United States v. April E. Shepard ( 1995 )

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No. 95-2433
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
April Earlene Shepard, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 12, 1995
Filed: December 20, 1995
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Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER,* District Judge.
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PER CURIAM.
Pursuant to 28 U.S.C. § 2255 (1988), April Shepard, a federal
prisoner, moved the District Court1 for an order vacating her sentence.
The sole basis for Shepard's motion was that her trial counsel was
ineffective at her sentencing hearing because counsel did not present any
evidence to show that Shepard suffered from battered-woman syndrome at the
time she engaged in the offense for which she was convicted. The District
Court denied the motion, and Shepard timely appeals. We affirm.
*THE HONORABLE WILLIAM W. SCHWARZER, United States
District Judge for the Northern District of California,
sitting by designation.
1
The Honorable Harold D. Vietor, United States District Judge
for the Southern District of Iowa.
In 1992 Shepard pled guilty to violating 18 U.S.C. § 1958(a) (1988)
by using the United States mails with the intent that a murder be
committed. At sentencing, the District Court heard testimony from Shepard,
Shepard's intended victim and common-law husband John Shepard, and
Shepard's daughter. The witnesses stated that the Shepards had an abusive
relationship and that Shepard was mentally ill when she attempted to hire
someone to kill her husband and used the mails to facilitate the scheme.
Based on this testimony, Shepard moved for downward departures pursuant to
U.S.S.G. §§ 5K2.12 (duress), 5K2.13 (diminished capacity), and 5K2.10
(conduct of victim). The District Court denied the motion and sentenced
Shepard to 97 months in prison and three years of supervised release.
Shepard appealed her sentence, arguing that the District Court should have
departed downward, and we affirmed.
In her § 2255 motion, Shepard raises only one issue: ineffective
assistance of counsel based on counsel's failure to offer evidence at
sentencing to prove that she was suffering from battered-woman syndrome at
the time of her criminal conduct. After an evidentiary hearing, the
District Court found that Shepard's trial attorney, Timothy McCarthy II,
had considered offering evidence regarding battered-woman syndrome but,
after a thorough investigation, decided not to do so because he believed
he could not establish that Shepard was suffering from battered-woman
syndrome.
McCarthy hired an investigator to uncover evidence that would prove
that Shepard suffered from battered-woman syndrome. McCarthy's
investigator reported that (1) the Shepards' relationship had been abusive
in the past but that it had calmed down prior to April Shepard's criminal
conduct, (2) the sole episode of physical abuse by John Shepard that could
be documented was three or four years prior to April Shepard's criminal
conduct; and (3) both of the Shepards were aggressors in the abusive
relationship. Moreover, the record reveals that in response to
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Shepard's general allegations of abuse and threats McCarthy asked her for
details of specific events. Shepard, however, provided him with nothing
other than the single incident from at least three years before her
criminal conduct. Joint Appendix at 231. McCarthy also had Shepard
evaluated for competency by Dr. M.A. Conroy, chief of forensics at the
Lexington, Kentucky Federal Correctional Institution. Dr. Conroy's report
states that Shepard had a history of alcohol abuse and may have suffered
from chronic depression for many years but that she was not "suffering from
any type of psychotic disorder." Id. at 133. The doctor also stated that
"[a]t the present time, April Shepard is not suffering from any mental
illness which would seriously interfere with her cognitive processes." Id.
While a competency evaluation is not the same thing as an evaluation by a
battered-woman-syndrome expert, Dr. Conroy's report supports counsel's
conclusion regarding the lack of evidence that Shepard suffered from
battered-woman syndrome. Additionally, counsel conferred with other
attorneys about the plausibility of asserting a battered-woman-syndrome
defense. He was uniformly advised against it. Based on all of these
factors, McCarthy decided not to pursue the issue and thus did not petition
the court for appointment of a battered-woman-syndrome expert. The
District Court held that McCarthy's decision was "a reasonable decision
under prevailing professional norms considering all the circumstances."
United States v. Shepard, No. 92-5 (S.D. Iowa May 18, 1995) (memorandum
opinion and ruling denying section 2255 relief).
After reviewing the parties' briefs and the relevant portions of the
record, we conclude that the District Court must be affirmed. The District
Court's findings of fact are not clearly erroneous and no error of law
appears. An extended opinion by this Court would add nothing of
precedential value to the well-reasoned opinion of the District Court. We
therefore affirm the judgment of the District Court without further
discussion. See 8th Cir. R. 47B.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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