McNeil v. Cuyler

782 F.2d 443

Opinions

OPINION OF THE COURT

ADAMS, Acting Chief Judge.

In this habeas corpus petition, we must consider whether the district court, in denying a defendant’s claim of ineffective assistance of counsel, correctly applied the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We conclude that the court did not properly apply Strickland, but that it nonetheless reached the appropriate result because the alleged errors of counsel did not prejudice the defendant. Accordingly, we will affirm.

I.

The long procedural history of this case begins with the 1974 murder conviction of Robert A. McNeil by a Chester County jury. He was accused of having shot John Walker on January 14, 1972, after a hostile exchange of words in Buddy’s Apartment Bar in West Chester, Pennsylvania. The evidence showed that, even before the night of the shooting, there had been ill will between Walker and McNeil. A month earlier, Walter Morris, a mutual acquaintance of the two, was talking with McNeil at the Star Social Club when Walker came up and asked Morris, “What are you doing with him”? App. at 537. When Morris asked why Walker did not like McNeil, Walker replied, “The m_ thinks he is cute, if I ever catch him f_with any of my women, I’m going to kill his black ass.” App. at 538.

On the night of the shooting, Walker approached McNeil and two female friends as they sat at the bar. Walker put his hands on McNeil’s shoulders and, when McNeil asked why, Walker said he wanted to talk to one of the women. McNeil then told Walker “just to leave me alone and don’t put [your] hands on me any more because I don’t like anybody touching me.” App. at 559. He got up and put on his coat. As McNeil rose, Walker apologized several times, putting his hands on McNeil as he did so.

McNeil then drew a gun from his right pocket, and turned around. Walker backed up, his hands in the air, still apologizing. The barmaid stepped in between them, apparently to try to stop McNeil from shooting, but then got out of the way. App. at 604. As Walker retreated, McNeil fired several shots in rapid succession, killing Walker and wounding a woman bystander. McNeil then left the bar.

After the jury found McNeil guilty of first degree murder, the trial judge sentenced him to life in prison. Following the denial of his post-trial motions, McNeil, who had been represented at trial by privately retained counsel, filed a direct appeal to the Pennsylvania Supreme Court, with the aid of the Public Defender’s office. That court rejected McNeil’s claims of errors in the trial court’s charge to the jury, because trial counsel had failed to object to the charge. However, the case was remanded for further proceedings to address petitioner’s claims of ineffective assistance of counsel. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975).

Represented by still other counsel, McNeil brought an ineffective assistance of counsel claim under the state’s Post-Conviction Hearing Act (PCHA), 19 Pa.Cons. Stat.Ann. § 1180 et seq. (Purdon 1977). The court denied relief, holding that the ineffectiveness claims had been waived because McNeil had not raised them on direct appeal, and had failed to charge his appellate counsel with ineffective assistance. The ruling was affirmed by the Pennsylvania Supreme Court. Commonwealth v. McNeil, 479 Pa. 382, 388 A.2d 707 (1978).

McNeil then filed a second PCHA petition, this time alleging that all of his prior attorneys had been ineffective. The PCHA court again denied relief. On appeal, a divided Pennsylvania Supreme Court, now considering the merits of the ineffectiveness claims, affirmed the denial. McNeil then filed a petition for habeas corpus in the District Court for the Eastern District of Pennsylvania.

The district court issued a memorandum and order on December 20, 1983, 576 F.Supp. 1343 (1983) granting the writ. “Viewing the record in its entirety,” the district court was “left with the firm conviction that the performance of petitioner’s trial counsel fell far short of the quality of representation to which the petitioner was constitutionally entitled.” App. at 13-14.

Specifically, the district court faulted trial counsel for failing to inform the jury that Walker, the victim, had previously been convicted of aggravated assault. On the facts of the case, the court reasoned, McNeil could have sought an acquittal based on self defense, or a lesser conviction for voluntary manslaughter, based on a genuine but unreasonable fear for his own life. In either case, evidence of Walker’s inclination to violence was critical, and trial counsel’s failure to introduce it was “manifestly a serious dereliction.” App. at 10. At the PCHA hearing, trial counsel explained his action by stating that since he had introduced witnesses who testified that Walker had a reputation for violence in the community, “I thought that had been covered.” App. at 121.

The second error found by the district judge concerned the trial court’s charge to the jury. McNeil’s counsel did not submit any points for charge, and requested only a “general exception” to the charge as delivered. The trial judge’s charge included a long definition of first- and second-degree murder; a charge on the subject of self-defense with stress on the obligation to retreat; and a discussion of that form of voluntary manslaughter based on “heat of passion” and “provocation.” However, there was only a brief reference to the theory of voluntary manslaughter based on the defendant’s genuine but unreasonable belief that the shooting was necessary in self-defense — the type of voluntary manslaughter the district court viewed as most plausibly applicable to McNeil’s defense.

After deliberating for two hours, the jury requested further instructions, asking for “the legal definition of voluntary manslaughter.” In response, the trial judge gave an abbreviated definition of voluntary manslaughter, but omitted reference to manslaughter based on genuine but unreasonable apprehension of danger. McNeil’s lawyer did not object, nor did he ask that the charge be supplemented. The net effect of all this, the district court concluded, was to undermine McNeil’s case that he had killed Walker in fear, whether reasonable or unreasonable. After the writ of habeas corpus was granted, the Commonwealth appealed to this Court.

A short time after the district court’s decision, the Supreme Court decided Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which set out a standard for judging claims of ineffective assistance of counsel under the Sixth Amendment. Upon motion of the Commonwealth, this Court remanded the case to the district court for further proceedings in light of Strickland. On April 3, 1985, the district court issued a new memorandum and order, vacating its previous order “under the compulsion of Strickland ” and denying the writ.

In the second order, the district court reaffirmed its previous finding that McNeil’s trial counsel had performed deficiently. Along with the actions cited as errors in his 1983 order, the court also noted as error trial counsel’s decision to introduce evidence that McNeil had previously been convicted of aggravated battery in the mistaken belief that the then 11-year-old conviction could be used to impeach McNeil’s credibility. App. at 755.

Nonetheless, the district court denied the writ because, it held, McNeil had not met his burden for demonstrating prejudice under Strickland. Under that case, “petitioner must shoulder the (virtually impossible) burden of establishing that, if properly presented, his defenses might well have persuaded the jury.” App. at 756. The district court continued:

Apparently, therefore, this court is expected to review the trial record and arrive at a conclusion as to whether this particular defendant, in this particular case, might well have achieved a more favorable result at trial if his representation had been constitutionally adequate. In all candor, I find it impossible to express any confident conclusion on that subject ...

Since the burden is now upon the petitioner, see Strickland, supra, to establish the requisite kind of prejudice, I conclude that my inability to reconstruct what might have happened if petitioner had been represented at trial by ade quate counsel means that petitioner has not sustained his burden of proof.

Id. McNeil appealed the denial of the writ of habeas corpus to this Court.

II.

A.

In interpreting the Sixth Amendment’s guarantee of the right to counsel, the Supreme Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). Until 1984, however, when it decided Strickland, the Supreme Court had not set out a standard for judging ineffective assistance claims premised upon allegations of incompetent representation, thus leaving the standard to be determined by the various federal and state courts.

In this Circuit, a two-part test had evolved. To obtain a reversal on an ineffective assistance claim under the Sixth Amendment, a defendant was required to demonstrate first that his lawyer’s performance fell short of “the customary skill and knowledge which normally prevails at the time and place.” Moore v. United States, 432 F.2d 730, 736 (3d Cir.1970) (in banc). The Moore court, however, did not insist on a separate showing of prejudice; rather it stated that the question whether the defendant was prejudiced by counsel’s errors was “evidentiary” on the issue whether the attorney’s performance fell below a reasonable standard of competence. Id. at 137. Soon afterward, however, this Court made clear that a separate showing of prejudice was required. See, e.g., United States ex rel. Green v. Rundle, 434 F.2d 1112, 1113 (3d Cir.1970).

Sitting in banc, this Court in United States v. Baynes, 687 F.2d 659 (3d Cir. 1982), elaborated on the content of the second prong of an ineffectiveness claim, the prejudice showing. “[A] court,” it stated, “should expect the habeas petitioner to demonstrate that there is a ‘reasonable possibility’ that had the error of which he complains not occurred, the jury might have arrived at a different conclusion.” Id. at 670. In conducting the prejudice inquiry, we declared, a reviewing court should be guided by the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967), which “permits a finding of harmless error only where it is concluded beyond a reasonable doubt that no prejudice resulted from the identified constitutional violation.” Baynes, 687 F.2d at 670-71. Thus, “any substantial doubt must be resolved in favor of the defendant.” Id. at 670.

Two years later, the Supreme Court for the first time addressed the issue of an ineffectiveness standard when it decided Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While elaborating on existing law and modifying it somewhat, Justice O’Connor’s opinion suggests that the Court intended no dramatic change in the standard being applied in the lower federal and state courts. Noting that all the federal courts of appeals had adopted substantially the same standard for attorney performance, the Supreme Court declined to depart from such a standard, holding, “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., 104 S.Ct. at 2065. In examining counsel’s performance, Justice O’Connor added, a court must judge “the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” with a recognition that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 2066.

As to the prejudice inquiry, the Supreme Court adopted a test similar to that being applied in this Circuit, although significant, it did not incorporate the Chapman standard. Strickland laid down the following test:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been differ ent. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 2068.

Further insight into the meaning of this standard may be derived from examining the alternatives rejected. Strickland first set aside a lenient standard that would allow a defendant to prevail on a showing that the errors “had some conceivable effect on the outcome of the proceeding,” or “impaired the presentation of the defense.” At the same time, however, it declined to adopt the strict “outcome determinative” standard of United States v. DeCoster, 624 F.2d 196, 208, 211-12 (D.C.Cir.) (in banc) (plurality opinion of Leventhal, J.), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979). Under the latter test, a defendant would have to “show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland, 104 S.Ct. at 2068. Although the “outcome determinative” standard “reflects the profound importance of finality” in criminal proceedings, “the result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id.

While setting out particular standards for judging performance and prejudice, Strickland also cautioned that the tests were not designed as “mechanical rules,” and prescribed a broader rule governing the resolution of ineffectiveness claims:

Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.

Id. at 2069.

Strickland, then, alters somewhat the ineffectiveness test applied previously in this Circuit, but it does not significantly modify the method of inquiry required of reviewing courts. Under the Supreme Court’s test, the prejudice standard appears somewhat more onerous for defendants, since the Court does not use this Circuit’s rule that a court determining that no prejudice resulted from counsel’s errors must make this finding beyond a reasonable doubt. Moreover, Strickland stresses the “strong presumption of reliability” to be afforded the results of the adversarial process.¹ At the same time, however, the “reasonable probability” test of Strickland appears quite similar to the “reasonable possibility” test of Baynes. And the method, of inquiry prescribed in Strickland is not inconsistent with the requirement of Baynes that a court undertake “a careful inquiry into the particular circumstances surrounding each case.” 687 F.2d at 665. Nor does Strickland change the fact that “[a] determination whether any given actions or omission by counsel amounted to ineffective assistance cannot be divorced from consideration of the peculiar facts and circumstances that influenced counsel’s judgment. In this fact-laden atmosphere, categorized rules are not appropriate.” Baynes, 687 F.2d at 665, quoting United States v. DeCoster, 624 F.2d at 203.

B.

The foregoing discussion would appear to demonstrate that the district court in this case misapplied Strickland. More important, the court erred by not undertaking a careful examination of the record in an attempt to determine whether the mistakes it found counsel had committed had prejudiced McNeil within the meaning of Strickland. The district court characterized the defendant’s burden under the prejudice prong of Strickland as the “virtually impossible” task of “establishing that, if properly presented, his defenses might well have persuaded the jury.” App. at 756. The district court noted that on the basis of statistics, few defendants who go to trial are acquitted. Moreover, it, asserted that while Strickland appears to envision a close evaluation of the record to determine the likelihood of a different outcome absent the errors by counsel, it “[found] it impossible to express any confident conclusion on that subject.”

However, although it imposes a substantial burden for showing prejudice, Strickland does not establish a “virtually impossible” burden. Indeed, it relaxes the standard previously employed by some courts, such as the District of Columbia Court of Appeals. Strickland requires a searching inquiry into whether an attorney’s alleged errors have prejudiced his client. Such a retrospective inquiry into the facts and circumstances of a criminal trial may not be easy, yet it is the same type of investigation courts frequently conduct when they consider the materiality of “exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U.S. at 97, 104, 112-13 [96 S.Ct. at 2392, 2397, 2401-02, 49 L.Ed.2d 342 (1976)] and [when they apply] the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. United States v. Valenzuela-Bernal, 458 U.S. [858] at 872-74 [102 S.Ct. 3440 at 3449-50, 73 L.Ed.2d 1193 (1982)].” Strickland, 104 S.Ct. at 2068. Thus, “[t]he prejudice standard [of Strickland ] does not erect an insurmountable obstacle to meritorious claims, but rather requires courts carefully to examine trial records in light of both the nature and seriousness of counsel’s errors and their effect in the particular circumstances of the case.” Id. at 2073 (Brennan, J., concurring in part). If defendants’ Sixth Amendment right to the effective assistance of counsel is to have any meaning, courts must apply these standards conscientiously and carefully.

III.

Turning to the facts of this case, we must now apply Strickland and determine whether the alleged errors of counsel at McNeil’s trial rose to the level of ineffective assistance of counsel sufficient to abridge the Sixth Amendment. Strickland encourages courts to resolve cases wherever possible on grounds of prejudice, so that ineffective assistance claims do not become unduly burdensome to defense counsel. Id. at 2069-70. Accordingly, assuming that the alleged errors of trial counsel do constitute deficient performance, we must determine whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 2068.²

First, absent the alleged errors of counsel cited by the district court, McNeil’s prior conviction 11 years earlier for aggravated battery, brought out by his attorney on direct examination, would not have been placed before the jury, although his prior conviction for larceny of an automobile would have been. Second, the jury would have been informed of the prior conviction of the victim for aggravated assault. At trial, defense counsel failed to bring out this fact. The prior conviction of Walker arguably could have undermined the credibility of the witness who testified as to the victim’s peaceful nature. And of greater import, the jurors would have had this item of testimony before them as evidence of Walker’s propensity for violence when they deliberated on whether McNeil shot him out of fear, rather than by premeditation, as required for first-degree murder. Evidence of Walker’s aggressive nature would have been relevant either to a self-defense verdict for McNeil, which excuses a shooting perpetrated in reasonable fear of one’s own life, or a voluntary manslaughter verdict, which applies to shootings in “unreasonable fear.”

Finally, absent the failure by McNeil’s counsel to object to the incomplete supplemental instruction, the jurors would have been reminded of the theory of voluntary manslaughter applicable to a defendant who has killed someone because of an unreasonable belief that his life is in jeopardy. When the jurors returned after two hours of deliberation to ask for the definition of voluntary manslaughter, a more alert counsel would have recommended that this element of the defense be included in the definition; the judge undoubtedly would have included it, since it was set forth in his initial charge.

Had none of the above errors or omissions occurred, McNeil maintains, the chances of his being convicted of first-degree murder would have been greatly reduced. Instead of retiring with evidence that McNeil had a record of violent crime and Walker did not, the jury would have been in the opposite position, with evidence of Walker’s violent criminal tendencies and much less evidence of McNeil’s — at worst, evidence that McNeil had once stolen a car. Moreover, the argument continues, the jury would have had its attention drawn more sharply to the availability of a verdict consistent with this evidence: a voluntary manslaughter conviction, on the theory that McNeil shot Walker out of unreasonable fear for his own life. All these factors, it is argued, create a reasonable probability that the outcome would have been different without the errors, for “the errors committed here had a pervasive effect on the inference to be drawn from the evidence, altering the entire evidentiary picture.” Strickland, 104 S.Ct. at 2069.

On balance, however, we do not think these errors had a sufficiently great impact. None of them altered the crucial factual finding that McNeil shot a man who was backing away from him with his hands up and apologizing. It is true that Walker grabbed McNeil from behind when he first approached him at the bar, that the two exchanged words, and that McNeil testified Walker threatened him during the exchange. No other witness heard this conversation, however, while witnesses heard McNeil’s angry warning to Walker to keep his hands off.³ Moreover, after this, there is no evidence that Walker made any menacing gestures, and overwhelming evidence that he sought to calm McNeil as he rose to get his coat by putting his hands on his chest or shoulders and- saying that he was sorry or that it was “all right.” App. at 205-06; 302-03; 336; 380. It is undisputed that Walker was apologizing to McNeil in the moments immediately prior to the shooting. Evidence of the victim’s prior violence and reduced evidence of the defendant’s criminal past, then, do not undercut the impression that McNeil purposefully shot Walker without any fear of the victim at the time he shot.

Indeed, a fair reading of McNeil’s own trial testimony would largely eliminate fear as his dominant emotion at the time of the shooting. In describing how he felt as he was putting on his coat, McNeil testified, “I was getting ready to go. He [Walker] just kept badgering at me ... He just kept pulling and just picking at me like I was some kind of little child or kid or something.” App. at 560. McNeil did not say he suspected an attack. When he turned his back to Walker and felt his hand on his back, McNeil testified, “I don’t know what he was going to do.” When specifically asked whether he was fearful while Walker was backing away with his hands up saying, “I’m sorry,” McNeil replied only, “I remember seeing the mass in front of me. That’s the last thing I remember seeing of Johnny.” App. at 585-585.6

Further, McNeil’s immediate response to Walker’s approach at the bar is far more consonant with an attitude of aggressive self-confidence than fear, as also suggested by Walker’s quick apology, and the effort by the barmaid to stop McNeil. Thus, the lack of a supplemental instruction on “unreasonable fear” would not be a crucial omission, for there was virtually no evidence to support such a verdict, while there was overwhelming evidence of a purposeful killing. “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming support.” Strickland, 104 S.Ct. at 2069. This case falls into the latter category.

IV.

We do not mean to express approbation of the representation McNeil received from his attorney in this case. To the contrary, it is as clear to us as to our dissenting colleague that a better prepared, more adept lawyer would have represented McNeil far more vigorously, and would not have made some of the dubious decisions detailed earlier. Upon reviewing the cumulative effect of these actions and omissions, however, we do not think there is a “reasonable probability” that without them, the result of the trial would have been different. It is possible that the outcome would have been different, of course, but the possibility is not “sufficient to undermine confidence in the outcome.” Id. at 2068.

More broadly, we believe the record shows that, even if his defense was flawed, McNeil received a fair trial. At trial, McNeil put on defense witnesses who presented evidence favorable to his case. He testified at length, providing the jury with his account of the events in question. Indeed, his ineffective assistance argument is premised upon the proposition that the jury had before it sufficient evidence to find him guilty of a charge less than first degree. The jury, moreover, was instructed on lesser degrees of guilt.

Under these circumstances, we do not believe there was “a breakdown in the adversarial process,” nor do we have any significant doubt as to the reliability of the outcome. As the Supreme Court has noted in similar contexts, a “ ‘defendant is entitled to a fair trial but not a perfect one.’ ” Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968), quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Because McNeil received that here, the judgment of the district court will be affirmed.

Footnotes

1

. The dissent interprets Strickland to state that its test does not impose upon a habeas petitioner a heavier burden of proving prejudice than previously applied in this Circuit. Post at 456. A fair reading of Strickland, however, does not support this view. The dissent relies on two sentences in Justice O'Connor’s opinion: “With regard to the prejudice inquiry, only the strict outcome-determinative test, among the standards articulated in the lower courts, imposes a heavier burden on defendants than the tests laid down today. The difference, however, should alter the merit of an ineffectiveness claim only in the rarest case.” Strickland, 104 S.Ct. at 2069.

Although the Court’s wording is not without ambiguity, it is clear that the first sentence means that of the standards applied in the lower courts, only the D.C. Circuit’s “outcome determinative” test imposes a greater burden of showing prejudice than the Strickland standard; it follows logically that the other standards impose either as great a burden or a lesser burden than Strickland. Thus, this sentence does not, as the dissent insists, "explicitly” state that Strickland imposes the same standard as this Circuit, post at 456, and other language in the opinion prescribing a "presumption of reliability" makes clear that the Strickland standard is somewhat more onerous for defendants than our Baynes standard.

The second sentence is less clear. The principal question is what "difference" the Supreme Court is referring to. Because the previous sentence focused primarily on the D.C. Circuit's "outcome determinative” standard, it seems most likely that the “difference” refers to the disparity between the D.C. Circuit test and the Strickland formulation. Thus, the Supreme Court may be suggesting that its result will likely accomplish the same effect in most cases as the "outcome determinative" test. Alternatively, the Supreme Court may intend to suggest more broadly that the difference in the exact wording of prejudice and performance tests is less significant than an overall consideration of the "fundamental fair ness" of the proceeding under review. Either interpretation is consistent with our application of Strickland in this case.

2

. In making this determination, we review the record on a plenary basis, for "the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact” to which the requirement of deference contained in 28 U.S.C. § 2254(d) (1982), does not apply. Strickland, 104 S.Ct. at 2070.

3

. McNeil also testified that Walker had taken a hat off his head and shoved it into his face. None of the other witnesses, however, supported this account. App. at 579.