Kohler v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-30908
Summary Calendar
____________________
KIM KOHLER
Petitioner - Appellant
v.
BURL CAIN, Warden, Louisiana State Penitentiary
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1318-H
_________________________________________________________________
March 9, 2001
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Petitioner Kim Kohler appeals the district court’s denial of
relief on his 28 U.S.C. § 2254 petition. On May 5, 2000, a panel
of this court remanded Kohler’s case for an evidentiary hearing
on the question whether Kohler’s trial counsel, Salvadore
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Panzeca, rendered ineffective assistance by failing to subpoena
codefendant Richard Allnet to testify at Kohler’s trial. See
Kohler v. Cain, 214 F.3d 1350 (5th Cir. 2000). The evidence
presented at the evidentiary hearing revealed that Panzeca
attempted to obtain Allnet’s presence, but that Allnet’s attorney
refused to permit Allnet to testify. At that point, Panzeca was
ethically barred from pursuing the matter further. See LA. CODE
PROF’L RESPONSIBILITY EC 7-18, DR 7-104(A)(1) (1980) (“[A] lawyer
should not communicate on the subject matter of the
representation of his client with a person he knows to be
represented in the matter by a lawyer[.]”).
Panzeca was also aware that each of the four codefendants
involved in the incident for which Kohler was convicted were
“pointing fingers” at each other. As such, he was concerned that
Allnet would have made a “damaging witness” and would have
“turned state’s evidence” at trial. This concern was supported
by a transcript of Allnet’s grand jury testimony, which was in
Panzeca’s possession prior to trial. In that transcript, Allnet
made incriminating statements as to Kohler’s active involvement
in the crime.
After our thorough review of the evidentiary hearing record,
we conclude that Panzeca attempted to obtain Allnet’s presence on
the request of Kohler and also made a strategic decision, based
upon a review of the grand jury transcript, not to call Allnet as
a witness at Kohler’s trial. Accordingly, his conduct did not
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constitute deficient performance. See Strickland v. Washington,
466 U.S. 668, 687 (1984).
Kohler also asserts that he did not receive a fair
evidentiary hearing before the district court because Allnet did
not testify at that hearing. We disagree. As an initial matter,
Kohler did not subpoena Allnet for the hearing. Second, to the
extent Kohler is asserting that his hearing attorney failed to
subpoena Allnet, there is no constitutional right to counsel in
habeas proceedings, and therefore, Kohler cannot claim
ineffective assistance of counsel in such proceedings. See
Irving v. Hargett, 59 F.3d 23, 26 (5th Cir. 1995); Johnson v.
Hargett, 978 F.2d 855, 859 (5th Cir. 1992).
Finally, within his appellate brief, Kohler refers to
various constitutional violations other than his ineffective-
assistance claim. These assertions include that he was denied
his right to compulsory process, that the State improperly
sanctioned perjured testimony from one of its witnesses, and that
Panzeca prevented Kohler from testifying at trial. To the extent
that any of these are issues raised separately from Kohler’s
ineffective-assistance claim, the district court did not grant a
certificate of appealability on those issues, nor did Kohler
request one. Accordingly, those issues are not properly before
this court. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th
Cir. 1997) (limiting appellate review to only those issues
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specified in the certificate of appealability); cf. United States
v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998).
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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