FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 8, 2010
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-1275
(D.C. Nos. 1:07-CV-00803-WYD &
ROD SCHULTZ, 1:00-CR-00481-WYD-2)
(D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Rod Schultz, who worked as a correctional officer at the United States
Penitentiary in Florence, Colorado, was convicted by a federal-court jury of
conspiring to and depriving former inmate Pedro Castillo of his constitutional
rights in violation of 18 U.S.C. §§ 241 and 242. In United States v. LaVallee,
439 F.3d 670 (10th Cir. 2006), we affirmed Mr. Schultz’s conviction and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
sentence, and also affirmed the district court’s denial of his motion for a new
trial. Mr. Schultz then filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255, which was also denied by the district court. We granted
Mr. Schultz a certificate of appealability on the issue of whether he was denied
effective assistance of counsel when his lawyers failed to interview and call
Mr. Castillo as a witness at trial. According to Mr. Schultz, Mr. Castillo would
have testified that Mr. Schultz did not beat him and thus, there was a reasonable
probability he would have been acquitted. Exercising jurisdiction under
28 U.S.C. §§ 1291 and 2255(d), we affirm.
Mr. Schultz was one of several correctional officers charged with crimes
following a multi-year investigation of inmate abuse at the penitentiary. During
the investigation, Mr. Castillo told investigators “that he was beaten by several
correctional officers around the first of April 1996. Though he could not recall
all of the officers’ names who participated in the abuse, he did state that all the
officers who took part [in moving him to another cell] committed the abuse.”
LaVallee, 439 F.3d at 699-700. “He did not identify Mr. Schultz by name. Since
Mr. Schultz was on duty that night, however, the Government began investigating
him.” Id. at 700.
Mr. Castillo did not testify at trial, nor did Mr. Schultz. However, two
correctional officers involved in the crime—Charlotte Gutierrez and Kenneth
Mitchell—did testify pursuant to their agreements to cooperate with the
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government. They told the jury that Mr. Schultz and Mike LaVallee, a
co-defendant, decided to retaliate against Mr. Castillo because he threw a mop
and bucket of water on the floor during an argument with Ms. Gutierrez. To that
end, they implemented a forced-cell move on the trumped-up claim that
Mr. Castillo was trying to harm himself. They took Mr. Castillo to a holding cell,
and while Mr. Mitchell held him against the wall, Messrs. Schultz and LaVallee
punched him several times in the back with their fists. Mr. Mitchell testified that
he could hear the beating continue even after he left the cell. When Ms. Gutierrez
entered the cell, Mr. LaVallee told her to kick Mr. Castillo, which she did. Later,
Mr. Schultz wrote reports identifying himself as one of the officers who moved
Mr. Castillo and who remained in the holding cell until a physician’s assistant
arrived to treat Mr. Castillo’s injuries.
Between February 2001, when Mr. Schultz was indicted, and May 2002,
when Mr. Castillo was released, Mr. Schultz’s lawyers never attempted to
interview Mr. Castillo. Nor did they try to locate him following his release from
Florence and prior to trial, which began in May 2003. Mr. Schultz’s theory of
defense was that the beating never took place. Specifically, in closing argument
his lawyer told the jury that “[n]o beatings took place[,]” R., Supp. Vol. VII at
7115, and that Mr. Castillo’s “scrapes and bruises,” id., came from his “resisting
and fighting and not going[,]” id., to the new cell.
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Shortly after Mr. Schultz was sentenced in November 2003, his brother
hired a private investigator to locate Mr. Castillo, who was found in Miami,
Florida. The investigator showed him a picture of Mr. Schultz, and Mr. Castillo
told him that he did not believe Mr. Schultz was among the guards who beat
him in the April 1996 incident and that Mr. Schultz had treated him with dignity
and respect. Armed with this information, Mr. Schultz filed a motion for a new
trial on the basis of newly discovered evidence. The FBI followed up with its
own interview of Mr. Castillo in June 2004, and obtained an affidavit from
Mr. Castillo in which he acknowledged his “memory of the episode is vague and
unreliable due to the number of officers who beat me and the passage of time.”
Id., Supp. Vol. VIII, Doc. 1552, Attach. B.2, ¶ 13. He further stated that he “was
sure Schultz did not participate in beating me because I was sure he had not been
on duty or present in the SHU at all on April 5, 1996.” Id. at ¶ 9. And despite
what he previously told Mr. Schultz’s investigator, he stated “I can not now say
whether Rod Schultz did or did not participate in beating me on April 5, 1996.”
Id. at ¶ 11.
The district court held an evidentiary hearing on Mr. Schultz’s motion for a
new trial. Mr. Castillo testified at the hearing and gave conflicting accounts
regarding Mr. Schultz’s role, if any, in the beating. The court denied the motion
for several reasons, including the lawyers’ failure to exercise due diligence in
interviewing Mr. Castillo prior to trial. This court affirmed on the ground of lack
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of due diligence in LaVallee, 439 F.3d at 701, but did not address whether
Mr. Castillo’s testimony was “merely impeaching or whether there is a reasonable
probability that it would result in an acquittal[,]” id. at 700.
The district court also denied Mr. Schultz’s later-filed habeas petition,
holding that he failed to satisfy both prongs of the two-prong test of Strickland v.
Washington, 466 U.S. 668 (1984), to establish ineffective assistance of counsel.
The court found that the failure to interview and call Mr. Castillo as a trial
witness fell below an objective standard of reasonableness, thus satisfying the
first prong. However, the court concluded that Mr. Schultz did not demonstrate
prejudice, and thus failed to meet the second prong:
In order to demonstrate prejudice, Schultz must establish that
counsel’s performance rendered the proceedings ‘fundamentally
unfair or unreliable.’ Lockhart v. Fretwell, 506 U.S. 364, 369
(1993). In other words, he ‘must show that there was a “reasonable
probability” that the result would have been different but for the
error.’ Smith v. Workman, 550 F.3d 1258, 1265 (10th Cir. 2008)
(quotation omitted). I find that Schultz has not established that his
counsel’s performance was prejudicial, and thus find that this claim
lacks substantive merit.
R., Vol. I at 805-06.
“An ineffective-assistance-of-counsel claim presents a mixed question of
law and fact. We must accept the district court’s underlying factual findings
unless clearly erroneous, but we review de novo whether counsel’s performance
was legally deficient and whether any deficiencies prejudiced the defendant.”
Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005) (citation,
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quotation marks, and brackets omitted). De novo review means that we make an
independent determination of the issue. United States v. Hall, 984 F.2d 387, 389
(10th Cir. 1993). A factual finding is clearly erroneous only “if it is without
factual support in the record or if the appellate court, after reviewing all the
evidence, is left with a definite and firm conviction that a mistake has been
made.” Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998). “[W]e
view the evidence in the light most favorable to the district court’s ruling and
must uphold any district court finding that is permissible in light of the
evidence[,]” giving “due regard to the district court’s opportunity to judge the
credibility of witnesses.” Id. at 813.
Mr. Schultz argues there was a reasonable probability he would have been
acquitted if Mr. Castillo had testified at trial. We disagree. As noted previously,
the district court held a two-day hearing on Mr. Schultz’s motion for a new trial,
during which Mr. Castillo testified. With respect to the motion under § 2255, the
court found it unnecessary to conduct another hearing; instead it relied on
Mr. Castillo’s previous testimony and incorporated certain relevant factual
findings from its order denying the motion for a new trial. See R., Vol. I at 806.
In its well-reasoned order, the court explained that Mr. Castillo’s testimony was
inconsistent with his prior statements, the trial testimony of Mr. Mitchell and
Ms. Gutierrez, and Mr. Schultz’s own defense. To put it in the vernacular,
Mr. Castillo’s testimony was all over the map, with one notable exception: he said
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he was beaten in early April 1996 by the guards who participated in the
forced-cell move. Mr. Schultz admitted that he was part of this crew, and
according to Mr. Mitchell, Messrs. Schultz and LaVallee punched Mr. Castillo
several times in the back with their fists. But Mr. Schultz never put on any
evidence that he was not among those who beat Mr. Castillo (which would have
undermined his defense that no beating occurred); instead, he denied that any
beating took place. This fact, along with the other inconsistencies, leads us to
conclude there is no reasonable probability that Mr. Castillo’s testimony would
have changed the outcome.
The judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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