McNulty v. Olim

652 F.2d 1369
Court of Appeals for the Ninth Circuit·Decided August 14, 1981·No. No. 80-4316·Published·Cited by 2 cases

Opinion

SNEED, Circuit Judge:

This is an appeal from the district court’s denial of the appellant’s petition for a writ of habeas corpus. Appellant was tried and convicted of murder in the State of Hawaii. Thereafter appellant, through new counsel, moved in a timely fashion for a new trial. His motion was denied. He appealed to the Supreme Court of Hawaii and argued, inter alia, that his trial counsel provided ineffective assistance. The Supreme Court affirmed both the conviction and the denial of the motion for a new trial.

Appellant then filed his petition for a writ of habeas corpus on the ground that he has been denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel. Although the Supreme Court of Hawaii did not explicitly cast its discussion on the effectiveness of the appellant’s trial counsel in constitutional terms, we are convinced that the issue the appellant seeks to have reviewed by means of his petition for a writ of habeas corpus was presented to the Supreme Court of Hawaii fully, fairly, and precisely. Therefore, appellant has exhausted his state remedies without regard to whether further collateral relief might be available to him under Hawaii law. See United States ex rel. Bennett v. Rundle, 419 F.2d 599, 601 (3d Cir. 1970).

We affirm the district court’s denial of appellant’s petition.

I.

SUMMARY OF APPELLANT’S CONTENTIONS

Appellant primarily relies upon two alleged deficiencies in the performance of his trial counsel. The first is that counsel made and then erroneously withdrew an instruction that properly placed on the prosecution the burden of proving beyond a reasonable doubt that appellant did not kill his victim in self-defense. Self-defense was the appellant’s sole defense asserted at the trial. The second is that trial counsel did not attempt to introduce testimony by the victim’s former attorney concerning the victim’s violent nature and his allegedly threatening letter to his attorney.

Appellant also argues that his trial counsel did not object to questions put to the appellant concerning his own violent tendencies. The district court in its review of the record also questioned the trial counsel’s qualification of a prosecution witness as a firearms expert for the purpose of putting a question the answer to which apparently was unknown to counsel.

II.

POSITIONS TAKEN BY THE DISTRICT COURT

The district court, after setting forth a recital of the testimony at appellant’s trial, which is set forth in the appendix to this opinion, took the position that trial counsel’s major error was his withdrawal of his request for an instruction regarding the prosecution’s burden of proof with respect to self-defense. This error, the district court concluded, was not one a reasonably competent attorney would have made.

Consistent with the requirement imposed by Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), the district court next considered whether this error prejudiced the appellant. This consideration, in effect, embodies an effort to certify a question to this court. This effort is revealed by two positions the district court took with respect to the issue of prejudice.

Initially the district court indicated that no prejudice resulted from the errors of [1371]*1371trial counsel if the burden of the appellant was to show that “with a reasonably competent defense attorney (and reasonably competent does not mean perfect) it is more likely than not that the jury would have reached a different result, i. e., acquittal, or conviction on a lesser charge.” It reached this conclusion after properly evaluating the collective, not seriatim, impact of the trial counsel’s errors. See United States v. Altamirano, 633 F.2d 147, 153 (9th Cir. 1980). The district court did not stop at this point, however. It went further and stated that it would be required to find that prejudice existed if the proper standard was that the cumulative impact of the trial counsel’s errors must have been harmless beyond a reasonable doubt. In effect, the district court requests that we choose one or the other standard.

III.

ANALYSIS

After thoroughly reviewing the record, we decline to choose between the alternatives presented to us by the district court. We are convinced that under either standard no prejudice within the meaning of Cooper v. Fitzharris, supra, exists. Moreover, we are by no means convinced that the district court’s choices exhaust the possibilities. As we said in Cooper v. Fitzharris, supra at 1332, when the petitioner is not denied counsel but rather has counsel, omissions or commissions of counsel have an impact that “appears on the face of the record” and their effect “can be evaluated from that record with reasonable certainty.” This strongly suggests that the proper test might well be whether the absence of prejudice is established with reasonable certainty. Should that be true we would have no difficulty in holding on the record before us that the absence of prejudice has been established with reasonable certainty.

AFFIRMED.

APPENDIX

The district court’s recital is as follows:

“The homicide apparently was the product of a love triangle. Petitioner lived with a woman, Francis Mary Hanson, at the time of the killing, and had at that time been living with her, in her apartment, for about two and one-half years. About a month before the killing Petitioner and Ms. Hanson met the decedent, Dion Yancey Cagle, for the first time. Petitioner and a friend were engaged in a ‘friendly’ sparring match and Cagle came by, struck up a conversation, and later went back to Ms. Hanson’s apartment with her and Petitioner. During the next month Cagle visited the apartment several times, sometimes at the invitation of Petitioner and sometimes without an invitation. Petitioner testified at trial that he only invited Cagle once. When Cagle visited he usually played poker and drank with Petitioner and Ms. Hanson. Ms. Hanson testified that things were friendly until Petitioner and Cagle had ‘a few too many’ at which time they usually got into an argument. Petitioner would ask Cagle to leave, and when Cagle would refuse, Petitioner would order him to leave. Ms. Hanson testified that Cagle always left at that point in the argument, and there were never any physical fights between Petitioner and Cagle. (Transcript of Trial of Donald Angus McNulty in the Circuit Court of the First Circuit, State of Hawaii [hereinafter Tr.] at 142-43).

“Ms. Hanson testified that Cagle had shown a great deal of interest in her, and had on several occasions told Petitioner that he, Cagle, was going to take Ms. Hanson away. Several weeks before the killing, Cagle and Petitioner had apparently gotten into a loud argument over Ms. Hanson. Cagle had again stated that he was going to take Ms. Hanson away from Petitioner, and had emphasized his point by kissing Ms. Hanson in Petitioner’s presence. (Tr. at 143). The argument was so loud that the police were called. Ms.

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