Opinion
No. C00-2098-MWB
February 12, 2001
REPORT RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (Docket Number 8), ORDER ON MISCELLANEOUS MOTIONS (Docket Numbers 14, 16, and 18
I. INTRODUCTION
This matter is before the court on the Motion to Dismiss (Doc. No. 8) and supporting brief (Doc. No. 9) filed by the respondent Warden John Mathes (the "State") on January 8, 2001. The motion seeks dismissal of the petition for writ of habeas corpus filed by the petitioner Carlos Fontez Calhoun ("Calhoun") on December 6, 2000. Calhoun resisted the motion on January 25, 2001 (Doc. No. 17), and again on February 6, 2001 (Doc. Nos. 19 and 20), and February 7, 2001 (Doc. Nos 21 and 22).
The Petitioner currently is in the custody of the Newton Correctional Facility. John Mathes was the warden until December 29, 2000. The acting warden is now Kris Weitzell.
On January 22, 2001, Calhoun sent the court a letter, filed as docket number 14, requesting the removal of his court-appointed attorney "because he really does not understand the argument." On January 25, 2001, Calhoun filed a "motion for order waiving court appointed counsel" in which he "waives counsel because of his lack of legal knowledge." (Doc. No. 16) On January 31, 2001, Calhoun's court-appointed attorney, Rockne O. Cole, filed a motion asking for clarification of his status as Calhoun's attorney. (Doc. No. 18) These motions (Doc. Nos 14, 16 18) are all granted. Mr. Cole is relieved of any further responsibility for the representation of Calhoun, and the court will consider the motion to dismiss in light of Calhoun's five pro se resistances.
In its motion to dismiss, the State argues Calhoun's petition should be dismissed because his claim is not premised upon federal law. Calhoun responds by arguing that his claim is, in fact, premised upon federal law because it arose as a result of ineffective representation by counsel. The court deems the motion to dismiss fully submitted.
II. ANALYSIS A. Background
On April 13, 1999, Calhoun was convicted on four counts of forgery. His convictions were affirmed by the Iowa Supreme Court on direct appeal. State v. Calhoun, 618 N.W.2d 337 (Iowa 2000). In its ruling affirming Calhoun's convictions, the court set forth the following factual history leading to Calhoun's conviction and sentence, which facts are adopted as true for purposes of Calhoun's petition:
"In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1) (1996).
The evidence reveals that Calhoun opened a checking account at Norwest Bank in the name of a fictitious business, Midwest Security Service. In opening the account, he used the name of William Scott. In another transaction he opened a joint checking account at John Deere Credit Union in the names of Andrea Anderson and William Lee Johnson. The purpose of opening the credit union account was to facilitate the cashing of checks at offices of the credit union. Calhoun drew checks on the Norwest account denominated as payroll checks of Midwest Security Service. These checks were made payable to William Lee Johnson. He then endorsed the checks as William Lee Johnson and cashed them at four different John Deere Credit Union outlets. Because there were insufficient funds in the account, all of these checks were dishonored by Norwest Bank.Id., 618 N.W.2d at 338.
The statute under which Calhoun was convicted provided, in relevant part:
A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:
* * *
b. Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, . . .
* * *
IOWA CODE § 715A.2(1)(b) (1997) ( emphasis added). In his direct appeal, Calhoun did not dispute the facts, but relied on a technical reading of the statute in an attempt to avoid its reach. He argued to the Iowa Supreme Court that he did not commit a forgery under Iowa law because when he issued the four checks, he did not transfer a writing that "purport[ed] to be the act of another who [had] not authorize[d] that act." Id. He pointed out that although he used a fictitious name when he opened the Norwest Bank account and wrote checks on the account, he was "authorized" to write checks on the account. Therefore, he argued, he did not commit forgery by writing checks on the account. He further argued the checks were genuine because they would have been honored had there been sufficient funds in the Norwest Bank account.
The Iowa Supreme Court shifted the focus from the writing of the checks to the endorsing of the checks, finding, "In endorsing the check, Calhoun was assuming a new legal obligation to the credit union separate and apart from the obligation of the drawer of the check. With respect to the obligation of the endorser, the instrument was not genuine." Id., 618 N.W.2d at 340. Based on this reasoning, the Supreme Court affirmed Calhoun's forgery convictions. Calhoun did not seek further review of the Supreme Court's holding, and did not initiate state post-conviction proceedings.
The Supreme Court did not reach the question of whether the drawing of the checks also was forgery. State v. Calhoun, 618 N.W.2d 337, 340 (Iowa 2000): "Because we are convinced that Calhoun was guilty of forgery in endorsing the four checks at issue in the present case, we need not consider whether his drawing of those instruments also constituted forgery."
In his habeas petition in this court, Calhoun argues he did not commit forgery because he endorsed the checks with the knowledge of the drawer ( i.e., himself). ( See Doc. No. 3, p. 5) He further argues he was denied effective assistance of counsel because his attorney "was ineffective for failing to appropriately challenge the interpretation and application of the statute, and for failing to make the correct challenge in his Motion for directed Verdict of Acquittal." Id.
B. Legal Analysis
The State contends Calhoun's petition does not raise a federal question, and therefore federal habeas relief is not appropriate. ( See Doc. No. 9, pp. 3-5) Calhoun responds that his claim of ineffective assistance of counsel presents a federal question under the Sixth Amendment of the Constitution appropriate for review in this court. See Doc. No. 17, p. 6-7; Doc. No. 19, pp. 1-2; Doc. No. 20, p. 3)
In Pruett v. Norris, 153 F.3d 579 (8th Cir. 1998), the Eighth Circuit Court of Appeals held:
When considering a state prisoner's habeas petition to determine whether circumstances mandate postconviction relief, a federal court's review is limited to determining whether the conviction or sentence was obtained in violation of the Constitution, laws, or treaties of the United States. See Crump v. Caspari, 116 F.3d 326, 327 (8th Cir. 1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)); 28 U.S.C. § 2254(a).Id., 153 F.3d at 584 In Calhoun, the Iowa Supreme Court, in determining a question of state law, decided to construe the Iowa forgery statute to proscribe the conduct of the petitioner in this case. This court will not second-guess that decision.
[T]he Supreme Court has recognized that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Instead, our review "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68, 112 S.Ct. 475; see also 28 U.S.C. § 2241. Determinations of state law made by the [state courts] are binding. See Crump v. Caspari, 116 F.3d 326, 327 (8th Cir. 1997).Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir. 1998).
Calhoun attempts to avoid this result by recasting his argument in the guise of a claim of ineffective assistance of counsel, arguing his trial counsel did not correctly challenge the interpretation adopted by the Iowa courts. However, Calhoun never raised the ineffective assistance of counsel claim in the Iowa courts. As a result, that claim is unexhausted. Nevertheless, because the court finds the claim to be totally without merit, the court will consider his claim here for purposes of judicial economy.
An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2) (1996).
The standard for proving ineffective assistance of counsel was established by the Supreme Court in Strickland v. Washington:
First , the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second , the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (emphasis added). The reviewing court must determine "whether counsel's assistance was reasonable considering all the circumstances." Id., 466 U.S. at 688, 104 S.Ct. at 2065.
The defendant's burden is considerable, because "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id., 466 U.S. at 689, 104 S.Ct. at 2065 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). "Reasonable trial strategy does not constitute ineffective assistance of counsel simply because it is not successful." James v. Iowa, 100 F.3d 586, 590 (8th Cir. 1996).
Furthermore, even if the defendant shows counsel's performance was deficient, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. "Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Id., 466 U.S. at 693, 104 S.Ct. at 2067.
Thus, the prejudice prong of Strickland requires a petitioner, even one who can show that counsel's errors were unreasonable, to go further and show the errors "actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test." Id. See Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999) (citing Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997)). Rather, a petitioner must demonstrate "there is 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, 104 S.Ct. at 2068.
A petitioner must satisfy both prongs of Strickland in order to prevail on an ineffective assistance of counsel claim. See id., 466 U.S. at 687, 104 S.Ct. at 2064. It is not necessary to address the performance and prejudice prongs in any particular order, nor must both prongs be addressed if the district court determines the petitioner has failed to meet one prong. Id., 466 U.S. at 697, 104 S.Ct. at 2069. Indeed, the Strickland Court noted that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Tokar v. Bowersox, 198 F.3d 1039, 1046 (8th Cir. 1999) (citing Strickland).
In short, a conviction or sentence will not be set aside "solely because the outcome would have been different but for counsel's error, rather, the focus is on whether `counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.'" Mansfield v. Dormire, 202 F.3d 1018, 1022 (8th Cir. 2000) (quoting Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)).
Here, Calhoun is claiming his attorneys were ineffective for not arguing successfully his views on how the Iowa forgery statute should be interpreted. However, Calhoun has not shown, nor can he show, that his attorneys were ineffective in failing to argue an erroneous interpretation of Iowa law.
The court finds as a matter of law that Calhoun's trial and appellate counsel rendered effective assistance. Having failed to satisfy his burden under Strickland, Calhoun's petition should be denied.
Therefore, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this Report and Recommendation, that Calhoun's petition be dismissed with prejudice.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).