Wayne Dale Schell v. Larry Witek, Warden Bill Lockyer, Attorney General, State of California, 1

Citations: 218 F.3d 1017; 2000 Daily Journal DAR 7573; 2000 Cal. Daily Op. Serv. 5675; 2000 U.S. App. LEXIS 15852; 2000 WL 943504Docket: 97-56197

Court: Court of Appeals for the Ninth Circuit; July 11, 2000; Federal Appellate Court

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Wayne Dale Schell appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition by the U.S. District Court for the Central District of California. The district court relied on a magistrate judge's Report and Recommendations without conducting an evidentiary hearing, prompting this appeal. Schell raises three constitutional claims: (1) insufficient evidence for his burglary conviction; (2) the trial court’s failure to address his request for substitute counsel; and (3) ineffective assistance of his trial counsel. 

The Ninth Circuit affirms that there was adequate evidence for a reasonable jury to convict Schell. However, it finds that the trial court erred by not formally investigating the conflict between Schell and his counsel. Notably, Schell's claim regarding his counsel’s failure to consult a fingerprint expert raises potential concerns of ineffective assistance of counsel. Consequently, the court remands the case for an evidentiary hearing to examine (1) the nature of the conflict between Schell and his attorney; (2) whether this conflict deprived him of his Sixth Amendment right to counsel; (3) the adequacy of his counsel's defense; and (4) any resultant prejudice as per Strickland v. Washington. 

The burglary incident involved the entry of Emile Husinger's apartment, where evidence, including a fingerprint matching Schell’s, led to his charges.

A public defender was appointed for Schell, but shortly before the trial, the attorney reported a conflict regarding defense strategy, prompting Schell to request the appointment of substitute counsel through a 'Marsden motion,' as established in California law. The trial court did not address this motion, likely due to Schell's absence, and it was overlooked when his case was reassigned to a different judge. Schell's attorney later informed him that the motion must have been denied since she remained his representative, although there is no documented support for this claim. At trial, Schell was found guilty. He appealed, arguing the trial court erred by not holding a hearing on his motion for substitute counsel. The California Court of Appeal affirmed his conviction, asserting he had waived his motion, and denied his request for a remand for a hearing. Subsequent petitions for a writ of habeas corpus were also denied by state courts without hearings on his claims against his attorney. Schell then filed a federal habeas petition, which a magistrate judge reviewed without an evidentiary hearing, concluding that Schell was not prejudiced by the state’s failure to address his Marsden motion, that sufficient evidence supported his conviction, and that his counsel was effective. The district court denied his petition, and this appeal followed. Under the standard of review for a § 2254 habeas petition, the focus is on whether the petitioner is in custody in violation of federal law, with errors examined under a harmless error standard that requires showing actual prejudice for relief. Schell contends his conviction violated due process due to insufficient evidence, specifically regarding the burglary charge, but this argument was rejected.

Schell argues that a single fingerprint on a glass louver is insufficient to establish his guilt in a crime, referencing the precedent set in *Mikes v. Borg*, where the court noted that fingerprint evidence alone can support a conviction if it is demonstrated that the prints were made during the crime rather than at an earlier time. In *Mikes*, the court required evidence showing that the objects linked to the crime were inaccessible to the defendant before the crime occurred. In Schell's case, his fingerprint was found on the interior of a louvered window that was high off the ground and not near public access, leading the jury to reasonably infer that it was left during the burglary. Schell contends that the louver pane was removable, suggesting his fingerprint could have been placed before it was purchased, but this argument lacks support in the record. Testimony indicated that the windows were cleaned every six months, and there is no evidence that the pane was acquired recently. The court emphasizes that mere speculation cannot undermine a valid conviction, and there must be sufficient evidence for a rational jury to find guilt beyond a reasonable doubt. The prosecution does not need to exclude every possible hypothesis of innocence, and any conflicts in the evidence are presumed to have been resolved in favor of the prosecution. Additionally, Schell's motion for appointment of substitute counsel, based on an alleged 'irreconcilable conflict', raises a Sixth Amendment concern, which is appropriate for consideration in a habeas petition. The state argues that Schell waived this claim by not asserting it in state court before trial, noting that constitutional rights can only be waived if the waiver is shown to be voluntary, knowing, and intelligent.

The State argues that Schell waived his motion for substitute counsel by not reasserting it, referencing cases where waivers occurred due to inaction. However, Schell was unaware that the state court had not addressed his motion, and unlike the case of Holmquist, the judge did not invite him to reargue the matter. The Seventh Circuit's ruling in United States v. Taglia highlighted that a failure to reassert a motion can lead to waiver, but this does not apply to Schell's situation, where the record does not support a claim of waiver. Schell's motion for substitute counsel arose from significant conflict with his appointed attorney, but it went unaddressed, likely due to his absence during court proceedings. When inquiring about the motion, Schell was misled by his attorney into believing it had been denied. The court concluded that Schell did not knowingly waive his motion, emphasizing the unfair burden that would place on defendants reliant on appointed counsel. 

The review focused on the constitutional implications of a state court's handling of motions for substitute counsel due to irreconcilable conflicts, correcting previous standards that relied on an abuse of discretion test. The court clarified that its review in a § 2254 proceeding centers on whether a petitioner is held in custody in violation of constitutional rights, rather than strictly assessing the state court's judgment. It overruled earlier cases that conflicted with this understanding. The court underscored that forcing a defendant to trial with an attorney amid irreconcilable conflict deprives him of effective counsel, reinforcing that the Sixth Amendment mandates a thorough inquiry into such motions, with resolutions based on the merits before trial proceeds.

Determining the remedy for the trial court's failure to process Schell's motion for substitute counsel hinges on whether this failure violated Schell's constitutional rights. Schell contends that the state court's oversight was prejudicial per se, arguing that he deserves relief without demonstrating harm, citing precedents in Bland and Crandell. However, these cases are not directly applicable. In Bland, the court recognized a qualified right to choose counsel for defendants who can afford it, which does not extend to indigent defendants like Schell. Crandell involved a situation where the defendant was forced to choose between incompetent counsel and no counsel, constituting a denial of the right to counsel, unlike Schell's situation where the issue revolves around the effectiveness of representation due to a conflict with his attorney.

The core question is whether the conflict between Schell and his attorney hindered effective assistance of counsel. If the conflict stemmed from Schell's own actions or involved decisions within the attorney's discretion, it may not constitute a violation of his rights under the Sixth Amendment. The federal courts must assess whether the conflict led to a complete breakdown in communication or significant issues that impaired the attorney-client relationship. 

Schell's claims regarding a hostile relationship with his public defender, particularly concerning critical evidence in his case and her alleged refusal to investigate or defend him unless he accepted a plea bargain, warrant further examination. Such allegations are sufficient to grant him an evidentiary hearing under 28 U.S.C. § 2254, particularly since they involve facts that occurred outside the courtroom and have not been thoroughly evaluated by a state court. Evidentiary hearings are mandated when a petitioner's claims, if substantiated, would justify relief.

An evidentiary hearing is deemed necessary to ascertain whether a non-structural constitutional error was consequential in the case involving Schell. The hearing aims to explore the extent of the conflict between Schell and his counsel, particularly since the state trial court did not adequately investigate the deterioration of their relationship or Schell's role in it. No court has previously examined the merits of Schell's serious allegations, thus his claims must be accepted at this stage. The case is reversed and remanded for the district court to determine if the conflict amounted to a Sixth Amendment violation, wherein a serious conflict would negate the need for further proof of prejudice, presuming his trial was unfair. Conversely, if the conflict did not constitute a constructive denial of counsel, Schell would need to demonstrate prejudice.

Additionally, Schell requests an evidentiary hearing to evaluate his counsel's effectiveness regarding his defense. To establish ineffective assistance of counsel, he must show that his attorney's performance was objectively unreasonable and that this inadequacy prejudiced his defense. Schell contends that his attorney delayed soliciting expert testimony regarding fingerprint evidence, which was crucial in linking him to the crime. The importance of this evidence was emphasized during the defense's closing argument. The court acknowledges that failing to seek a fingerprint expert's opinion may indeed constitute ineffective assistance of counsel, given that the only evidence against Schell was a partial fingerprint.

A partial thumbprint was presented as evidence to link Mr. Schell to a crime, but the credibility of this evidence is questioned due to its incompleteness and the reliance on a witness's testimony. The witness noted more than ten points of similarity but only detailed ten, which raises concerns since a fingerprint typically has between 50 to 150 characteristics. The witness acknowledged that even one point of dissimilarity could negate a match, yet he claimed certainty about the match despite the missing print details. This situation highlights the concept of reasonable doubt, particularly given the multiple dissimilarities likely present in the unexamined portion of the print.

The prosecutor countered the defense's arguments by emphasizing that the defense's interpretations were not evidence, asserting that the prosecution's expert had the necessary training and experience to confidently declare a match. The prosecution maintains the burden of proof, suggesting that the defense's failure to present an expert witness undermines their claims. There is uncertainty about whether Mr. Schell's attorney consulted a fingerprint expert or adequately prepared for trial, leading to implications about the attorney's effectiveness without conclusive evidence.

The court remands the case to the district court for an evidentiary hearing to assess whether Schell's trial counsel acted competently and, if not, whether any deficiencies prejudiced Schell's trial. The court emphasizes the importance of resolving this matter promptly, even if the trial court finds that Schell's rights under the Sixth Amendment were violated. The denial of the petition is reversed, and the case is affirmed in part, reversed in part, and remanded. Additionally, it notes that Bill Lockyer replaces Daniel E. Lungren as the Attorney General for California. Schell's claim of indigency and request for counsel was denied by the magistrate judge. The usual remedy for not conducting a Marsden hearing is to remand for a post-trial hearing, allowing the trial court to address any errors. The court acknowledges that Schell's appeal is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA) rules, granting a certificate of appealability (COA) based on a substantial showing of a constitutional right denial. The state did not raise procedural default or adequate independent state grounds against Schell's petition. The court clarifies that the state court's inaction on Schell's motion indicates a failure to exercise discretion. Additionally, while the state contends Schell must claim the fingerprint was not his, the court finds that he at least argues the fingerprint's clarity was insufficient to identify him as the perpetrator in the burglary.