Dale Atkins v. Richard Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1891

D ALE J. A TKINS,

Petitioner-Appellant,

v.

M ICHAEL Z ENK, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:10-cv-85-JVB—Joseph S. Van Bokkelen, Judge.

A RGUED N OVEMBER 29, 2011—D ECIDED JANUARY 31, 2012

Before P OSNER and K ANNE, Circuit Judges, and P RATT,

District Judge.Œ

P RATT, District Judge. Dale J. Atkins was convicted by

a jury of attempted murder, criminal confinement, domes-

tic battery, and invasion of privacy and sentenced to

Œ

The Honorable Tanya Walton Pratt, District Judge for the

United States District Court for the Southern District of

Indiana, is sitting by designation.

2 No. 11-1891

51 years in prison. Atkins filed a post-conviction relief

petition in Indiana state court, but obtained no relief.

He then filed a federal habeas corpus petition under

28 U.S.C. § 2254, claiming that he was deprived of his

Sixth Amendment right to effective assistance of trial

counsel. The district court denied the petition, but

granted a certificate of appealability. Atkins appealed,

and we affirm.

I. Background

A. Facts

In 2003, Atkins married Yvonne Atkins (“Yvonne”).

Some time later (it is unclear when), they began living

apart, and the relationship soon degenerated into a cycle

of violence. On January 26, 2004, Atkins stood at the

door of Yvonne’s home with a butter knife in one hand

and a butcher knife in the other. Atkins fled when

Yvonne’s brother-in-law answered the door. On Feb-

ruary 27, 2004, Atkins attacked Yvonne, was arrested,

and pled guilty to domestic battery. On April 26, 2004,

Yvonne sought and received a protective order, which

was served on Atkins on April 29, 2004. The protective

order instructed Atkins to stay away from Yvonne and

gave her exclusive possession of the home.

Unfortunately, the protective order had little deterrent

effect. Three days later, on May 2, 2004, Yvonne attended

a neighbor’s cookout. When she returned home after

8:00 p.m., she locked the door and called her neighbor

to say that she had arrived home safely. Yvonne also

No. 11-1891 3

called her nephew, asked him to stay the night, and

unlocked the door so he could let himself into the

home. This practice had become routine, given Atkins’s

increasingly volatile behavior.

Yvonne soon heard a sound at the door, which turned

out to be Atkins. Atkins stated that he wanted a drink,

proceeded to the kitchen, and opened the refrigerator.

Yvonne screamed at him to leave and then attempted

to exit the home. Atkins pulled Yvonne towards him,

put a knife against her neck, and cut her. He sub-

sequently held her against a doorway, stated “I’m tired

of this shit, bitch,” and stabbed her approximately ten

times. One of the stab wounds was less than one inch

from Yvonne’s heart, causing blood to spurt from her

chest every time her heart beat. After Atkins fled the

residence, Yvonne ran to her front porch, where she

yelled for help. Thankfully, Yvonne’s neighbors

responded to her cries and assisted her until medical

personnel arrived. During this time, Yvonne told her

neighbors that Atkins had stabbed her. Yvonne was

treated for internal injuries, including a collapsed lung

and a stab wound to the spleen. Atkins fled Indiana

and was ultimately apprehended in Georgia.

The State charged Atkins with attempted murder,

criminal confinement, domestic battery, and invasion of

privacy. Atkins was represented by attorney Todd Ess.

Prior to trial, Ess met with Atkins four or five times to

discuss trial strategy. Ess also filed a motion in limine

concerning a telephone call that Atkins had made to

Yvonne after the attack, reviewed discovery, formulated

4 No. 11-1891

a trial strategy, deposed Yvonne, and investigated ways

to impeach Yvonne’s credibility. From the outset of

the attorney-client relationship, Atkins maintained that

he was not at Yvonne’s home during the stabbing, al-

though he had occasionally equivocated on this point.

Based on Atkins’s claim that he was not present at

the home and the fact that Atkins was apprehended in

Georgia, Ess prepared to forge an alibi/misidentifica-

tion defense. On the day before trial, however, Atkins

admitted to Ess that he had, in fact, stabbed Yvonne. But

Atkins insisted that the stabbing was an accident that

occurred during mutual combat, and that he had not

intended to kill Yvonne.

In the wake of this revelation, Ess asked Atkins if

he wanted to proceed using an accident defense or a

misidentification defense. Ess advised Atkins that the

best defense was for Atkins to testify as to how the

incident occurred, that there was mutual combat, and

to his state of mind during the incident. This way, Ess

could seek a lesser-included offense instruction, thus

allowing Ess to argue that Atkins was not guilty of at-

tempted murder, which requires “specific intent to kill.”

See Osborne v. State, 754 N.E.2d 916, 924 (Ind. 2001); Ind.

Code § 35-41-5-1. Atkins resisted, telling Ess that he

would not testify; that he did not want to answer

questions about the incident or his relationship with

Yvonne; and that, if he did testify, he would not tell the

jury about using cocaine the night of the incident (even

though he had done so). Stuck in a strategic quandary,

Ess contemplated other defenses based on lack of

No. 11-1891 5

intent, but decided to abandon them in light of Atkins’s

decision to exercise his right not to testify. Further,

Atkins informed Ess that he wanted to pursue the “all

or nothing” approach (i.e., the alibi/misidentification

defense). Ess complied with Atkins’s request.

During opening statements, Ess falsely stated to the

jury that Atkins “went to Georgia and that’s where he

was when this occurred[.]” In a similar fashion, he

stated that police did not find Atkins at the scene

“[b]ecause he was in Georgia.” Nonetheless, despite

raising the specter of an alibi, Ess did not file the

statutorily-required notice of alibi, see Ind. Code § 35-36-4-

1; nor did he tender a jury instruction concerning an

alibi defense.

The defense rested after the State presented its case-in-

chief. During its closing argument, the State highlighted

that the defense had not introduced any evidence that

Atkins was actually in Georgia during the stabbing. In

Ess’s closing argument, he emphasized that the State’s

evidence was confusing, incomplete, and convenient

for the victim. Ess argued that, in total, the holes in the

evidence added up to reasonable doubt. The jury did

not buy Atkins’s defense, finding him guilty on all

counts. Subsequently, the trial judge sentenced Atkins to

an aggregate prison term of 51 years. At sentencing, the

trial judge stated, “Mr. Ess did a good job for you,

Mr. Atkins. He was working uphill but, as with your

attitude towards Ms. Atkins, you don’t seem to ap-

preciate those who are trying to help you or do better

for you[.]”

6 No. 11-1891

B. Post-trial Proceedings

After his conviction, Atkins filed a direct appeal, claim-

ing that the evidence was insufficient to convict him

and that the trial court improperly weighed sentencing

factors. In an unpublished opinion, the Indiana Court of

Appeals affirmed. Atkins v. State, 49A05-0506-CR-00339

(Ind. Ct. App. Jan. 18, 2006).

On November 30, 2006, Atkins filed a petition for post-

conviction relief, claiming that Ess had provided inef-

fective assistance of counsel by pursuing an “irrational

alibi defense” that was based on a known lie. The trial

court held an evidentiary hearing, where both Atkins

and Ess testified. There, Atkins admitted that he “stuck”

Yvonne purposely, and, although he did not intend to

kill her, he knew what he was doing. Specifically,

Atkins testified: “I stabbed her in front of her breast and

I took it to the left a little bit, just thinking that I

would injure her breast and I left, and that was the

only injury that I purposely done.”

Following the hearing, the trial court, in a thorough 18-

page order, denied Atkins’s petition. Specifically, the

trial court addressed both prongs of the test for inef-

fective assistance of counsel: deficient performance and

prejudice. See Strickland v. Washington, 466 U.S. 668 (1984).

Atkins appealed, again claiming that Ess provided inef-

fective assistance by pursing the alibi/misidentification

defense. In an unpublished decision, the Indiana Court

of Appeals affirmed the denial of post-conviction re-

lief. Atkins v. State, 49A04-0903-PC-169 (Ind. Ct. App.

Oct. 20, 2009). In doing so, the appellate court only ad-

No. 11-1891 7

dressed the deficient performance prong of the Strickland

test, ruling that “[c]ounsel has the discretion to deter-

mine what strategy is best under the circumstances . . . .

It is not for us to speculate as to what may or may not

have been advantageous trial strategy.” Following this

decision, the Indiana Supreme Court denied review.

Atkins then petitioned the district court for a writ of

habeas corpus based on his ineffective assistance of

counsel argument. The district court denied the petition,

but granted a certificate of appealability. Atkins v. Super-

intendent, 3:10-cv-085-JVB, 2011 WL 971169 (N.D. Ind.

Mar. 17, 2011). Atkins appealed. Additional facts are

added below as needed.

II. Analysis

On appeal, Atkins argues that his “right to effective

assistance of counsel was violated when counsel know-

ingly raised a false alibi defense during opening state-

ments,” even though counsel “had no witnesses or evi-

dence to support it.” According to Atkins, Ess’s perfor-

mance was so deficient that it prejudiced his defense.

In that same vein, Atkins argues that the Indiana state

courts unreasonably applied federal law when denying

his request for post-conviction relief.

A. Standard of Review

When conducting a habeas review, “a federal court is

limited to deciding whether a conviction violated the

8 No. 11-1891

Constitution, laws, or treaties of the United States.”

Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omit-

ted). “In an appeal from a ruling on a petition for

habeas relief, we review the district court’s findings of

fact for clear error and its rulings on issues of law de

novo.” Denny v. Gudmanson, 252 F.3d 896, 900 (7th Cir.

2001).

When a state court has ruled on the merits of a

habeas claim, our review is circumscribed by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See 28 U.S.C. § 2254(d); Harrington v. Richter,

___ U.S. ___, 131 S.Ct. 770, 783-84, 178 L.Ed.2d 624

(2011). Under AEDPA, we may grant relief only if the

state court’s decision on the merits “was contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States” or “resulted in a decision

that was based on an unreasonable determination of

the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). Plainly

stated, these are demanding standards. This Court has

recognized that federal courts should deny a habeas

corpus petition so long as the state court took the con-

stitutional standard “seriously and produce[d] an

answer within the range of defensible positions.”

Mendiola v. Schomig, 224 F.3d 589, 591-92 (7th Cir. 2000);

see also Simpson v. Battaglia, 458 F.3d 585, 592 (7th Cir.

2006) (“[A] state court’s application of federal constitu-

tional law will be upheld if it is at least minimally con-

sistent with the facts and circumstances of the case.”)

(citation and internal quotations omitted); Harrington,

No. 11-1891 9

131 S.Ct. at 788 (“Federal habeas courts must guard

against the danger of equating unreasonableness under

Strickland with unreasonableness under § 2254(d).”).

When “no state court has squarely addressed the

merits” of a habeas claim, however, we review the

claim under the pre-AEDPA standard of 28 U.S.C. § 2243.

Under this “more generous standard,” George v. Smith,

586 F.3d 479, 484 (7th Cir. 2009), “we review the peti-

tioner’s constitutional claim with deference to the state

court, but ultimately de novo.” Morales v. Johnson, 659

F.3d 588, 599 (7th Cir. 2011) (citations and internal quota-

tions omitted). That being said, “[e]ven under de novo

review, the standard for judging counsel’s representation

is a most deferential one.” Harrington, 131 S.Ct. at 788.

Here, the Indiana state courts analyzed both Strickland

prongs. The trial court addressed both deficient perfor-

mance and prejudice, while the appellate court limited

its analysis to deficient performance. Because both

prongs have been addressed by Indiana state courts, in

one form or another, the deferential standard of review

set out in § 2254(d) applies to both. See 28 U.S.C. § 2254(d)

(deferential standard of review applies to “any claim

that was adjudicated on the merits in State court pro-

ceedings”); cf. Wiggins v. Smith, 539 U.S. 510, 534 (2003)

(“[O]ur review is not circumscribed by a state court

conclusion with respect to prejudice, as neither of the

state courts below reached this prong of the Strickland

analysis.”). We now turn to the merits of Atkins’s inef-

fective assistance of counsel argument.

10 No. 11-1891

B. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, Atkins

must meet both the deficient performance prong and

the prejudice prong articulated in Strickland, 466 U.S. 668.

In other words, Atkins must show that Ess performed

in such a deficient manner that it deprived him of his

guaranteed Sixth Amendment right to counsel, thus

prejudicing his defense to the point that the result of

the trial was rendered unreliable. Id. at 687.

With respect to deficient performance, the petitioner

must show that “counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Id. at 687. This

analysis is based on “prevailing professional norms.” Id.

at 688. Importantly, “[j]udicial scrutiny of counsel’s

performance must be highly deferential,” indulging a

“strong presumption” of effectiveness to combat “the

distorting effects of hindsight.” Id. at 689.

On this point, the Indiana Court of Appeals concluded

that counsel’s decisions were strategic in nature and

reasonable under the circumstances, holding that: “Ess’s

decision to pursue the misidentification defense is a

strategic decision that we will not second-guess.” Atkins

counters that even if Ess’s decision to knowingly lie

to a jury while pursuing an alibi/misidentification

defense falls within the realm of “strategy,” it still was

not “reasonable” under Strickland. According to Atkins,

the unreasonableness of Ess’s decision is bolstered by

his failure to file a statutorily-required notice of alibi

and his failure to tender an alibi-related jury instruction.

No. 11-1891 11

Indeed, “a number of courts have found ineffective as-

sistance of counsel in violation of the Sixth Amendment

where . . . a defendant’s trial counsel fails to file a

timely alibi notice[.]” Clinkscale v. Carter, 375 F.3d 430,

443 (6th Cir. 2004) (collecting cases). In sum, Atkins

argues that the defense strategy was so ill-conceived

and halfhearted that it “totally gutted defense counsel’s

credibility with the jury” and rendered Ess’s counsel

constitutionally deficient.

Here, however, it is important to remain cognizant

that Ess’s performance, viewed as a whole, is what matters.

See Valenzuela v. United States, 261 F.3d 694, 698-99

(7th Cir. 2001) (court must consider reasonableness of

counsel’s conduct “in the context of the case as a whole”).

And although the portions of Ess’s opening statement

about Georgia may have been inappropriate and mis-

guided, we cannot conclude that the Indiana courts

applied Strickland in an unreasonable fashion, par-

ticularly given the strong presumption that counsel’s

performance was effective. Strickland, 466 U.S. at 689.

First, we agree with the Indiana Court of Appeals that

counsel’s decision was a reasonable strategic decision,

and therefore not subject to Monday-morning quarter-

backing. See Johnson v. Thurmer, 624 F.3d 786, 792 (7th

Cir. 2010) (“It is well established that our scrutiny of

counsel’s trial strategy is to be deferential and that we

do not second guess the reasonable tactical decisions of

counsel in assessing whether his performance was defi-

cient.”). As a practical matter, Ess’s strategy options

were exceedingly limited. He advised Atkins that the

12 No. 11-1891

“best” strategy was to argue that he should be acquitted

of attempted murder because he lacked intent to kill.

However, this option was, in Ess’s view, entirely contin-

gent upon Atkins’s testimony. So when Atkins chose

instead to exercise his right not to testify, Ess felt that

this door closed, testifying: “I just . . . didn’t see any

witness giving me the evidence that I needed to get

those instructions in, because they have to be supported

by the record.” Therefore, Ess made a calculated

decision to comply with his client’s desires and pursue

an “all or nothing” approach in the form of an alibi/

misidentification defense. Undoubtedly, Ess’s defense

strategy created a steep hill to climb. But given the cir-

cumstances at hand, we are easily persuaded that

Ess’s decision was a reasonable one.

Second, it is worth noting that although Ess raised

alibi issues during his opening statements, the crux of

his trial strategy related to misidentification: that is,

the circumstances surrounding Yvonne’s identification

of Atkins created reasonable doubt. And on this issue,

the evidence shows that Ess performed his duties ade-

quately. Prior to trial, Ess took Yvonne’s deposition,

reviewed discovery, conceived ways to impeach

Yvonne, filed a motion in limine concerning a

telephone call Atkins had made to Yvonne after the

attack, and formulated a trial strategy. At trial, Ess chal-

lenged Yvonne’s identification of Atkins as her

assailant directly and indirectly in a variety of ways.

For instance, the evidence showed that Yvonne was the

only person who saw Atkins, that she had consumed

five beers on the night of the incident, that her lights

No. 11-1891 13

were off during the incident, that she had prior alterca-

tions with Atkins, and that she had a history of gen-

eralized anxiety disorder.

Viewing Ess’s performance as a whole, we find that

the state courts did not apply Strickland in an unrea-

sonable fashion. All in all, Ess was dealt a tough hand

by a difficult client. Facing an uphill battle from the

start, Ess did what he could to maximize his client’s

chances of acquittal.

Finally, with respect to deficient performance, we

must pause to note that Ess’s decision to lie to the jury

about Atkins’s whereabouts during opening statements,

while troubling, does not meaningfully affect the

Court’s analysis. See Brewer v. Aiken, 935 F.2d 850,

859-60 (7th Cir. 1991) (refusing to find ineffective

assistance of counsel where counsel suborned perjury

about the defendant’s alibi). As Atkins’s brief acknowl-

edges, the rule against presenting false evidence to the

jury is to protect the integrity of the truth-finding

function of courts—not to protect the rights owed to

the defendant. See Nix v. Whiteside, 475 U.S. 157, 174

(1986) (attorney’s responsibility to prevent perjured

testimony is a duty to the court). Although opening

statements are not evidence, see United States v. DeSilva,

505 F.3d 711, 718 (7th Cir. 2007), common sense

suggests that this same reasoning applies with equal

force to the present circumstances.

Because we have determined that Ess’s counsel was

not constitutionally deficient, a prejudice analysis is

more academic than pragmatic. Moreover, courts need

14 No. 11-1891

not address both prongs of Strickland. In fact, Strickland

itself advised courts that “[i]f it is easier to dispose of

[the] claim on the ground of lack of sufficient prejudice, . . .

that course should be followed.” Strickland, 466 U.S. at

697. Here, we cannot say with certitude that the

prejudice prong is the easier analysis. What we can say,

however, is that an analysis of Strickland’s second prong

leads to the same result: the denial of Atkins’s petition.

On appeal, Atkins contends that “[t]here is significant

evidence [that he] would have been convicted of a

lesser included offense but for counsel’s acts and omis-

sions.” Atkins’s entire argument boils down to the fact

that Yvonne’s stab wounds were not particularly

deep. Therefore, a jury could have reasoned that Atkins

lacked the requisite intent to kill. There are, however, a

host of problems with this argument, which is

little more than an invitation for the Court to make

speculation-fueled inferential leaps. Most notably,

Atkins readily admits that he “stuck” Yvonne, and ten

stab wounds—one that was less than one inch from her

heart and another that cut her spleen—are damning

evidence supporting an intent to kill. Moreover, the

fact remains that Atkins chose not to testify, thus making

an intent-based defense essentially untenable. Finally,

Atkins’s argument ignores the fact that the jury was free

to consider the location and depth of the stab wounds

and, from there, infer that Atkins lacked the requisite

intent for an attempted murder charge. On this point,

it is worth highlighting that the jury was instructed on

lesser-included offenses. Overall, the record estab-

lishes that Atkins cannot show a “reasonable probability”

No. 11-1891 15

that, but for Ess’s alleged errors, “the result of the pro-

ceedings would have been different.” Id. at 695.

III. Conclusion

For the foregoing reasons, we A FFIRM the decision of

the district court.

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