FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 17, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
M A RG O PA TSC HEC K,
Petitioner–Appellant,
v.
No. 07-2046
(D.C. No. 05-CV-190-JB)
W ILLIAM SN ODGRASS, W arden,
(D . N.M .)
New M exico W omen’s Correctional
Facility; A TTO RN EY G EN ER AL
FO R TH E STA TE O F N EW M EXICO,
Respondents–Appellees.
OR DER DENYING
CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
M argo Patscheck requests a certificate of appealability (“COA”) to appeal
the district court’s denial of her 28 U.S.C. § 2254 habeas petition. For
substantially the same reasons set forth by the district court, we DENY a COA
and DISM ISS the appeal.
M argo Patscheck and her husband Richard were accused of sexually
abusing her two children from a previous marriage. Initially, Patscheck and her
husband were represented by private counsel, and it was at that point they
allegedly agreed to pursue a joint defense and deny all the allegations against
them. Later, public defender James Bierly was appointed to represent them, and
he was also told they wanted to pursue a joint defense of complete innocence.
Finally, before trial, the district court appointed separate counsel for Patscheck’s
husband, and Bierly continued to represent Patscheck.
After a jury trial, Patscheck was convicted of multiple counts of criminal
sexual penetration, criminal sexual contact with a minor, and conspiracy in
violation of N.M . Stat. §§ 30-9-11, 30-9-13, & 30-28-2. On October 21, 1998,
she was sentenced to 94 ½ years’ imprisonment and given credit for 167 days of
time already served.
Patscheck appealed her conviction and sentence to the N ew M exico C ourt
of Appeals, which vacated two counts for insufficient evidence. On remand for
resentencing, Patscheck received a sentence of 73 ½ years. She filed a petition
for writ of certiorari, which was denied by the New M exico Supreme Court. She
then filed a motion for post-conviction relief in state court, alleging that she had
been denied her rights to due process and effective assistance of counsel. After
the state court denied relief, and the New M exico Supreme Court declined to
grant certiorari, Patscheck filed the present § 2254 petition for habeas relief in
federal district court.
In her federal habeas petition, Patscheck alleges that she was denied her
right to effective assistance of counsel, because both her initial private counsel
and her trial lawyer operated under an actual conflict by representing both her and
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her husband, and because her lawyers failed to investigate and present possible
defenses. She also claims that she was denied due process because the trial judge
was biased against her and her attorney. Finding that no constitutional violations
occurred, the magistrate judge recommended that the petition be denied.
Patscheck filed objections to the magistrate’s report and recommendation. The
district court adopted the majority of the recommendations, but directed the
magistrate judge to reconsider whether Patscheck had exhausted her claim that
counsel incompetently failed to interview her son as a potential witness. Upon
reconsideration, the magistrate judge recommended dismissing this claim as well.
Adopting all of the magistrate’s recommendations, the district court dismissed
Patscheck’s petition and denied a COA. 1 She now seeks a COA from this court to
appeal that decision. 2
Under A EDPA, a petitioner is entitled to habeas relief only if a state court
decision was “contrary to, or involved an unreasonable application of, clearly
1
Because the district court did not act on the issue of a COA within thirty
days of Patscheck’s notice of appeal, the COA is deemed denied. 10th Cir. R.
22.1(C).
2
Because Patscheck was denied a CO A, she may not appeal the district
court’s decision absent a grant of a COA by this court. 28 U.S.C.
§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires Patscheck to show “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations
omitted).
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established Federal law, as determined by the Supreme Court of the United
States” or “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)-(2). A
federal court “may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” W illiams v. Taylor, 529 U.S. 362, 411 (2000). W e review
a district court’s legal analysis of a state court decision de novo. Turrentine v.
M ullin, 390 F.3d 1181, 1189 (10th Cir. 2004).
Patscheck first argues that the state court misapplied federal law in
adjudicating her claims of ineffective assistance of counsel. In order to prevail on
a claim of ineffective assistance of counsel, Patscheck must show that her
attorneys’ performance fell below an objective standard of reasonableness and
that the deficient performance prejudiced her defense. Strickland v. W ashington,
466 U.S. 668, 687 (1984). W e indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance. Rogers
v. United States, 91 F.3d 1388, 1392 (10th Cir. 1996).
W ith respect to her ineffectiveness claim, Patscheck presents two main
arguments: (1) Her trial counsel operated under an actual conflict of interest by
representing both her and her husband; and (2) Counsel failed to investigate and
present a defense based on Battered W omen’s Syndrome. Because Patscheck
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never raised an objection to the multiple representation at trial, she must
demonstrate that an actual conflict of interest adversely affected her lawyer’s
performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Patscheck argues that if she had separate counsel from the beginning, she
would have presented a defense of duress. She claims that her husband forced her
to participate in the assaults on her children, that she never harmed her children
when her husband was not present, and that she was unable to refuse her
husband’s demands because she suffered from Battered W omen’s Syndrome. A
duress defense would clearly conflict with her husband’s interests, and thereby
create an actual conflict for joint counsel. Patscheck, however, never suggested
this defense to her counsel, nor did she ever admit to counsel that she had
comm itted the alleged acts. Instead, she continuously asserted a defense of
complete innocence, as did her husband. In her habeas petition, Patscheck claims
that both her private counsel and Bierly failed to spend adequate time with her
alone to determine if her interests really were aligned with her husband’s.
Although it is possible that counsel may err by failing to meet separately
with each co-defendant, Patscheck has presented no evidence to suggest how
frequently or infrequently she met with her counsel, and what effect, if any, it had
on her representation. 3 In fact, in dismissing her state habeas claim, the New
3
Patscheck alleges that at an evidentiary hearing, Bierly admitted that
although he orally advised the couple about a conflict of interest, he did not
(continued...)
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M exico Court of Appeals held that: (1) invoices from Patscheck’s initial private
attorney show that counsel repeatedly conferred with Patscheck about the
indictment and the status of the case; (2) Richard Patscheck was appointed
separate counsel before trial; (3) evidence presented at trial showed that
Patscheck had committed criminal acts against her children when her husband was
absent and without his direction; and (4) the results of a mental status
examination did not indicate any significant cognitive defects or severe
psychopathology. Patscheck has failed to present any evidence that would lead us
to conclude that these holdings were “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)(2).
Given these factual determinations, Patscheck’s claim regarding a conflict
of interest fails. Because she asserted a defense of innocence consistent with her
husband’s defense, even after she received independent counsel and after she was
convicted, she has not shown an actual conflict of interest. M oreover, because
she had separate representation at trial, any alleged conflict did not exist at trial.
Thus Patscheck has failed to meet her burden of showing specific instances to
support her claim of an actual conflict, United States v. Burney, 756 F.2d 787,
3
(...continued)
investigate it further or obtain a written waiver of the conflict. On appeal,
Patscheck has not provided a transcript of this hearing.
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792 (10th Cir. 1985), and we conclude that the state court’s denial of her claim
was not unreasonable.
W ith respect to her second basis for her ineffective assistance of counsel
claim, Patscheck argues that counsel failed to adequately investigate a defense of
duress, based on her allegedly suffering from Battered W omen’s Syndrome.
Notably, “[t]he reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.”
Strickland, 466 U.S. at 691. In the present case, Patscheck consistently denied
any wrongdoing. In order to prevail on a duress defense, Patscheck would have
had to admit that she committed the acts of abuse and claim that she was coerced
into comm itting them. Because Patscheck never conceded her involvement in the
abuse, the state court’s decision to dismiss her ineffectiveness claim on this point
was not contrary to, or an unreasonable application of, Strickland.
Patscheck raises several other grounds for her ineffectiveness claim,
including counsel’s failure to consult an expert witness on Battered W omen’s
Syndrom. For substantially the same reasons as the district court, we determine
that Patscheck has failed to show that the state court’s determination of these
issues involved an unreasonable interpretation of federal law.
Finally, Patscheck claims that she was denied due process, because the
judge in her case was biased against her and her trial counsel, Bierly. Several
months prior to her trial, the judge stated he intended to recuse himself from
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future cases in which her counsel was involved because of his personal dislike for
Bierly. The judge also said privately that in his view , 95 percent of people
charged with crimes were guilty. He later recanted these statements at a pre-trial
hearing, and suggested that the jury, rather than he, would ultimately decide
Patscheck’s guilt or innocence.
W e apply a presumption of judicial integrity in such cases, and require a
defendant to show that the judge has “a strong, direct interest in the outcome of a
case.” Fero v. Kerby, 39 F.3d 1462, 1479 (10th Cir. 1994) (quotation and citation
omitted). Admittedly, these statements undermine the appearance of impartiality
we expect judges to maintain. Yet “bad appearances alone” are insufficient to
justify disqualification; Patscheck must show “some actual incentive to find one
way or another.” Id. (quotation and citation omitted). The judge’s statements do
not indicate that he had a direct interest in the outcome of the jury trial, nor has
Patscheck shown any actual incentive for the judge to encourage the jury to find
her guilty. Accordingly, we conclude that the state court did not reach a decision
contrary to or involving an unreasonable application of federal law.
W e D EN Y a COA, and DISM ISS the appeal.
Entered by the C ourt
Carlos F. Lucero
Circuit Judge
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