McDowell, Derryle S. v. Kingston, Phil ( 2007 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-3288
    DERRYLE S. MCDOWELL,
    Petitioner-Appellant,
    v.
    PHILLIP A. KINGSTON, Warden,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 05 C 498—William C. Griesbach, Judge.
    ____________
    ARGUED APRIL 11, 2007—DECIDED AUGUST 15, 2007
    ____________
    Before CUDAHY, KANNE, and WOOD, Circuit Judges.
    CUDAHY, Circuit Judge. The petitioner, Derryle S.
    McDowell, was convicted of sexual assault, kidnapping
    and armed robbery and was sentenced to 200 years
    in prison. At trial, McDowell’s trial counsel had him testify
    in a narrative form rather than lead him through a
    question and answer format. In considering McDowell’s
    post-conviction motion, the Wisconsin Supreme Court
    applied Strickland v. Washington, 
    466 U.S. 668
     (1984), and
    determined that McDowell’s trial counsel’s decision to
    have McDowell testify in a narrative format without
    knowing that he would testify untruthfully and without
    notifying McDowell of his decision to do so was deficient,
    but still denied relief finding no prejudice. The federal
    2                                              No. 06-3288
    district court also denied the petition, holding, in part,
    that the Wisconsin Supreme Court’s decision to apply
    Strickland, instead of presuming prejudice under United
    States v. Cronic, 
    466 U.S. 648
     (1984), was not contrary to
    clearly established federal law. We agree and affirm the
    denial of McDowell’s petition.
    I. Background
    On April 21, 1997, an 18-year-old woman was sexually
    assaulted by two men near a building at 4720 West
    Burleigh Street in Milwaukee. After the assault, the victim
    spat ejaculate onto the ground. Although the victim could
    not identify her attackers, the State based its case
    against the defendant Derryle McDowell on evidence
    collected from the victim’s body, clothing and the scene.
    Namely, the police recovered a sample of the victim’s
    saliva mixed with semen containing McDowell’s DNA.
    This appeal primarily concerns McDowell’s testimony
    at trial. On the third day of trial, after the State had
    rested, McDowell’s counsel, Attorney Ronald Langford,
    expressed reservations to the court about his ability to
    effectively proceed as counsel and asked to withdraw.
    Specifically, he implied that his concerns related to the
    possibility that McDowell would testify untruthfully. The
    trial court advised Attorney Langford of two options: (1) he
    could recommend to McDowell that he not testify if his
    intended account was untrue, or (2) take the “middle
    ground” by calling McDowell to testify in narrative form.
    (R. 74 at 6-7.) Attorney Langford’s request to withdraw
    from the case was denied. After a short break, Attorney
    Langford informed the court that:
    Judge, I have no reason to believe in light of what
    Mr. McDowell has told me that he will not get up there
    and testify as to the truth. Therefore when he takes
    No. 06-3288                                               3
    the stand I will be asking him questions, specific
    questions with respect to his testimony before this
    jury.
    (R. 74 at 12.)
    Attorney Langford then gave his opening statement, in
    which he told the jury that McDowell would testify that he
    never assaulted the victim and that the area where the
    crime took place was behind the building where his
    father lived. Counsel further explained that McDowell had
    been in the area the night before the assault, had oral sex
    with his girlfriend and had ejaculated, which would
    account for his semen’s being found at the scene.
    After Attorney Langford completed his opening state-
    ment, McDowell took the stand. Shortly thereafter, while
    McDowell was still on the stand, Attorney Langford
    received a note from the public defender’s office which
    stated: “Tyroler [an appellate attorney in the Office of
    the State Public Defender] says go with narrative. Tell
    that to the client. It must be by narrative.” (R. 79 at 78.)
    McDowell’s counsel began his examination in the ques-
    tion and answer format, asking three questions about
    McDowell’s age and residence. He then stated, “Mr.
    McDowell, I want you to look at this jury and tell this
    jury about the events of April 20 and 21 of 1997. Take
    your time and speak loudly and clearly, please.” (R. 74
    at 20.)
    The court, apparently confused by this change of plans,
    called a sidebar conference, after which the court in-
    structed the jury not to consider the opening statements
    or closing statements of counsel as evidence and directed
    McDowell’s counsel to restate the question. Attorney
    Langford said, “Again, Mr. McDowell, take your time and
    tell this jury what you would like for them to know
    regarding the allegations against you beginning with
    where you were and what you were doing on April 20,
    4                                                    No. 06-3288
    1997, through the early morning hours of April 21, 1997.
    Proceed, please.” (R. 74 at 22.) In brief, McDowell testified
    that he and his girlfriend, Sunshine, “fooled around” and
    had oral sex behind his father’s apartment the evening of
    April 20, 1997. His father caught them in the alley and
    became angry. He and his father eventually drove Sun-
    shine home, returned to the house later that evening
    and went to bed. McDowell claims that some key facts
    were missing from his account which could have been
    solicited in a question and answer format. The jury
    ultimately found McDowell guilty of one count of armed
    robbery, one count of kidnapping and five counts of first
    degree sexual assault with the use of a weapon. He was
    sentenced to 200 years in prison and forty years of proba-
    tion.
    McDowell filed a post-conviction motion in the circuit
    court claiming ineffective assistance of counsel. The cir-
    cuit court held a Machner hearing to determine the
    validity of McDowell’s claim.1At the hearing, Attorney
    Langford testified that he initially believed that McDowell
    was lying about this sexual activity with his girlfriend.
    He noted inconsistencies between their accounts, the fact
    that McDowell introduced this theory of defense only
    after learning about the DNA evidence and also recounted
    a conversation with McDowell in which McDowell told
    him, “I’ll say what I need [to] say to help myself out and
    if I have to say something untruthful[,] I’ll say that.” (R. 79
    at 109.) In preparation for McDowell’s taking the stand,
    Attorney Langford testified that he warned McDowell
    that he might need to testify in a narrative form and, if he
    1
    Under State v. Machner, 
    285 N.W.2d 905
     (Wis. Ct. App. 1979),
    a hearing may be held when a criminal defendant’s trial counsel
    is challenged for allegedly providing ineffective assistance. At
    the hearing, the trial counsel testifies to his or her reasoning on
    the challenged action or inaction. 
    Id. at 908-09
    .
    No. 06-3288                                                 5
    did, that McDowell should testify to everything he would
    want the jury to know because it would be his only oppor-
    tunity. Attorney Langford also testified that he had
    intended to lead McDowell through questions, but that
    his plan later changed when he received the note from
    the public defender’s office. Attorney Langford conceded
    that he did so without advising McDowell of the change
    and without having personally concluded that McDowell
    intended to lie.
    The circuit court denied McDowell’s petition, finding that
    McDowell’s counsel had reacted in a way that best pre-
    served his client’s rights and discharged his own ethical
    responsibilities, and that the outcome of the trial would
    not have been different in light of the DNA evidence if
    McDowell had testified instead in a question and answer
    format. See State v. McDowell, 
    669 N.W.2d 204
    , 217 (Wis.
    Ct. App. 2003). The Wisconsin Court of Appeals affirmed
    the circuit court’s denial of McDowell’s petition; however,
    the court of appeals, unlike the circuit court, found
    Attorney Langford’s performance to be deficient because
    he did not know that McDowell would testify untruthfully
    when he switched to a form of narrative testimony and
    failed to inform McDowell of the change of plans. 
    Id. at 227
    . Regardless, the court of appeals, like the circuit court,
    did not find McDowell to have been prejudiced by this
    error. 
    Id. at 229-30
    . The Wisconsin Supreme Court af-
    firmed the denial of McDowell’s petition on the same
    ground as that of the court of appeals. State v. McDowell,
    
    681 N.W.2d 500
    , 505 (Wis. 2004).
    McDowell then filed a petition for writ of habeas corpus
    in the Eastern District of Wisconsin. The district court
    denied the petition finding that the Wisconsin Supreme
    Court’s determination that McDowell was not prejudiced
    by his trial counsel’s performance was not contrary to, nor
    an unreasonable application of, clearly established fed-
    eral law as determined by the Supreme Court of the
    6                                              No. 06-3288
    United States. McDowell v. Kingston, No. 05-C-0498, 
    2006 WL 2289304
    , at *1 (E.D. Wis. Aug. 8, 2006). The district
    court certified the following question for our review:
    Were the state court decisions rejecting petitioner’s
    Sixth Amendment ineffective assistance of counsel
    claim contrary to clearly established federal law with-
    in the meaning of 
    28 U.S.C. § 2254
    (d)?
    (R. 28 at 2.) In other words, we consider in the present
    case whether the Wisconsin Supreme Court’s decision to
    apply Strickland, which requires a showing of prejudice,
    instead of Cronic, where prejudice is presumed, was
    contrary to clearly established federal law.
    II. Discussion
    The Antiterrorism and Effective Death Penalty Act of
    1996 (“AEDPA”) governs our review of McDowell’s peti-
    tion for writ of habeas corpus. Relevant for this review, a
    federal court can grant relief only if the state court’s
    decision: (1) was “contrary to . . . clearly established
    Federal law, as determined by the Supreme Court of the
    United States”; or (2) “involved an unreasonable applica-
    tion of . . . clearly established Federal law, as determined
    by the Supreme Court of the United States.” 
    28 U.S.C. § 2254
    (d)(1). A state court’s decision is “contrary to”
    clearly established federal law if the state court either
    “applies a rule that contradicts the governing law” set
    forth by the Supreme Court or decides a case differently
    than the Supreme Court has on materially indistinguish-
    able facts. Williams v. Taylor, 
    529 U.S. 362
    , 405 (2000).
    When the claim falls under the “contrary to” clause, the
    federal court will review the state court decision independ-
    ently to determine what the clearly established federal
    law is and whether the state court decision is contrary
    to that precedent. 
    Id. at 378-79
    .
    No. 06-3288                                                  7
    On appeal, McDowell argues that the Wisconsin Su-
    preme Court erroneously applied Strickland and instead
    should have presumed prejudice under Cronic. He raises
    two grounds in support of this contention. First, the
    petitioner claims Attorney Langford’s failure to lead him
    through question and answers during his testimony
    constituted a denial of counsel at a critical stage of the
    trial or, alternatively, that Attorney Langford’s failure
    constituted an abandonment of McDowell’s defense.
    Second, McDowell argues that Attorney Langford suffered
    a conflict of interest between his duty of loyalty to his
    client and his duty to comply with the directions in the
    note from the public defender’s office.
    Generally, claims of ineffective assistance of counsel are
    evaluated under a two-prong analysis announced in
    Strickland. Under Strickland, a claimant must prove
    (1) that his attorney’s performance fell below an objective
    standard of reasonableness and (2) that the attorney’s
    deficient performance prejudiced the defendant such that
    “there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding
    would have been different.” 
    466 U.S. 668
    , 690, 694.
    Decided the same day as Strickland, the Court in
    Cronic held that in “circumstances that are so likely to
    prejudice the accused that the cost of litigating their
    effect in a particular case is unjustified,” prejudice will
    be presumed. 
    466 U.S. 648
    , 658. The Court defined
    three exceptions to Strickland where it is appropriate for
    a court to presume prejudice: (1) where there is a “com-
    plete denial of counsel” or denial at a “critical stage” of the
    litigation; (2) where counsel “entirely fails to subject the
    prosecution’s case to meaningful adversarial testing”; and
    (3) where “although counsel is available to assist the
    accused during trial, the likelihood that any lawyer, even
    a fully competent one, could provide effective assistance
    is [very] small.” 466 U.S. at 659-60; see also Miller v.
    8                                                   No. 06-
    3288 Martin, 481
     F.3d 468, 472 (7th Cir. 2007). The Court has
    subsequently recognized Cronic as a “narrow exception” to
    Strickland. Florida v. Nixon, 
    543 U.S. 175
    , 190 (2004).
    A. Denial of Counsel at a Critical Stage
    The petitioner’s first argument—that we should presume
    prejudice because he was actually or constructively denied
    counsel at a critical stage of the litigation—fails to satisfy
    the requirements of Cronic’s first category. The Supreme
    Court has consistently limited the presumption of preju-
    dice to cases where counsel is physically absent at a
    critical stage.2 See Penson v. Ohio, 
    488 U.S. 75
    , 88 (1988)
    (applying Cronic where defense counsel erroneously
    moved to dismiss any appeal leaving the petitioner
    “completely without representation during the appeals
    court’s actual decisional process”); White v. Maryland, 
    373 U.S. 59
    , 60 (1963) (presuming prejudice where defendant
    pleaded guilty at a preliminary hearing before he was
    appointed counsel); Hamilton v. Alabama, 
    368 U.S. 52
    , 54-
    55 (1961) (presuming prejudice where defendant was
    completely without counsel when he pleaded guilty to a
    capital charge and irrevocably waived other pleas); see also
    Siverson v. O’Leary, 
    764 F.2d 1208
    , 1217 (7th Cir. 1985)
    2
    There are some cases, typically involving sleeping or uncon-
    scious lawyers, where courts have presumed prejudice even
    though counsel was technically physically present. See Burdine
    v. Johnson, 
    262 F.3d 336
    , 341 (5th Cir. 2001); Tippins v. Walker,
    
    77 F.3d 682
    , 686 (2d Cir. 1996); Javor v. United States, 
    724 F.2d 831
    , 833 (9th Cir. 1984). But, the alleged “absence” of Attorney
    Langford is distinguishable from these cases. Arguments
    concerning constructive denial of counsel are best considered
    under Cronic’s second category—where counsel has “entirely
    failed to subject the prosecution’s case to meaningful adversarial
    testing.”
    No. 06-3288                                                  9
    (applying a presumption of prejudice where the defen-
    dant’s trial counsel was absent during jury deliberations
    and at the return of the verdicts). Here, counsel was
    physically present at all stages of the litigation, including
    during McDowell’s testimony, and therefore, we cannot
    hold that McDowell was actually denied counsel.
    Moreover, McDowell has failed to present any authority
    from the United States Supreme Court indicating that
    his testimony, isolated from the rest of his defense,
    constitutes a critical stage of the litigation. Cf. Penson, 
    488 U.S. at 88
     (holding that an appeal constitutes a critical
    stage); White, 
    373 U.S. at 60
     (holding that a “preliminary
    hearing” where the defendant was allowed to enter a plea
    constitutes a critical stage); Hamilton, 
    368 U.S. at 54
    (holding that an arraignment was a critical stage of the
    proceedings because available defenses may be irretriev-
    ably lost).
    The petitioner relies heavily on our decision in Van
    Patten v. Deppisch, 
    434 F.3d 1038
     (7th Cir. 2006) for
    support of his argument that prejudice should be pre-
    sumed because McDowell was denied counsel at a critical
    stage in the proceeding.3 In Van Patten, we held that the
    Wisconsin appellate court acted contrary to clearly estab-
    lished Supreme Court precedent in applying Strickland
    instead of Cronic where petitioner’s counsel participated
    via a conference call at the plea hearing. 
    Id. at 1043
    .
    McDowell compares Van Patten to his circumstances here
    in urging that, by switching to a narrative format, Attor-
    3
    The Supreme Court vacated our judgment in Van Patten and
    remanded for reconsideration in light of Carey v. Musladin, 
    127 S.Ct. 649
     (2006). Schmidt v. Van Patten, 
    127 S.Ct. 1120
     (2007).
    After reconsideration, we recently reinstated the judgment. Van
    Patten v. Endicott, No. 04-1276, 
    2007 WL 1654396
     (7th Cir. June
    5, 2007).
    10                                               No. 06-3288
    ney Langford became “absent” in a way similar to the trial
    counsel in Van Patten. But, this analogy fails. In Van
    Patten, we placed tremendous emphasis on the fact that
    counsel was physically absent from the proceedings. We
    explained:
    He could not turn to his lawyer for private legal
    advice, to clear up misunderstandings, to seek reassur-
    ance, or to discuss any last minute misgivings. Listen-
    ing over an audio connection, counsel could not detect
    and respond to cues from his client’s demeanor that
    might have indicated he did not understand certain
    aspects of the proceeding, or that he was changing
    his mind.
    
    Id.
     Here, McDowell’s counsel was physically present at all
    stages of the litigation. He informed McDowell of the
    possibility of narrative testimony before he took the stand
    and instructed him to tell the jury everything he would
    want them to know. Moreover, whereas there is sub-
    stantial precedent indicating that a plea hearing is a
    “critical stage” of the litigation (see, e.g., White, 
    373 U.S. at 60
    ), as already discussed, McDowell has failed to
    point to any authority from the Supreme Court indicating
    that the defendant’s testimony itself constitutes a critical
    stage.4
    Thus, the petitioner has failed to demonstrate that he
    was denied counsel at a critical stage of the proceedings
    and, therefore, his claim fails to fit within the first Cronic
    category.
    4
    Van Patten can further be distinguished from the present
    case. The court in Van Patten also indicated that allowing
    counsel to appear via phone was an error involving a small
    likelihood of ability to provide effective assistance (of the
    sort covered by the third Cronic category), while here the
    petitioner does not claim a similar structural error. 
    434 F.3d at 1043
    .
    No. 06-3288                                              11
    B. Failure to Subject Prosecution’s Case to Mean-
    ingful Adversarial Testing
    We also cannot presume prejudice under the second
    Cronic category—where counsel “entirely fails to subject
    the prosecution’s case to meaningful adversarial test-
    ing”—because Attorney Langford’s deficient representation
    was not a complete failure. In Bell v. Cone, 
    535 U.S. 685
    ,
    697-98 (2002), the Court clarified what constitutes an
    “entire failure” by drawing a clear distinction between a
    failure to oppose the prosecution throughout an entire
    proceeding and a failure to do so at specific points, con-
    cluding that a failure at specific points will not trigger a
    presumption of prejudice. Id.; see also United States v.
    Morrison, 
    946 F.2d 484
    , 500 n.3 (7th Cir. 1991).
    McDowell claims that by switching to a narrative form,
    Attorney Langford effectively abandoned his defense,
    rendering him “constructively absent” from the proceed-
    ings. The type of failure McDowell asserts is more properly
    characterized as a failure at a specific point in the litiga-
    tion rather than a complete failure of the type necessary to
    trigger a presumption of prejudice under the second
    category. The record indicates that Attorney Langford did
    subject the prosecution’s case to adversarial testing. He
    cross-examined witnesses. He gave an opening state-
    ment in which he presented McDowell’s defense. Addi-
    tionally, Attorney Langford testified that he warned
    McDowell prior to his taking the stand that he might
    have to testify in narrative form and advised him as to
    what that testimony should entail. “I made it clear to him
    that once you start talking, make sure you say everything
    you want to say. You are going to get [only] one kick at
    the cat.” (R. 79 at 116.) Attorney Langford also guided
    McDowell into his narrative testimony by instructing him
    to “look at this jury and tell this jury about the events of
    April 20 and April 21 of 1997. Take your time and speak
    loudly and clearly, please.” (R. 74 at 20.) Attorney Lang-
    12                                             No. 06-3288
    ford also gave a closing statement, in which he questioned
    the State’s DNA evidence and reaffirmed McDowell’s
    defense. To be clear, we do not question the Wisconsin
    Supreme Court’s determination that Attorney Langford’s
    decision to have McDowell testify in a narrative form
    was deficient representation since Attorney Langford did
    not know McDowell would testify untruthfully and did not
    inform McDowell of the switch in plans. Nonetheless,
    an isolated mistake, like the one found here, does not
    constitute a “complete failure to subject the prosecu-
    tion’s case to adversarial testing,” nor does it render an
    attorney “constructively absent” from the proceedings. Cf.
    Van Patten, 
    434 F.3d at 1044
     (applying Cronic, but noting
    that the defendant “does not allege, for example, that his
    attorney botched his defense through bad legal judgments,
    or misinformed him of the ramifications of his plea”).
    Patrasso v. Nelson, 
    121 F.3d. 297
     (7th Cir. 1997) further
    supports this result. In Patrasso, in which the defendant’s
    counsel gave no opening argument, asked the defendant
    only one question during his testimony, conducted “perfunc-
    tory” cross-examination of witnesses and, in response to
    the court’s urging, gave only a two-sentence closing
    statement, we declined to presume prejudice under the
    second Cronic category. 
    Id. at 299
    . We concluded that
    “Patrasso had an attorney and the attorney did take some
    action on his behalf.” 
    Id. at 302
    . Attorney Langford’s
    performance in the present case clearly surpasses in
    quality that of the trial counsel’s in Patrasso. Since we
    did not apply Cronic in that case, we certainly cannot in
    the present one.
    Because Langford’s failure was only at a specific point in
    the litigation and was not a wholesale failure, McDowell’s
    claim fails under the second Cronic category. We will not
    evaluate his claim under the third category, which con-
    cerns circumstances in which no attorney could provide
    effective assistance of counsel, because McDowell does
    not assert any such structural errors in his petition.
    No. 06-3288                                                 13
    C. Conflict of Interest
    McDowell also argues that the Wisconsin Supreme Court
    should have presumed prejudice because Attorney Lang-
    ford suffered a conflict of interest between his “duty of
    loyalty to his client and the duty of adhering to the
    pressures of that established by the note that was passed
    to trial counsel at a critical stage of the jury trial.” (Peti-
    tioner’s Reply Br. at 6.)
    In Cuyler v. Sullivan, 
    446 U.S. 335
    , 338 (1980), the
    defendant alleged ineffective assistance resulting from a
    “conflict of interest” because his lawyers also represented
    his co-defendants. The Court held that a presumption of
    prejudice is appropriate “where an attorney has labored
    on behalf of a defendant while harboring a conflict of
    interest.” 
    Id. at 349-50
    . A “conflict of interest” is defined as
    a conflict between a duty of loyalty to a client and a private
    interest or a conflict between a duty of loyalty owed to one
    client and the duty owed to another in a multiple represen-
    tation situation as in Cuyler. See Black’s Law Dictionary
    295 (7th ed. 1999). But, the conflict alleged in the present
    case is not the kind of conflict at issue in Cuyler. Rather,
    the alleged conflict Attorney Langford experienced between
    his duty of loyalty to McDowell and his “duty of adhering
    to the pressures of that established by the note” is better
    described as a problem of determining the appropriate
    ethical course. In Nix v. Whiteside, 
    475 U.S. 157
    , 176
    (1986), which McDowell also cites but fails to cite in full,
    the Court specifically noted that a presumption of preju-
    dice is not appropriate for conflicts like the one alleged in
    the present case, explaining that the “ ‘conflict’ . . . imposed
    on the attorney by the client’s proposal to commit the
    crime of fabricating testimony . . . is not remotely the kind
    of conflict of interests dealt with in Cuyler v. Sullivan.”
    The Wisconsin Supreme Court correctly noted, “[t]o equate
    these divided loyalties in [Cuyler] with the potential
    divided loyalties here misses the mark.” State v. McDowell,
    14                                             No. 06-3288
    681 N.W.2d at 516. Attorney Langford may have experi-
    enced a conflict, but not a conflict of interest warranting
    a presumption of prejudice pursuant to Cuyler.
    In conclusion, we hold that the Wisconsin Supreme
    Court’s determination to apply Strickland, instead of
    presuming prejudice under Cronic, was not contrary to
    clearly established federal law. McDowell was not denied
    counsel at a critical stage of the litigation since Attorney
    Langford was present throughout the proceedings. Attor-
    ney Langford did subject the prosecution’s case to “mean-
    ingful adversarial testing” and therefore his failure
    was not a “complete failure.” Finally, Attorney Langford’s
    alleged conflict between his duty of loyalty to McDowell
    and his “duty of adhering to the pressures of that estab-
    lished by the note” is not the type of conflict which war-
    rants a presumption of prejudice under Cuyler.
    III. Conclusion
    For the foregoing reasons, we AFFIRM the district court’s
    denial of McDowell’s petition for writ of habeas corpus.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-15-07