OpenJurist

48 F3d 1232 Sanchez v. Shillinger

Antonio Clyde SANCHEZ, Petitioner-Appellant,
v.
Duane SHILLINGER, in his official capacity as Warden of the
Wyoming State Penitentiary, and the Wyoming
Attorney General, in his official
capacity, Respondents-Appellees,

No. 94-8078.
(D.C. No. 94-CV-108-B)

United States Court of Appeals,
Tenth Circuit.

March 3, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before MOORE, BARRETT and EBEL, Circuit Judges.

1

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Appellant, Antonio C. Sanchez (Sanchez), an inmate of the Wyoming State Penitentiary, appearing pro se,2 appeals from the district court's Order dismissing his 28 U.S.C. 2254 petition for a writ of habeas corpus.

3

Sanchez was convicted, following a jury trial, in the District Court for the Third Judicial District of Wyoming, of attempted first degree murder. He was sentenced to a term of life imprisonment. Sanchez took a direct appeal to the Wyoming Supreme Court, where he contended that he had been denied effective assistance of counsel and that there was insufficient evidence to support his conviction. Sanchez requested an evidentiary hearing, alleging that his trial attorney had denied him his right to testify and that his attorney had failed to conduct adequate pre-trial investigation. The Wyoming Supreme Court remanded the case to the district court for an evidentiary hearing on the issue of ineffective assistance of counsel.

4

In the course of the evidentiary hearing held in the state district court on February 11, 1992, the petitioner and seven witnesses testified on his behalf. The state's one witness was Sanchez's trial co-counsel. The trial court found that: Sanchez had not been denied his right to testify based on credibility determinations; Sanchez's counsel had properly investigated the case; and the testimony elicited from Sanchez's six "character" witnesses would not have been admissible at trial. The Wyoming Supreme Court affirmed Sanchez's conviction, concluding that the absence of Sanchez's testimony was harmless beyond a reasonable doubt. Sanchez v. State, 841 P.2d 85, 88-89 (Wyo.1992). The court characterized the facts of this case as an "unpleasant and miserable combination of marital discord, spouse abuse, and abhorrent violence." Id. at 86.

5

Having exhausted his state remedies, see 28 U.S.C. 2254(b), Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994), Sanchez filed this 2254 action, alleging that he had been denied effective assistance of counsel because he was denied his right to testify at trial and because his counsel failed to investigate the case. The district court granted the Respondents' motion for summary judgment and denied Sanchez's petition for a writ of habeas corpus.

6

On appeal, Sanchez raises the following issues: (1) whether the harmless error analysis is applicable to his claim of violation of his right to testify in his own behalf, (2) whether, assuming that the harmless error analysis does apply to a violation of his right to testify, that violation was harmless in this case, and (3) whether he was denied his right to effective assistance of counsel by his retained attorney's refusal to allow him to testify in his own behalf, failure to conduct any pretrial investigation, failure to call witnesses, and failure to present any defense at all.

7

We review the district court's denial of 2254 relief de novo. Manders v. State of Okla. ex rel. Dep't of Mental Health, 875 F.2d 263, 264 (10th Cir.1989). Summary judgment is appropriate only when the moving party shows that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To avoid summary judgment, the nonmovant must make a showing sufficient to establish an inference of the existence of each element essential to the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Furthermore, a state court's factual findings made in the course of its determination are subject to the deference requirements of 28 U.S.C. 2254(d).

8

We affirm for substantially the reasons set forth in the district court's "Order Granting Respondents' Motion for Summary Judgment and Denying Petitioner's Petition for a Writ of Habeas Corpus" filed June 14, 1994. (R., Vol. I, Tab 10).

9

AFFIRMED.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

Sanchez's request for a certificate of probable cause pursuant to 28 U.S.C. 2253 was denied by the district court on the ground that petitioner had not made a sufficiently substantial showing of the denial of a federal right warranting an appeal. We grant the application for a certificate of probable cause simply to reach the merits