Opinion
I.D. No. 9604017809
Submitted: May 4, 2001
Decided: August 31, 2001 Revised: September 5, 2001
Upon Defendant's Motion for Postconviction Relief — DENIED
OPINION and ORDER
On January 28, 1997, a jury convicted Craig Zebroski for two counts of first degree murder and related crimes. After a separate penalty hearing, by a 9-3 vote, the original jury recommended the death penalty. Taking the jury's recommendation into consideration and after reviewing the record, the court found that the aggravating factors outweighed the mitigating factors and it imposed the death sentence.
State v. Zebroski, Del. Super., Cr. A. Nos. IN-96-06-1052, IN96-06-1053, IN96-06-1054, IN96-06-1055, IN-96-06-1056, IN-96-05-0699 IN96-05-0701, Silverman, J. (Aug. 1, 1997), aff'd, Zebroski v. State, Del. Supr., 715 A.2d 75 (1998).
On appeal, the Supreme Court of Delaware affirmed Zebroski's convictions and his sentence. Almost immediately after the Supreme Court issued its decision, Zebroski filed a pro se motion for postconviction relief. In response, this court appointed new counsel for Zebroski. His new counsel then filed an amended motion for postconviction relief alleging ineffectiveness of Zebroski's trial and appellate counsel, and including requests to expand the record and for a hearing. The court granted Zebroski leave to expand the record and it held a full evidentiary hearing, followed by formal briefing. On May 4, 2001, the post-hearing briefing was completed. Having considered Zebroski's motion and amended motion, the State's response, Zebroski's reply, the briefing and the record, the court finds that Zebroski is not entitled to postconviction relief.
Zebroski v. State, Del. Supr., 715 A.2d 75 (1998).
Super. Ct. Crim. R. 61(b).
Super. Ct. Crim. R. 61(e).
Super. Ct. Crim. R. 61(h).
I.
The Supreme Court thoroughly recites the case's facts in its decision affirming Zebroski's conviction. In summary, on April 26, 1996, Craig Zebroski shot and killed Joseph Hammond during a botched gas station robbery. On May 1, 1996, Zebroski was charged with two counts of first degree murder, one count of attempted robbery first degree, three counts of possession of a firearm during the commission of a felony, and one count of conspiracy second degree. Zebroski put the State to its proof, but the trial focused on whether Zebroski acted intentionally when he shot Hammond between the eyes. The penalty hearing centered on Zebroski's behavior after the shooting and his poor record, compared against his youth, his substance abuse and the horrible circumstances surrounding Zebroski's childhood.
See Zebroski, 715 A.2d at 77.
II.
In his amended motion for postconviction relief, Zebroski presented many allegations. In his opening brief, however, Zebroski has pared down his claims. The court considers claims not appearing in the briefs to have been abandoned after the evidentiary hearing. For example, Zebroski originally claimed that counsel retained before his arrest improperly advised Zebroski to speak with the police. As the State correctly asserted in its answer, no constitutional right to effective assistance attached prior to his arrest. A person's right to effective assistance of counsel does not attach until judicial proceedings have begun. Presumably because he lacked persuasive authority, Zebroski dropped his claim about counsel before arrest.
See Shirley v. State, Del. Supr., 570 A.2d 1159 (1990).
Id. at 1166.
At this point, Zebroski alleges ineffective assistance of counsel for the following reasons:
• In part because trial counsel worked without cocounsel, he failed to "competently" investigate and present a mitigation case;
• Open-ended voir dire was inadequate and confusing to prospective jurors;
• "Delaware's statutory scheme for the imposition of the death penalty following a conviction of first degree murder violates the due process clause of the United States Constitution"; and
• Appellate counsel was ineffective by not challenging the decision not to allow Zebroski's trial counsel to argue "residual doubt" at the penalty hearing.
III.
It is axiomatic that to prevail on a motion for ineffective assistance of counsel, Defendant must meet the two-pronged Strickland test. The court will address Strickland's requirements more specifically as to each claim. Generally, however, a defendant must show that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Further, "review of counsel's representation is subject to a strong presumption that counsel's conduct was professionally reasonable." An ineffective assistance claim is not a question of hindsight or speculation about what trial counsel could have done better. Rather, the question is whether trial counsel's actions were adequate. Finally, concerning Strickland's second prong, prejudice, to prevail on a Rule 61 motion, a defendant must make specific allegations demonstrating actual prejudice and substantiate them.IV.
A. Trial Counsel's Failure to Investigate and Present a Mitigation CaseZebroski contends that he was prejudiced by trial counsel's failure to investigate properly and present a mitigation case in the penalty phase. First, as mentioned above, Zebroski claims that trial counsel improperly "handl[ed] this capital murder defense on his own." He argues that defense counsel's solo effort caused "delay in the information gathering process" and resulted in "appropriate [contacts] never interviewed or considered as witnesses at trial."
Second, Zebroski claims that because the public defender's office supposedly "did not begin to investigate Zebroski's background until trial had already begun," trial counsel failed in his duty to investigate. He argues that he was prejudiced by this delay, since "probably the most powerful mitigation evidence," Zebroski's home life, was not explored and presented adequately.
Finally, Zebroski claims that defense counsel failed to present and explain Zebroski's phencyclidine abuse to the jury adequately. Because PCP affects a person's behavior and "alters the fine motor control of an individual," Zebroski maintains that this factor is especially important for deciding intent. He contends that the PCP evidence might "have a direct bearing on the level of culpability that the jury might attribute to [him] for this crime."
1. Solo Representation
While modern Delaware practice usually involves more than one trial attorney for a capital defendant, there is no per se requirement that every capital murder defendant must have a team of lawyers. As presented below, Zebroski's trial counsel was very experienced in representing capital murder defendants, with and without co-counsel. In a relatively straightforward case like this one, which did not involve sophisticated scientific analysis or many witnesses, a single defense lawyer stands in contrast to the State's host. The jury heard Zebroski's position in one, consistent voice. As to Strickland's first prong, the court will not find that Zebroski's trial counsel was ineffective simply because he represented Zebroski by himself. And as discussed next, Zebroski has not proved that any specific act or omission by his trial counsel deprived Zebroski of objectively reasonable representation, much less that Zebroski suffered prejudice.
Zebroski's trial attorney is among the most seasoned criminal litigators in Delaware. Since he started practicing law in 1972, trial counsel has represented almost 25 capital murder defendants. After 1991, when the death penalty statute was changed to its current form, trial counsel, by his count, "probably handled close to an average of two a year." He estimates that he has represented ten capital defendants with co-counsel, and he has represented 15 capital murder defendants by himself.
Zebroski's trial attorney did not volunteer for this case. He speculated that he was assigned to represent Zebroski by himself because the public defender's office "was probably stretched fairly thin." So, trial counsel assumes that he was assigned to represent Zebroski alone because his superiors probably thought he could handle the case by himself. In any event, Zebroski's trial counsel does not support the claim that he lacked resources and that he was overwhelmed by having to represent Zebroski at trial and penalty hearing, without co-counsel.
2. Failure to Investigate and Prepare
The court agrees with the State that Zebroski's claim that defense counsel failed to investigate, also is unsupported. The court completely rejects Zebroski's claim that his trial counsel did not begin to investigate Zebroski's background "until trial had already begun." In fact, trial counsel spoke with Zebroski's mother even before Zebroski was charged. Before trial, Zebroski's trial counsel ordered and obtained a detailed evaluation by a reputable psychologist. From the outset, the public defender's office provided logistical support for trial counsel, including social workers, psychologists and other investigative case workers. The record reveals that trial counsel still was assembling the mitigation case even after the trial was underway. But that is a far cry from any suggestion that trial counsel was not working on mitigation until after the trial had started. As the State notes, defense counsel brought in and questioned friend, family member and medical expert witnesses. They testified clearly and convincingly about Zebroski's substance abuse history and his extremely abusive upbringing.
Zebroski's claim that his mother was "never properly dealt with to maximize her effectiveness as a mitigation witness for her son" is legally and factually incorrect. As a matter of law, trial counsel was not required to "maximize" the mother's effectiveness. Trial counsel legally was bound to use Zebroski's witnesses in an objectively reasonable way. In fact, Zebroski is asking the court to engage in hindsight and speculation forbidden by Strickland. Without belaboring the unfortunate details again, Zebroski's mother has a challenging clinical history. Zebroski's current counsel do not elaborate on how trial counsel, as a reasonable practitioner, could have employed this troubled person more effectively. Much less do they explain how trial counsel's supposed failure prejudiced Zebroski.
As the State points out and as alluded to above, trial counsel called Mandell Much, Ph.D., at trial. Dr. Much's testified as to "Zebroski's personal history" as well as "the impact of Zebroski's substance abuse, including the effects of . . . PCP." And as presented below, trial counsel called a close family friend who testified about Zebroski's violent home life and his struggles.
3. Substance Abuse
As for the post-trial emphasis on the implications of his drug use, Zebroski's argument about trial counsel's failure to pursue PCP's impact on Zebroski's fine motor control is self-contradictory. If Zebroski is suggesting that PCP affected his fine motor control and that helps explain why the handgun went off, it leaves open the question as to how the bullet hit the victim almost exactly between his eyes.
Also, Zebroski's current counsel downplays the pivotal fact that Zebroski's drug use was voluntary. While it helps explain why he intentionally shot a defenseless gas station attendant during an attempted robbery in the middle of the night, Zebroski's voluntary drug use does not provide a legal excuse. At best, it is marginally helpful. Like the court explained in its sentencing decision, Zebroski' s drug use was a double-edged sword as a sentencing consideration.
11 Del. C. § 432. See Wyant v. State, Del. Supr. 519 A.2d 649, 653-660 (1986) (Defendant not permitted to call expert concerning effects of defendant's voluntary intoxication on his "mental state, volition or ability to form the intent necessary. . . .").
* * * * *
The court recalls that the evidence presented by trial counsel about Zebroski's childhood was sad and potentially compelling. The testimony of Maureen Porter, a responsible family friend, was especially poignant. After learning how Zebroski was abused physically and emotionally, the jury and the court had to sympathize with Zebroski and appreciate how, through no fault of his own, he had almost no chance to develop into a non-violent, clear thinking, productive person. Zebroski's trial counsel very effectively made Zebroski's own tragic circumstances clear. But if trial counsel had pulled out the stops even more, the court would have taken that into account during its final weighing process. Had the penalty hearing been even more emotional or sentimental than it was, that would have undermined the court's confidence in a more favorable recommendation.
As to Strickland's prejudice test, Zebroski argues conclusions. The court agrees with the State that Zebroski "`has failed to identify the witnesses and indicate what their potential testimony might be' and this Court cannot speculate concerning that evidence." It is difficult even to imagine how any additional evidence would not have been cumulative.
See Outten v. State, Del. Supr., 720 A.2d 547, 553 (1998).
Zebroski misses the point that the jury saw a graphic picture of Zebroski's destructive childhood. Meanwhile, the State's evidence about aggravating circumstances was solid and chilling. Zebroski's record was shocking and his behavior after the murder was cold-blooded. Even in hindsight, Zebroski offers no theory as to how trial counsel could have persuasively minimized, much less rebutted, the picture of Zebroski posing with the murder weapon, threatening his accuser from prison, voicing hope for an escape, showing no interest in rehabilitative activities, and so on. All Zebroski really suggests is that his trial counsel should have further emphasized what he already established. Zebroski has not proved his conclusion that trial counsel's actions fell below an objectively reasonable standard, and that his case's outcome would have been different, but for anything his trial counsel failed to do or that he did but should not have done.
B. Voir dire During Jury Selection
Delaware does not require a unanimous verdict for the death sentence. Instead, the trial judge makes the ultimate decision whether to impose the death penalty. Zebroski claims that because Delaware is an "advisory state," jury selection is "the most critical phase of the entire proceeding." He specifically contends:
11 Del. C. § 4209(d) (1995). Compare 11 Del. C. § 4209(d) (1987).
Because one or two swing votes recommending a life sentence may persuade a trial judge to spare a capital defendant from a death sentence, jury selection is crucial in determining one's fate.
Zebroski argues that "inadequate voir dire constitutes a `colorable constitutional claim."' He alleges that "lack of juror comprehension and the inadequate closed-end questions which do not reveal the accurate information sufficient to identify the life and death qualified jurors" render his trial's jury selection process "wholly inadequate."
To support his claim, Zebroski cites jury expert Valerie P. Hans, Ph.D.'s, evidentiary hearing testimony. She testified that she reviewed the voir dire and reached several conclusions:
• some of the most important concepts for the jurors to understand were never fully explained to them;
• the context material provided by the court was at best confusing and at worst misleading; and
• the death and life qualifying questions used by the court, due to their wording, rarely reveal the potential jurors' "true feelings," because the questions are "closed ended" in that they suggest a socially desirable answer, that is, the answer that would make the juror a fair person.
Challenges to jury selection, including the adequacy of voir dire, should be made during direct appeal. Accordingly, Superior Court Criminal Rule 61's procedural bars come into effect. By characterizing his claim as constitutional, Zebroski apparently asks to be excused for not raising voir dire on appeal. The court does not view its alleged failure to pose more open-ended questions during jury selection as amounting to "a colorable claim that there was a miscarriage of justice because of a constitutional violation that underminded the fundamental legality, reliability, integrity fairness of the proceedings leading to the . . . conviction." Therefore, Zebroski's challenge to jury selection comes too late for Rule 61's purposes. And besides, the court is satisfied that the voir dire was adequate and that Zebroski suffered no harm from it.
Superior Court Criminal Rule 61(i)(3).
Superior Court Criminal Rule 61(i)(5).
Id.
The Delaware Supreme Court has spoken on jury voir dire questioning. Manley v. State, rejects similar complaints about so-called open-ended voir dire questions. Manley specifically holds that "open ended questioning is not required in order for the voir dire to be constitutionally adequate." This court need not speculate about voir dire. The jury voir dire comports with Manley, and does not run afoul of the Constitution or Delaware law.
Del. Supr., 709 A.2d 643, cert. denied, Manley v. Delaware, 525 U.S. 893 (1998).
Id. at 655.
The court agrees with the State's position that this court may independently reject Zebroski's argument on the basis of State v. Wright. The State correctly asserts that Wright "rejected Hans' position that open ended voir dire was necessary to secure a fair and impartial jury." For Zebroski, as the State points out, Hans presents no new evidence from that already presented and rejected in Wright.
Del. Super., Cr. A. Nos. IN91-04-1947R2 thru 1953R2, Del Pesco, J. (Sept. 28, 1998) Mem. Op. at *11-14, aff'd, State v. Wright, Del. Supr., 746 A.2d 277 (2000).
Here, Hans fastened on voir dire for 16 prospective jurors. Only one of those prospective jurors actually sat on the jury. Moreover, after general voir dire, the court conducted face-to-face voir dire with each potential juror, including the actual juror who drew Hans' particular attention. As the State correctly points out, the court "ultimately cleared up situations where a juror exhibited any sign of confusion (or nervousness)." Careful review of the entire jury selection shows considerable back-and-forth between the court and counsel and between the court and the prospective jurors. Overall, the process was unhurried and almost collaborative. Time and again, prospective jurors asked questions and voiced concerns. In several instances, several jurors spoke up after they were seated. This highlights the fact that prospective jurors understood that they were involved in something complicated and important. Of course it is possible that a juror might hide his or her confusion, but Dr. Hans' view of jury selection and of potential jurors excessively discounts the experienced trial participants' perceptions and is overly cynical. While the court appreciates Dr. Hans' suggestions, they are in no way dispositive here.
Despite the voir dire's supposed limitations, it eliminated 15 of Hans' 16 suspect jurors. That fact undermines the expert's concerns and it brings into specific relief the importance of courtroom dynamics. The people who actually saw the voir dire could appreciate each potential juror's possible shortcomings and respond to them. As for the one questionable juror who actually sat on the jury, Ivy B., Juror No. 3, the record reflects thorough communication between the juror and the court.
Hans offers concern about another juror, Ann A., who was seated as Juror No. 6. Before jury selection finally ended, however, the juror pleaded to be excused for various reasons and she was.
Zebroski and Hans refer to Ivy B. as Juror No. 4. Actually, after the juror originally seated as Juror No. 2 was excused during july selection, the final panel was re-numbered.
Hans' contention regarding Juror No. 3, was that the juror replied "I don't know" to a question and asked that the question be repeated. The actual exchange went as follows:
THE COURT: If you found Craig Zebroski guilty of murder in the first degree, would you automatically vote in favor of a sentence of death irrespective of the facts or the court's instructions on the law.
JUROR: I don't know. Ask that again.
THE COURT: If you found Craig Zebroski guilty of murder in the first degree —
JUROR: Would I automatically —
THE COURT: Then go on to vote in favor of a sentence of death irrespective of the facts or the court's instructions on the law.
JUROR: No.
This exchange fails to show any fundamental misunderstanding regarding the "automatic death penalty" question. Rather, the conversation demonstrates effective communication between the court and the juror. As the exchange shows, the juror was intent on understanding the capital sentencing process and her concern cleared as the court started to elaborate for her.
According to her juror questionnaire, Juror No. 3 was a 39 year old, high school graduate. She was employed as a sales support supervisor. Her husband was employed as a planner/scheduler. Her juror questionnaire also revealed that she had previous jury experience.
There is no reason to conclude that the juror was confused about anything, nor that trial counsel had reason to challenge her. It also bears mention in passing that the court formally instructed the jury on the law during the penalty hearing and it supplied the deliberating jurors with a written copy of the instructions. Thus, it is even less likely that Juror No. 3 was confused in the slightest about the law when she was deliberating. And, again, the court sees no reason to suspect that Juror No. 3 harbored unspoken bias against Zebroski.
Finally on the challenge to jury selection, Zebroski is correct that the court placed great weight on the jury's recommendation and a different recommendation might have justified a different outcome. But Zebroski overemphasizes the mathematics. The court also saw the sentencing case as it was presented to the jury. The jury vote, whether it had been 10-2 or 8-4, instead of 9-3, reflected a broad consensus that the strong mitigators were outweighed by even stronger aggravators. Assuming that Zebroski's claims were not procedurally barred, he has failed to meet either of Strickland's tests.
C. Delaware's death penalty statute and Apprendi v. New Jersey
Next, Zebroski challenges Delaware's death penalty statute on constitutional grounds. Zebro ski claims:
Delaware's statutory scheme for the imposition of the death penalty following a conviction of first degree murder violates the due process clause of the United States Constitution as interpreted by the United States Supreme Court in Apprendi v. New Jersey.
530 U.S. 466 (2000).
Assuming that Apprendi applies retroactively, a questionable assumption, Zebroski's constitutional claim is before the court properly. Nevertheless, Apprendi is inapplicable. Zebroski attempts to bring this case under Apprendi by inappropriately analogizing Delaware's death penalty statute to the New Jersey hate crime statute found unconstitutional by the United States Supreme Court.
Capano V. State, Del. Supr., ___ A.2d ___, Nos. 110 and 149, 1999, en banc, (Aug. 10, 2001), Op. at 202-208.
In Apprendi, the defendant pleaded guilty to several crimes, including two counts of second-degree possession of a firearm for an unlawful purpose. New Jersey's law provides a maximum sentence of 5-10 years for a "second-degree" possession of a firearm for an unlawful purpose offense. The State reserved the right to ask the court to impose a "higher "enhanced' sentence" on one of the two counts "on the ground that [it] was committed with a biased purpose" as described in New Jersey's "hate crime" statute. The trial judge found" "by a preponderance of the evidence' that Apprendi's actions were taken "with a purpose to intimidate' as provided in the statute." The trial judge applied the hate crime enhancement and sentenced Apprendi to a 12-year prison term. The New Jersey Supreme Court affirmed.
Id. at 468.
Id. at 469-470.
Id. at 471.
Id.
The United States Supreme Court granted certiorari and reversed. The Court found that the sentence enhancement violated due process since it removes a defendant's right to have ajury determine guilt as to "every element of the crime which he is charged, beyond a reasonable doubt." Summarizing prior decisions, the Court stated:
Id. at 476-477 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)).
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule . . . [that,] "[It] is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."
Id. at 489 (quoting Jones v. United States, 526 U.S. 227, 252-253 (1999)).
The Court further stated:
The New Jersey statutory scheme . . . allows a jury to convict a defendant ofa second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree . . . Based upon the judge's finding, by a preponderance of the evidence, that the defendant's "purpose" for unlawfully possessing the weapon was "to intimidate" his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule . . . that practice cannot stand.
Id. at 491.
Zebroski essentially claims that because Delaware's death penalty statute provides judicial discretion in sentencing, Delaware's statute is unconstitutional in the same way as New Jersey's hate crime statute. Zebroski specifically argues:
Likewise, the Delaware death penalty statute violates due process because the Delaware legislature gives the final say as to the existence of a statutory aggravating circumstance, and relegates the jury to an advisory role.
Zebroski concludes that the "validity . . . of death penalty statutes like Delaware's, in light of Apprendi, is very much an open question."
Zebroski's reliance on Apprendi is misplaced. Delaware's death penalty statute provides a penalty hearing where the jury makes a sentencing recommendation. Further, the statute provides for a maximum sentence of life imprisonment or death. The statute does not, in any way, provide for any "higher enhancement" of the maximum statutory penalty, at the judge's discretion. Moreover, Apprendi, itself, expressly addresses its relevance to capital sentencing. Apprendi specifically states:
This Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.
Id. at 496 (citing Walton v. Arizona, 497 U.S. 639, 647-649 (1990)). See also Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Here, the court did not exceed the maximum term statutorily prescribed for the offense. For first degree murder, the statutory penalties are death or life imprisonment without parole. The court considered the jury's recommendation and the record selecting between the statutorily acceptable alternative sentences. Zebroski has failed to demonstrate that Delaware's death penalty statute violates his due process rights under the United States Constitution. He offers no evidence or examples to substantiate his claim. Apprendi simply does not apply.
D. Appellate Counsel's Failure to Raise Residual or Lingering Doubt
Zebroski claims that appellate counsel's "failure competently to conduct legal research before rejecting the argument of "lingering doubt' on appeal" and counsel's failure to raise and preserve the issue prejudiced Zebroski and hindered the case's outcome.
No Delaware case specifically addresses so-called "lingering" or "residual doubt." In Franklin v. Lynaugh, the United States Supreme Court, however, has spoken definitively. Franklin states that defendants have no " right to demand jury consideration of `residual doubts' in the sentencing phase." The Court states that its decisions:
487 U.S. 164 (1988).
Id. at 173.
in no way mandate reconsideration by capital juries, in the sentencing phase, of their "residual doubts" over a defendant's guilt. . . . This Court's prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.
Id. at 174.
Instead, the decision to pursue a residual doubt argument is a strategy issue.
See Felker v. Thomas, 11th Cir., 52 F.3d 907, 912 (1995), cert. denied, 516 U.S. 1133 (1996).
At trial, the court decided not to include a jury instruction regarding residual doubt. Furthermore, the court would not allow counsel to argue residual doubt. During allocution, however, Zebroski argued residual doubt, without court interference.
See generally Shelton v. State, Del. Supr., 744 A.2d 465, 496-497 (1999), cert. denied, Shelton v. Delaware, 530 U.S. 1218 (2000).
In his affidavit, appellate counsel states that he considered and rejected presenting a residual doubt theory. Instead, appellate counsel chose to pursue six other issues. Zebroski's assertion that appellate counsel failed "competently to conduct legal research before rejecting . . . `lingering doubt'" is untrue.
Based on appellate counsel's affidavit, the court agrees with the State that Zebroski's appellate counsel, "understood the issue and rejected it on direct appeal for strategic reasons." Moreover, it is a well-settled precept that it is an attorney's purview to make strategic decisions:
Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals.
Polk County v. Dodson, 454 U.S. 312, 323 (1981).
Applying Strickland to appellate counsel's effectiveness requires discretion on this court's part. This court hardly is the final arbiter of what is expected of appellate counsel and whether prejudice has been established. Nevertheless, on the record presented, this court finds that appellate counsel was not obligated to raise residual doubt on appeal and if appellate counsel had raised the argument, it would have been unavailing.
In closing on the point, had trial counsel been allowed to present and belabor residual doubt for the jury, the court would have taken that into account as it made the final sentencing decision. Just as over emotionalism and excessive sentimentality could have undercut the jury's recommendation, if trial counsel had injected residual doubt into the penalty hearing record, that too would have undermined the jury's recommendation.
The court agrees with the State that Zebroski has "failed to establish a performance deficiency" so that appellate counsel's "representation was not professionally reasonable." Zebroski does not demonstrate that appellate counsel's actions fell below an objective standard of reasonableness. Nor does he demonstrate that but for appellate counsel's error, the appeal results would have been different.
V.
In the final analysis, the court finds that trial counsel presented a fair case to a fair jury. While different trial counsel might have presented the case differently in some ways and a different jury might have made a slightly different recommendation, the case's presentation was as expected. The jury's recommendation, sadly, was in line with the evidence, even considering trial counsel's efforts and his divinely inspired closing exhortation to "choose life."
Deuteronomy 30:19 (King James).
VI.
For the foregoing reasons, Defendant's Rule 61 Motion for Postconviction Relief is DENIED.IT IS SO ORDERED.