Cone v. Stegall

OPINION

COLE, Circuit Judge.

Petitioner-Appellant Richard Cone appeals the district court’s denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. In December 1993, Cone was convicted by a jury of assault with intent to do great bodily harm less than murder in violation of Mich. Comp. Laws §§ 750.84 and 28.279, and was sentenced to a prison term of 160 to 240 months. The only issue before us on appeal is whether defense counsel’s failure to request a jury instruction on the defense of intoxication resulted in ineffective assistance of counsel in violation of Cone’s Sixth Amendment rights. We hold that it did not. For the reasons that follow, we AFFIRM the judgment of the district court.

BACKGROUND

On the evening of September 11, 1993, Cone and his girlfriend, Serena Buckingham, got into a fight while at Cone’s trailer. Cone had been drinking heavily and assaulted Buckingham with his fists and two butcher knives. After receiving numerous cuts all over her body, Buckingham escaped and called the police.

Cone was charged with assault with intent to murder under Mich. Comp. Laws §§ 750.83 and 28.278. The only issue contested at trial was Cone’s state of intoxication on the night of the assault. The government called Buckingham, who testified that she saw Cone drink two forty-ounce beers while she was with him that evening and that he smelled of alcohol. She testified that she had seen Cone drink large quantities of alcohol in the past without becoming drunk and that although Cone clearly had been drinking that night, he was not so drunk that he was “falling over his feet.” Government witnesses Jerry Derosia and David Mailloux, deputies who responded to the scene that evening, testified that although Cone exhibited signs of intoxication, he had no problem walking and talking, and he responded appropriately to verbal commands and questions. The defense called no witnesses but cross-examined the government witnesses with respect to Cone’s state of intoxication on the evening in question.

The government prepared the jury instructions, which were taken from the Michigan Standard Criminal Jury Instructions. All the charges against Cone were specific intent crimes. The jury was instructed on assault with intent to murder and on the lesser included offenses of assault with intent to commit great bodily harm less than murder, felonious assault, aggravated assault, and assault and battery. Although the standard instruction on the defense of intoxication was not included, defense counsel argued in his closing statement that Cone was too intoxicated to form the specific intent necessary to be convicted of the crimes charged. Cone was acquitted on the charge of assault with intent to murder and was convicted of the lesser included offense of assault with intent to do great bodily harm less than murder. Cone then pleaded guilty as a third felony offender based on two prior convictions for malicious destruction of property.

Following his state post-conviction proceedings, Cone filed a petition for writ of habeas corpus in district court on May 13, 1997, which was dismissed without prejudice by order dated January 30, 1998. Cone filed the instant habeas petition on November 6, 1998, which the district court denied on September 23, 1999. Cone applied to the district court for a certificate of appealability with respect to two issues: (1) ineffective assistance of counsel for failure to request a jury instruction on intoxication, the only defense theory advocated at trial; and (2) trial error for failure to appoint another attorney after Cone expressed dissatisfaction with appointed counsel. The district court granted Cone’s application with respect to the first issue but denied it with respect to the second. Cone appealed the district court’s denial with respect to the second issue, and this court affirmed the denial by order dated February 7, 2000. This timely appeal follows.

DISCUSSION

We review a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Because Cone filed his habeas petition on November 6, 1998, review of the state court’s decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). As amended, 28 U.S.C. § 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in hght of the evidence presented in the State court proceeding.

28 U ,S.C. § 2254(d). In Williams v. Taylor, 529 U.S. 862, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court recently explained that an “unreasonable application” of clearly established federal law established by Supreme Court precedent occurs if “the state court identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case.” See id. at 407-08, 120 S.Ct. 1495. A state court decision can be “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at an opposite result. See Machacek v. Hofbauer, 213 F.3d 947, 952-53 (6th Cir. May 26, 2000) (citing Williams, 529 U .S. at 407, 120 S.Ct. 1495).

Ineffective Assistance of Counsel

The standard by which a Sixth Amendment ineffective assistance of counsel claim is reviewed is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective representation, the claimant must establish that, in fight of all the circumstances, trial counsel’s performance fell below an objective standard of reasonableness and that the resulting prejudice deprived him of a fair trial. See Jones v. United States, 161 F.3d 397, 400 (6th Cir.1998) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). While we review the district court’s findings of fact pertinent to this question for clear error, the performance and prejudice components of the Strickland test are mixed questions of law and fact subject to de novo review. See Sims v. Livesay, 970 F.2d 1575, 1579 (6th Cir.1992) (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052).

The objective standard of reasonableness is a “highly deferential” standard that includes a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. The assistance required is not that of the most astute counsel, but rather, “reasonably effective assistance.” Id. at 687, 104 S.Ct. 2052. The Strickland Court recognized that we must apply “a heavy measure of deference to counsel’s judgments” and that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable .... ” Strickland, 466 U.S. 690-91,104 S.Ct. 2052.

To prove the prejudice prong of an ineffective assistance claim, the claimant must show that but for counsel’s errors, the results of the proceedings would have been different. See Jones, 161 F.3d at 400 (citing Stickland, 466 U.S. at 694, 104 S.Ct. 2052). The Supreme Court stated in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993):

[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him.

Id. at 369-70, 113 S.Ct. 838 (footnote omitted). “The question for reviewing courts is whether counsel’s errors have likely undermined the reliability of, and confidence in, the result.” West v. Seabold, 73 F.3d 81, 84 (6th Cir.1996). Thus, the determinative issue is not whether the claimant’s counsel was ineffective, but whether counsel was “so thoroughly ineffective that defeat was snatched from the jaws of victory.” Id. (citing United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992) (en banc)) (internal quotation marks omitted).

Here, the district court held that defense counsel’s failure to request a jury instruction on intoxication did not fall below the objective standard of reasonableness as enunciated in Strickland. In so finding, the district court noted that defense counsel’s decision to omit an intoxication instruction may well have been a strategic decision insofar as the jury may have felt constrained to consider the defense in context of only those specific questions enumerated in the instruction.1

Cone argues on appeal that there could be no strategic benefit to not requesting an intoxication instruction, and therefore, trial counsel’s failure in this regard fell below an objective standard of reasonableness. Cone argues that the trial court could have provided the standard intoxication instruction while omitting the specific questions enumerated. Cone focuses much of his argument on the following two points: (1) in his opening statement, trial counsel told the jury that they would be instructed on the intoxication defense; and (2) the trial court later told the jury, “If a lawyer says something different about the law, follow what I say.” Cone argues that by virtue of these two statements, the jury drew a negative inference from the omission of an intoxication instruction and thus improperly concluded that it could not consider such a defense. Cone states, “[T]hat cautionary instruction, which the jury is presumed to have followed, coupled with the lack of the intoxication instruction, effectively told the jurors to disregard what the lawyers said about intoxication in their arguments and that there was no defense.”

We disagree. The trial transcript indicates that the court gave an accurate statement of the law in its instructions to the jury with respect to the specific intent necessary for each of the crimes charged. Defense counsel cross-examined the victim and the police officers in an effort to establish that Cone was extremely intoxicated on the evening in question. He then presented the intoxication defense to the jury during his closing statement, pointing to all of the evidence showing that Cone was too intoxicated to form the specific intent necessary for each of the crimes charged. At no point did defense counsel “say something different about the law” such that the court’s admonition would have had any relevance or effect. Rather, defense counsel’s closing statement was consistent with the court’s instructions, and an intoxication instruction would not have provided any additional defense not already available in the instructions read to the jury.

Although we are not convinced that trial counsel’s failure to request a jury instruction on the intoxication defense fell below an objective standard of reasonableness, even if it had, such an omission clearly did not prejudice Cone’s defense within the meaning of Strickland. The record shows that the court properly instructed the jury as to its duty to determine that Cone possessed the specific intent necessary for a finding of guilt. Furthermore, there is ample evidence in the record supporting the jury’s determination that, despite his intoxication on the evening in question, Cone was capable of forming, and did form, the specific intent necessary to be convicted of assault with intent to do great bodily harm less than murder. There simply is nothing in the record to persuade us that the results of the proceedings would have been different had the court provided an intoxication instruction to the jury, or that the lack of such an instruction “undermined the reliability of, and confidence in, the result” of the trial. West v. Seabold, 73 F.3d at 84. Because Cone has not shown that he received ineffective assistance of counsel, he is not entitled to habeas relief on that ground.

CONCLUSION

Accordingly, we AFFIRM the judgment of the district court.

1 Michigan Standard Juiy Instruction states in relevant part:

(1) The defendant says that he could not have specifically intended to [state specific intent of appropriate crime charged] because he was intoxicated with alcohol or drugs.

(2) You must decide whether the defendant’s mind was so overcome by alcohol that he could not have formed that intent. It may help you to think about the following questions:

(a) How did the defendant look at or near the time of the incident? How did he act? What did he say?

(b) How much alcohol or drugs had he used?

(c) Are there any other circumstances surrounding the incident that can help you decide?

Mich. S.J.I.2d § 6.2.