September 9, 1993
DAVID L. STRATMON, JR., APPELLANT
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; (Hon. Tim Murphy, Trial Judge), (Hon. Stephen G. Milliken, Post-Trial Hearing Judge)
Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant was convicted of assault with intent to kill while armed and assault with intent to rape while armed, both offenses in violation of D.C. Code §§ 22-501 and 22-3202 (1989). He appealed from his conviction, raising three claims of error, but the judgment of conviction was affirmed by this court in an unpublished memorandum opinion and judgment. Stratmon v. United States, No. 85-561 (D.C. June 16, 1988). After a petition for rehearing and rehearing en banc was denied, this court issued its mandate on September 27, 1988.
On March 25, 1992, after the filing of several pleadings, this court entered an order granting appellant's motion to recall the mandate in order "to consider more fully and then decide" whether appellant had been denied his Sixth Amendment right to the effective assistance of appellate counsel. We further permitted the parties to submit supplemental briefs discussing the impact of this court's decision in Scott v. United States, 559 A.2d 745 (D.C. 1989) (en banc) (" Scott II "), on the instant case. Now, after additional argument, we conclude that appellant's counsel on appeal was not ineffective; hence we direct the clerk of the court to reissue the mandate.
Appellant Stratmon was convicted after a jury trial in the Superior Court before Judge Murphy. While the trial was going on, Judge Murphy was engaged in employment Discussions with the United States Department of Justice (DOJ). Judge Murphy and representatives of DOJ had conferred in October and December 1984 about his possible appointment as Assistant Director for Debt Collection in the Executive Office for United States Attorneys. Following these two meetings, but before a formal expression of his interest in being considered for the job, Judge Murphy heard argument and decided pre-trial motions in appellant's case. On December 24, 1984, Judge Murphy formally asked DOJ to consider him for the position. Appellant's trial began on January 16 and ended on January 18, 1985. Judge Murphy was offered the DOJ job on February 6, 1985, and two days later he informed both the Chief Judge of the Superior Court and the District of Columbia Commission on Judicial Disabilities and Tenure that he had decided to accept the offer and retire from the bench by the middle of April. The Judge never disclosed the existence of these job negotiations to appellant, appellant's trial counsel, or the Assistant United States Attorney prosecuting the case.
Appellant was sentenced by Judge Murphy on April 8, 1985, to fifteen years to life on each count. The sentences were ordered to run concurrently with each other, but consecutively to any other sentence then being served. An additional term of eighteen to fifty-four months was added to appellant's sentence in accordance with D.C. Code § 23-1328 (a)(1) (1989), which authorizes such enhancement when a crime is committed while the defendant is on pre-trial release.
After appellant was convicted, his trial counsel filed a notice of appeal, but soon thereafter he withdrew from the case. This court then appointed James Frick, Esquire, to represent appellant on appeal, but Mr. Frick withdrew as well before filing a brief. We then appointed Calvin Steinmetz, Esquire, to represent appellant on appeal. Mr. Steinmetz, who was unaware that Judge Murphy had been engaged in employment negotiations with DOJ during his client's trial, filed a brief raising three claims of error. We heard oral argument on April 26, 1988, and on June 16, 1988, we issued our unpublished opinion rejecting all three arguments *fn1 and affirming the judgment of conviction. Mr. Steinmetz filed a petition for rehearing and rehearing en banc on August 3. That petition was denied on September 19, and the mandate was issued on September 27, 1988. *fn2
Meanwhile, on December 4, 1987, a panel of this court issued its decision in Scott v. United States, 536 A.2d 1040 (D.C. 1987) (" Scott I "). The Scott case involved a challenge to the conviction of Monroe Scott based on the same underlying facts, viz., Judge Murphy's negotiations for employment with DOJ while presiding over Mr. Scott's trial. *fn3 In Scott I the court considered whether Judge Murphy had violated the Code of Judicial Conduct ("the Code") by simultaneously negotiating for employment with DOJ while presiding over a criminal trial being prosecuted by an office which was part of DOJ. *fn4 A majority of the court assumed, without expressly holding, that Judge Murphy's conduct violated Canon 3 (C)(1) of the Code, *fn5 id. at 1045, but held that the violation was harmless. Id. at 1049. *fn6 One Judge Dissented, concluding that the violation was not harmless and that Scott was entitled to a new trial. Id. at 1051-1056 (Rogers, J., Dissenting).
The panel opinion in Scott I [was vacated on June 20, 1988, when the court agreed to rehear the case en banc. Scott v. United States, 543 A.2d 346 (D.C. 1988). Oral argument before the full court took place on October 3, 1988, and our en banc decision in Scott II was issued on May 10, 1989.
On rehearing en banc the court unanimously reversed Scott's conviction and remanded the case for a new trial. *fn7 We first ruled that Judge Murphy's conduct did in fact violate Canon 3 (C)(1). Scott II, supra, 559 A.2d at 750. Next, we rejected use of the traditional harmless error test to assess the impact of the Judge's conduct, concluding that the traditional test could not accurately determine whether Mr. Scott had been fairly convicted and sentenced because that test presumes the existence of an impartial Judge. See Rose v. Clark, 478 U.S. 570, 578, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986). In addition, we held that application of such a test under the circumstances was inconsistent with the goal of Canon 3 (C)(1), which is to prevent even the appearance of judicial impropriety. We adopted instead the "special harmless error" test formulated by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988). *fn8 This test requires a reviewing court to consider three "risks" which might result from denying relief: "the risk of inJustice to the parties in the particular case, the risk that the denial of relief will produce inJustice in other cases, and the risk of undermining the public's confidence in the judicial process." Id. at 864. Applying this test, see Scott II, supra, 559 A.2d at 753-755, we held that Mr. Scott was entitled to a new trial, not merely a resentencing, "in order to assure the continued public confidence in the integrity of the judiciary." Id. at 756 (footnote omitted). We have followed Scott II and Liljeberg in subsequent cases. See Foster v. United States, 615 A.2d 213, 220-222 (D.C. 1992) (applying Liljeberg to ex parte communication between Judge and parole commission); In re J.A., 601 A.2d 69, 78 (D.C. 1991) (applying Liljeberg to courtroom conduct reflecting bias); Belton v. United States, 581 A.2d 1205, 1212-1215 (D.C. 1990) (applying Liljeberg to ex parte communication between Judge and third parties, after trial but before sentencing, about defendant's criminal activities); see also In re Continental Airlines Corp., 901 F.2d 1259, 1261-1262 (5th Cir. 1990) (applying Liljeberg to case in which Judge solicited employment with firm appearing before him); Parker v. Connors Steel Co., 855 F.2d 1510, 1523 (11th Cir. 1988) (applying Liljeberg to case in which Judge's law clerk was related to partner in firm appearing before that Judge), cert. denied, 490 U.S. 1066, 104 L. Ed. 2d 631, 109 S. Ct. 2066 (1989).
II. THE PRESENT STATUS OF THE CASE
Under this court's Rule 41 (c), a motion to recall the mandate will be granted when a claim of ineffective assistance of appellate counsel is "found by court to have sufficient merit" to justify the recall. Watson v. United States, 536 A.2d 1056, 1061 (D.C. 1987) (en banc) (emphasis deleted), cert denied, 486 U.S. 1010, 100 L. Ed. 2d 203, 108 S. Ct. 1740 (1988); see Griffin v. United States, 598 A.2d 1174, 1175-1176 (D.C. 1991). If this requirement is met, we will recall the mandate and reopen the appeal "in order to fully explore and then decide whether there was ineffective assistance . . . ." Watson, supra, 536 A.2d at 1061; see Head v. United States, 626 A.2d 1382, 1383-1384 (D.C. 1993).
On March 24, 1989, represented by new counsel, appellant filed a motion in this court to recall the mandate. *fn9 The motion argued that the failure of his prior appellate counsel to raise the issue which had been raised in the Scott case constituted ineffective assistance and required that his convictions be reversed. After several additional pleadings and memoranda were filed by both parties, we ordered an evidentiary hearing by the trial court and directed it to make factual findings on three issues: (1) whether and when appellant's trial counsel was made aware of Judge Murphy's employment negotiations with DOJ; (2) how appellate counsel determined which issues to raise on appeal, and why he failed to raise the issue of Judge Murphy's apparent conflict of interest; and (3) whether the government would be prejudiced in its ability to reconstruct its case for retrial. After an evidentiary hearing, Judge Milliken of the Superior Court wrote detailed findings of fact and returned the case to us. We then entered an order concluding that "appellant's claim of ineffective assistance has sufficient merit to warrant recalling the mandate in order to consider more fully and then decide the issue," citing Watson v. United States, supra. We granted the government's request for leave to file a supplemental brief, and then heard oral argument on the ineffective assistance claim.
At the hearing before Judge Milliken, three witnesses testified: Joseph Hillegas, appellant's trial counsel; Calvin Steinmetz, his previous appellate counsel; and William Currier, the former Assistant United States Attorney who prosecuted the case. We summarize Judge Milliken's findings of fact on the three issues presented.
A. Trial counsel's awareness of Judge Murphy's employment negotiations with DOJ
Mr. Hillegas was appointed as appellant's trial counsel in May 1984 and continued to represent him through sentencing on April 8, 1985. Judge Milliken found that Mr. Hillegas did not become aware of the Judge's employment Discussions with DOJ either before or during the trial. The findings note that Mr. Hillegas was interviewed by a Washington Post reporter in February 1985 (i.e., after appellant's trial, but before sentencing). He expressed regret about the Judge's pending retirement and described Judge Murphy as "an extremely fair and efficient trial Judge." *fn10 Mr. Hillegas did not ask Judge Murphy to recuse himself from appellant's sentencing merely because the Judge was going to DOJ "to collect student loans." According to Judge Milliken, Hillegas "'did not connect the potential of any impropriety' in [Judge Murphy's] taking that position with the defendant's sentencing." Mr. Hillegas did not recall telling his client that the Judge was leaving the bench to take a position with DOJ.
Judge Milliken concluded that Mr. Hillegas learned of Judge Murphy's employment negotiations with DOJ at some point between the Conclusion of appellant's trial (January 18) and the date of his interview by the Washington Post (approximately February 8).
B. How appellate counsel determined which issues to raise on appeal
Calvin Steinmetz was appointed to represent appellant on appeal in May 1987, i.e., two years after appellant's sentencing and the Washington Post article publicizing Judge Murphy's retirement from the bench. *fn11 Mr. Steinmetz reviewed the case file and met with his predecessor counsel, Mr. Frick, to consider possible grounds for an appeal. At that time, Mr. Steinmetz testified, he was unaware of Judge Murphy's potential conflict of interest. He then asked an associate to review the trial transcript in order to "isolate issues." After discussing the case with his associate, reviewing her notes, and personally reading the trial transcript, he decided to challenge appellant's convictions on three grounds (see note 1, (supra) ). He then met with appellant and sought his input on the appeal.
The decision in Scott I was issued in December 1987, after Mr. Steinmetz had filed his brief. Steinmetz testified that he read the Scott I opinion "some time thereafter -- most likely before the Stratmon oral argument [on April 26, 1988], and certainly before May 10, 1989, when [this court] issued its en banc decision in [ Scott II ]." He recalled interpreting the panel opinion as concluding that Judge Murphy's conduct violated Canon 3 (C)(1), but that the violation was harmless error. Judge Milliken found that Mr. Steinmetz was "unsure" whether, while reading the opinion in Scott I, "he actually considered but rejected raising Judge Murphy's possible conflict of interest, or whether he simply did not recognize the similarities between the defendant's case and that of Monroe Scott."
Judge Milliken concluded that the evidence did not "permit a clear finding" as to when Mr. Steinmetz read the opinion in Scott I, and that none of appellant's several attorneys except the one who represents him now "appreciated the need to raise the issue of judicial impropriety."
C. Whether the government would be prejudiced if appellant's case had to be retried
William Currier was the Assistant United States Attorney who investigated, indicted, and presented the government's case against appellant at trial. He testified that the government's two "main witnesses" at trial were the victim, Ms. C., and the witness who testified about the prior assault, Ms. B. Mr. Currier said that this case stood out in his mind because the preparation of these witnesses had been "exceedingly difficult," a fact which he attributed to the emotional state of each witness. Ms. B. was "inconsolable for some minutes" whenever appellant's attack on her was discussed, and at trial she testified with "extreme difficulty and obvious emotional trauma." Ms. C., on the other hand, was "very hostile" and was "extremely angry with the police department because of the way the incident unfolded and the lack of help she got after she had been assaulted." Mr. Currier testified that it took a great deal of effort and the assistance of a psychologist to establish a trust relationship with her so that she would cooperate in appellant's prosecution.
Despite these problems, Judge Milliken concluded that a retrial would not unduly prejudice the government because both of the principal witnesses were still available, as was the relevant physical evidence.
III. EFFECTIVENESS OF COUNSEL
A. The applicable legal standard
A convicted defendant claiming ineffective assistance of counsel must make a two-part showing. See Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). First, he or she must establish that "the attorney's performance 'fell below an objective standard of reasonableness.'" Watson v. United States, supra, 536 A.2d at 1065 (quoting Strickland, 466 U.S. at 688). That is, there must be a showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687; see also Engle v. Isaac, 456 U.S. 107, 134, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982) (defendant entitled to a "fair trial and a competent attorney"); Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980) (defendant entitled to "adequate legal assistance"); McMann v. Richardson, 397 U.S. 759, 770, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970) (defendant entitled to "reasonably competent counsel"). Second, the defendant must demonstrate prejudice; i.e., he or she "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694; see United States v. Cronic, 466 U.S. 648, 655-657, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984); Cuyler, supra, 446 U.S. at 343.
The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the cannot be relied upon as having produced a just result.
Strickland, supra, 466 U.S. at 686, quoted in Watson, supra, 536 A.2d at 1065.
In applying Strickland we must keep in mind two additional principles. First, our "scrutiny of counsel's performance must be highly deferential" and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, supra, 466 U.S. at 689. Such deference is required because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. Second, as the government correctly argues, the analysis of counsel's performance typically must be comprehensive, i.e., not narrowly limited to a review of counsel's failings. See Kimmelman v. Morrison, 477 U.S. 365, 386, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986) (counsel's "overall performance throughout the case" is the proper focus of judicial review); Watson, supra, 536 A.2d at 1062 n.17. In Kimmelman, for example, the Court held that counsel had been ineffective only after finding that counsel's errors were "pervasive." 477 U.S. at 386; see also, e.g., Quartararo v. Fogg, 679 F. Supp. 212, 248 (E.D.N.Y.) (holding that combination of counsel's failure to make opening statement, failure to object to inadmissible and damaging evidence, failure to object to prosecutor's grossly inflammatory summation, and an inadequate summation of his own added up to ineffective assistance), aff'd without opinion, 849 F.2d 1467 (2d Cir. 1988). *fn12
Appellant predicates his claim that his prior appellate counsel was ineffective solely on one asserted lapse, namely, counsel's failure to raise Judge Murphy's apparent conflict of interest either at oral argument or in his petition for rehearing en banc. *fn13 From cases such as Kimmelman, however, we conclude that the failure to raise a particular issue will not, as a general rule, constitute deficient performance under Strickland unless it is "sufficiently egregious and prejudicial." Murray v. Carrier, 477 U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) (citations omitted); see Smith v. Murray, 477 U.S. 527, 535-536, 91 L. Ed. 2d 434, 106 S. Ct. 2661 (1986) (counsel's tactical decision not to raise one argument on appeal does not make his representation deficient under Strickland); Evitts v. Lucey, 469 U.S. 387, 394, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985) (counsel "need not advance every argument, regardless of merit, urged by the appellant" (emphasis in original)). We must therefore consider whether Mr. Steinmetz's failure to raise the appearance-of-partiality issue was "sufficiently egregious and prejudicial" to require us to hold, under the first prong of Strickland, that his performance fell below an objective standard of reasonableness. We divide our inquiry into two parts, examining first the charge of ineffectiveness on the direct appeal, and next the charge of ineffectiveness on the petition for rehearing and rehearing en banc.
B. Effectiveness of counsel on direct appeal
Judge Milliken's findings do not tell us whether Mr. Steinmetz's failure to raise the conflict of interest issue was intentional or inadvertent. In either event, however, we cannot conclude that it resulted in a violation of appellant's Sixth Amendment right to the effective assistance of counsel.
Under the law at the time the appeal was argued, namely Scott I, Mr. Steinmetz could have reasonably decided as a tactical matter not to raise the issue of Judge Murphy's conflict of interest. Scott I, after all, at best entitled his client to a remand for resentencing. As appellant's present counsel acknowledged at oral argument, appellant did not receive the maximum sentence from Judge Murphy for his crimes, so that the possibility of a resentencing carried with it a risk that he would receive a more severe sentence from a different Judge. *fn14 But see North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Moreover, appellant has not rebutted the presumption that this was a strategic decision, although it is his burden under Strickland to do so. We conclude, therefore, that if the decision not to raise the conflict of interest issue was tactical, it cannot be characterized as sufficiently egregious as to constitute ineffective assistance. See, e.g., Taylor v. United States, 565 A.2d 992, 993-994 (D.C. 1989) (defendant who was erroneously advised as to risk of resentencing did not receive ineffective assistance because his attorney could reasonably "believe, given the absence of binding law in this jurisdiction, that it was best for appellant not to appeal" (footnote omitted)).
On the other hand, if the failure to raise the conflict of interest issue was inadvertent, the result would be no different. There is no reason to believe that the opinion in Scott I raised any red flags for Mr. Steinmetz. Scott I was decided after he had filed his brief, had no relevance to the three issues he had raised in his brief, and resulted only in a finding of harmless error. In actuality, then, the central "failing" of appellate counsel was his failure to recognize that Scott's trial had taken place at roughly the same time as that of his client and that the same Judge had presided over both trials. Moreover, the only person who could have made the connection between Scott and this case -- appellant's trial counsel, who knew about Judge Murphy's dealings with DOJ before appellant was sentenced -- did not mention the matter to Mr. Steinmetz, apparently because (as Judge Milliken found) trial counsel saw no "potential of any impropriety" connecting the Judge's activities with appellant's sentencing. Thus we find it altogether unremarkable that Mr. Steinmetz failed to raise the Scott issue at oral argument in April 1988.
Similarly, it cannot be said that Mr. Steinmetz had constructive notice of a possible claim under Scott I based on manifestations of bias in the trial record. Appellant's trial counsel testified before Judge Milliken that he saw no evidence of bias in Judge Murphy's handling of the case. Further, the trial record was independently reviewed by Mr. Steinmetz and by his associate, and neither of them saw any signs of judicial bias there. *fn15 Finally, before filing his brief, Mr. Steinmetz met with appellant to discuss the substance of the brief and to solicit information about other possible avenues to pursue on appeal. Appellant never provided any information that would have led Mr. Steinmetz to consider a Scott claim. *fn16
The Constitution mandates competent counsel, not error-free counsel, and the Sixth Amendment is not violated simply because all possible claims of error are not raised on appeal. See, e.g., Engle v. Isaac, supra, 456 U.S. at 133-134. We cannot say that counsel's conduct "so undermined the proper functioning of the adversarial process that the cannot be relied upon as having produced a just result." Strickland, supra, 466 U.S. at 686. We agree with the government that the Constitution guarantees only the effective assistance of counsel, *fn17 not the kind of "superhuman representation" that appellant now claims he was entitled to receive.
C. Effectiveness of counsel on petition for rehearing and rehearing en banc
Whether Mr. Steinmetz's failure to raise the Scott issue in his petition for rehearing and rehearing en banc amounted to ineffective assistance is an easier question to answer in the negative. Mr. Steinmetz filed the petition on August 3, 1988, more than six weeks after the panel decision in Scott I had been vacated and this court had agreed to rehear the Scott case en banc. Appellant argues that his counsel should have asked the court to stay the instant appeal pending the en banc decision in Scott. This argument is premised on two assumptions: first, that the granting of rehearing indicated that a certain result was likely (e.g., that the vacated ruling of the panel would be overturned by the en banc court), and second, that counsel had an obligation to anticipate or predict such a change in the law.
Even if we assume that the grant of rehearing en banc in Scott was a signal that the court was considering a change in the law, it is well established that the failure to anticipate a change in the law is not ineffective assistance of counsel. See, e.g., Johnson v. Armontrout, 923 F.2d 107, 108 & n.3 (8th Cir.), cert. denied, 116 L. Ed. 2d 75, 112 S. Ct. 106 (1991); Horne v. Trickey, 895 F.2d 497, 500 (8th Cir. 1990); Knight v. Dugger, 863 F.2d 705, 733 (11th Cir. 1988); Elledge v. Dugger, 823 F.2d 1439, 1443 ("Reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop"), modified in part on other grounds, 833 F.2d 250 (11th Cir. 1987), cert. denied, 485 U.S. 1014, 99 L.Ed. 2d 715, 108 S. Ct. 1487 (1988). Moreover, it is by no means certain that the court would even have entertained a new argument made for the first time in a petition for rehearing en banc. See Keating v. Federal Energy Regulatory Commission, 288 U.S. App. D.C. 344, 353-354, 927 F.2d 616, 625-626 (1991) (refusing to consider argument made for the first time in petition for rehearing, and holding that "the argument is waived"). But even assuming that these hurdles can be overcome, we are satisfied that counsel in this case was not ineffective for failing to raise the Scott issue in a petition for rehearing en banc for the same reasons, already discussed, that he was not ineffective for failing to raise it in his brief or at oral argument. *fn18
We hold that appellant's appointed counsel, Calvin Steinmetz, Esquire, did not render ineffective assistance either on appeal or in connection with the petition for rehearing and rehearing en banc which he filed on appellant's behalf, and that appellant's Sixth Amendment right to counsel was not infringed. We therefore direct the clerk of the court to reissue the mandate in this case in accordance with Rule 41 (a) of the Rules of this court.
It is so ordered.