prejudice, we do not find reversible error.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
-17-