Ellis v. Hargett
302 F.3d 1182, 2002 U.S. App. LEXIS 18137, 2002 WL 2005892 (2002)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An appellate counsel's failure to raise a particular legal argument does not constitute ineffective assistance of counsel if the argument's chances of success were doubtful under existing precedent. Such a strategic omission does not establish the 'cause' necessary to excuse a state procedural default in a federal habeas corpus proceeding.
Facts:
- On May 8, 1985, Marshall Ellis drove a companion to a methamphetamine deal in a restaurant parking lot in Woodward, Oklahoma.
- The other parties to the transaction, including several undercover police officers, arrived in a separate van.
- After the drug deal concluded, undercover Agent William Stewart emerged from the van holding a pistol and approached Ellis's car.
- Witness accounts were conflicting as to whether Stewart identified himself as a police officer before displaying his weapon.
- Ellis, from inside his car, shot and killed Stewart with a sawed-off shotgun.
- Other officers then opened fire on Ellis's car, injuring his companion.
- Ellis fired his shotgun again, wounding Detective Mark Chumley, before fleeing the scene.
- Ellis was apprehended by law enforcement shortly thereafter.
Procedural Posture:
- Marshall Ellis was tried in Oklahoma state court on charges of first-degree murder and shooting with intent to kill.
- At trial, Ellis claimed self-defense; the jury was instructed on self-defense and the lesser included offense of heat of passion manslaughter.
- The jury convicted Ellis, and he was sentenced to life imprisonment.
- Ellis appealed his conviction to the Oklahoma Court of Criminal Appeals, which affirmed the conviction.
- The U.S. Supreme Court granted certiorari, vacated the state court's judgment, and remanded for reconsideration on a double jeopardy issue.
- On remand, the Oklahoma Court of Criminal Appeals reaffirmed its prior decision.
- Ellis then sought state post-conviction relief, raising for the first time a due process claim regarding the heat of passion jury instructions. The state court denied relief, holding the claim was procedurally barred because it was not raised on direct appeal.
- Ellis filed a petition for a writ of habeas corpus in federal district court, which was denied.
- Ellis then appealed the district court's denial to the U.S. Court of Appeals for the Tenth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an appellate counsel's failure to raise a due process challenge to jury instructions on appeal constitute ineffective assistance of counsel, thereby providing cause to overcome a state procedural default, where the defendant's primary defense was self-defense and the omitted claim's success was doubtful under existing precedent?
Opinions:
Majority - Gibson, John R.
No. An appellate counsel's failure to raise this specific due process challenge does not constitute ineffective assistance of counsel because the claim was not clearly stronger than the arguments counsel did raise, and therefore Ellis cannot show cause to overcome his state procedural default. The court reasoned that to overcome a procedural default, a petitioner must demonstrate cause and prejudice. Ellis argues that ineffective assistance of his appellate counsel serves as cause. However, to prove ineffective assistance under the Strickland standard, a petitioner must show both deficient performance and resulting prejudice. The court’s review is further constrained by AEDPA, which requires deference to the state court’s decision unless it was an unreasonable application of federal law. Analyzing the omitted claim, the court found that case law at the time of Ellis’s appeal, including Davis v. Maynard, cast serious doubt on whether a specific instruction on the prosecution's burden to disprove heat of passion was required when the defendant's sole defense was self-defense. Since the omitted argument was weak, it was not objectively unreasonable for appellate counsel to omit it in favor of other, stronger arguments. Therefore, the state court's rejection of the ineffective assistance claim was reasonable, and Ellis cannot overcome the procedural bar to have his due process claim heard on the merits.
Analysis:
This case illustrates the significant procedural hurdles faced by petitioners in federal habeas corpus proceedings, particularly the doctrines of procedural default and the deferential AEDPA standard of review. It reinforces the principle from Strickland and Jones v. Barnes that appellate counsel is not required to raise every non-frivolous claim, but rather can and should use professional judgment to select the strongest arguments. The decision demonstrates that a federal court can deny habeas relief without reaching the merits of an underlying constitutional claim if the petitioner cannot first excuse their failure to properly raise that claim in state court. This underscores the critical importance of exhausting all claims on direct appeal in state court.
