Opinion
No. C00-3037-MWB
December 22, 2000
REPORT AND RECOMMENDATION I. INTRODUCTION
This matter is before the court on the motion (Doc. No. 5) of attorney Martha McMinn (the "Movant") to withdraw from representing the petitioner Christopher Gitman ("Oltman") in this case. The Movant files her motion pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 13 L.Ed.2d 493 (1967), and its progeny, thereby seeking to withdraw on the basis that after a full and complete investigation, she has found Oltman's case to be frivolous. The Movant states she "has conducted a thorough review . . . and cannot find any evidence in the record which would arguably support Oltman's petition." (Doc. No. 5, at 1) Attached to the motion is a copy of "the file from the second postconviction relief action filed by Mr. Oltman in Franklin County, Iowa." ( Id.)
Anders stands for the proposition that when counsel finds a defendant's case "to be wholly frivolous, after a conscientious examination of it, [counsel] should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." 386 U.S. at 744, 87 S.Ct. at 1400. The defendant may respond, and then if the court, on its own review of the record, agrees the case is wholly frivolous, the court may grant the motion to withdraw and dismiss the case. If, on the other hand, the court finds any of the claims not to be frivolous, then the court must provide the assistance of counsel to argue the case. Id.
Oltman resists the motion, arguing his claims have merit, and requesting a hearing. As a preliminary matter, the court notes the motion presents questions of law that can be decided from the record, and finds a hearing would not assist the court in ruling on the motion. Accordingly, Gitman's request for hearing is denied.
The court turns to "a full examination of all the proceedings, to decide whether the case is wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
II. PROCEDURAL HISTORY
Oltman was convicted by a jury of first degree murder. Judgment and sentence were entered on the conviction on July 10, 1992. Oltman was sentenced to life imprisonment without parole. ( See Doe. No. 5, Ex. C) Oltman filed a timely direct appeal on the basis of ineffective assistance of counsel. The appeal was dismissed as frivolous on February 11, 1993, and a Writ of Procedendo issued and was filed on February 15, 1993. ( See Doc. No. 5, Exs. C, F)
The specific claims of ineffectiveness of trial counsel are not clear from the record before the court.
This fact, and additional procedural history regarding Oltman's direct appeal and his first postconviction relief action, have been taken from filings in Oltman's previous habeas action in this court, Case Number C98-3014-MWB, described infra.
Oltman filed a pro se application for postconviction relief (the "first PCR action") on July 14, 1994. The application was amended by counsel on September 15, 1994. Oltman's claim in the first PCR action was ineffectiveness of trial counsel for failing to request an instruction on involuntary manslaughter, or trial court error in not submitting such an instruction sua sponte. ( See Doc. Nos. 4 5 in Case No. 98-3014) Trial was held in the first PCR action on April 1, 1996.
The Franklin County District Court denied Oltman's first PCR application on June 20, 1996, holding:
"Based upon [the trial] and the record submitted, the Court concludes that the Applicant has failed to prove that instructions for involuntary manslaughter would have been appropriate. There is no evidence in the record to indicate that the victim died as a result of an act which would constitute involuntary manslaughter. Further, since a first degree murder conviction was returned, there is no prejudice for failure to instruct on manslaughter."
(Doc. No. 19 in Case No. C98-3014, at p. 21, quoting Ruling on Applicant's Petition for Postconviction Relief)
Oltman filed a notice of appeal on July 10, 1996, asserting the same arguments, to-wit: the trial court erred in determining Oltman was not entitled to a jury instruction on involuntary manslaughter; and trial counsel was ineffective in failing to request a jury instruction on involuntary manslaughter. ( See Doc. No. 19 in Case No. C98-3014, at p. 21) In its opinion dated September 24, 1997, the Iowa Court of Appeals affirmed the trial court's denial of relief in the first PCR action, holding as follows:
We find Oltman failed to prove the second prong, prejudice from counsel's failure to request or object to the omission of an instruction on involuntary manslaughter. When the court gives jury instructions on an offense and a lesser-included offense, and the jury returns a guilty verdict on the greater offense, the defendant is not prejudiced by the court's failure to give jury instructions on any additional lesser-included offenses. State v. Nowlin, 244 N.W.24 591, 596 (Iowa 1976); State v. Drosos, 114 N.W.2d 536, 533, 253 Iowa 1152, 1164-65 (Iowa 1962). Here, the court gave instructions on first-degree murder and second-degree murder, a lesser-included offense. The jury found Oltman guilty of first-degree murder, the greater offense. Therefore, Oltman was not prejudiced by the court's failure to instruct the jury on the additional lesser-included offense of involuntary manslaughter. In addition, our review of the record shows there was sufficient evidence in the record to convict Oltman of aiding and abetting the first-degree murder of Atkinson. Oltman has not shown he suffered prejudice because of counsel's omissions. Accordingly, we reject Oltman's ineffective assistance of counsel claim.
(Doc. No. 19 in Case No. C98-3014, at 21-22, quoting Order in Oltman v. State, No. 96-1262) The Iowa Supreme Court denied Oltman's request for further review by order dated December 5, 1997, and procedendo issued on December 23, 1997.
Oltman filed a petition for writ of habeas corpus in this court on February 3, 1998, docketed as Case Number C98-3014-MWB. The respondent (the "State") answered the petition on April 19, 1998. The issues raised in Oltman's first habeas petition were: (1) ineffective assistance of counsel for failing to request a jury instruction on (a) voluntary manslaughter and (b) involuntary manslaughter; (2) the trial court's error in failing sua sponte to instruct the jury on (a) voluntary manslaughter and (b) involuntary manslaughter; and (3) ineffective assistance of counsel in failing to advise Oltman of the applicable statute of limitations for filing a federal habeas action. ( See Doc. No. 4 in Case No. C98-3014) By amended petition filed July 14, 1999, Oltman added claims that (4) his counsel was ineffective in failing to show Oltman was incompetent to stand trial based on medications he was taking, and (5) counsel was ineffective in failing to seek suppression of statements Oltman made to a law enforcement officer while Oltman was on medication. ( See Doc. No. 24 in Case No. C98-3014). The State answered the amended petition on August 12, 1999. (Doc. No. 25 in Case No. C98-3014)
The State then filed a Motion to Dismiss or for Summary Judgment. The court found claims (1)(b) and 2(b) were exhausted and ripe for review, and the remaining claims were unexhausted. Because Oltman's petition contained both exhausted and unexhausted claims, the petition was subject to dismissal without prejudice by the court, or voluntary dismissal by Oltman of the unexhausted claims. See Murray v. Wood, 107 F.3d 629, 632 (8th Cir. 1997). On Oltman's request, the undersigned recommended, in a Report and Recommendation dated November 15, 1999, that the petition be dismissed without prejudice to allow Oltman to pursue his unexhausted claims. Chief Judge Mark W. Bennett adopted the Report and Recommendation, and the prior case was dismissed without prejudice on December 6, 1999. (Doc. No. 31 in Case No. C98-3014)
In the meantime, on June 16, 1999, Oltman filed, in the Iowa District Court for Franklin County, an Application to Proceed In Forma Pauperis and an Application for Appointment of Counsel for purposes of pursuing his unexhausted claims. (Doe. No. 5, Ex. C) The applications were granted on July 26, 1999. (Doc. No. 5, Ex. D)
Concurrently, Oltman filed a second pro se Application for Post Conviction Relief (the "second PCR action"). Oltman asserted violations of his constitutional rights on four grounds: (1) his prosecution on the basis of a trial information violated his right to be indicted for a capital crime by a grand jury, as set forth in the Fifth Amendment to the United States Constitution; (2) his trial counsel was ineffective in failing to impeach a State's witness on the basis that the State had bribed the witness by dropping charges against her in exchange for her testimony; (3) his trial counsel was ineffective in failing to present evidence that Oltman was incompetent to be questioned by law enforcement due to his medicated state; and (4) the fact that Oltman's medicated state rendered him incompetent to answer questions, yet he was questioned by law enforcement, constituted new evidence not previously presented to the trial court.
On August 12, 1999, the State filed a motion to dismiss Oltman's second PCR action on the basis that the grounds for relief asserted by Oltman did not "raise any ground of fact or law that could not have been raised in the applicable time period," and the second PCR action was filed outside the statute of limitations provided by Iowa Code section 822.3. (Doc. No. 5, Exs. F, G) The motion was set for hearing on September 27, 1999. (Doc. No. 5, Ex. I)
Oltman's court-appointed attorney, Phil Mears, served a subpoena on the State seeking to obtain "[a]ny psychological or psychiatric records for Chris Oltman in your possession." (Doc. No. 5, Ex. H) The record indicates Mears was pursuing a theory that exculpatory evidence may have been withheld from the defense in Oltman's case. Discovery of new evidence to which Oltman did not have access during the trial could allow Oltman to file a PCR action outside the three-year statute of limitations prescribed by Iowa law. See Iowa Code § 822.3.
Iowa Code § 822.3 requires PCR applications such as Oltman's to be filed "within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued." The statute goes on to provide an exception to the statute of limitations for any "ground of fact or law that could not have been raised within the applicable time period."
Oltman had filed, in the underlying criminal action, a notice that he intended to rely on the defense of diminished capacity and insanity. (Doc. No. 5, Ex. B) There was some discussion about having Oltman examined by a psychiatrist, a Dr. Taylor in Des Moines, on behalf of the State. Mears located records in the custody of the Franklin County Sheriff showing Oltman was transported to Des Moines on May 26, 1992, apparently for that purpose. ( See Doc. No. 5, Ex. Q) However, the State's attorney was unable to locate any report of such an evaluation. As efforts continued to locate the records, the hearing on the State's motion to dismiss was continued on numerous occasions. ( See Doc. No. 5, Exs. J, K, L, M, N, O, P, Q, R)
On January 31, 2000, Mears reported to the Franklin County Court that the records still had not been located. Mears also reported that a transcript from a hearing in Oltman's case that was held on May 18, 1992, indicated Oltman's own psychiatrist, Dr. Garfield, had not seen Oltman as of that date. Thus, the May 1992 trip to Des Moines may have been to see Dr. Garfield, rather than Dr. Taylor. At Mears's request, both doctors continued checking their records to determine when they saw Oltman. ( See Doe. No. 5, Ex. 5) Due to the ongoing investigation, the hearing on the State's motion to dismiss was continued again. ( See Doc. No. 5, Exs.S, T, U)
Ultimately, on April 7, 2000, Mears reported to the court:
I have investigated a complaint that the State improperly withheld exculpatory evidence, specifically a psychiatric evaluation of Mr. Otlman [sic] by a Dr. Michael Taylor in Des Moines. Based on my examination I conclude that Dr. Taylor never reduced his examination of Mr. Oltman to writing. Consequently there would not have been any exculpatory document that should have been turned over to the defense.
(Doc. No. 5, Ex. V) It appears Dr. Taylor never prepared a report because Oltman abandoned the diminished capacity and insanity defense. ( See Doc. No. 5, Ex. A)
The State's motion to dismiss Oltman's second PCR action finally was heard on April 17, 2000. The State's motion was granted, and the action was dismissed because it had been filed beyond the three-year statute of limitations. (Doc. No. 5, Ex. W) Oltman did not appeal the dismissal.
On May 15, 2000, Oltman filed in this court a handwritten document entitled "Motion for Court Appointed Counsel to Help File Federal Habeas Corpus Relief." (Doc. No. 1) The motion was granted (Doc. No 2), and the Movant was appointed to represent Oltman (see Doc. Nos. 2 3). A petition for writ of habeas corpus was to be filed by August 18, 2000. On August 23, 2000, the current motion was filed, in which the Movant seeks to withdraw from representing Oltman on the basis that counsel has not found any evidence to support the filing of a petition.
Oltman resists the motion (see Doc. No. 7), arguing he has valid constitutional claims that require further investigation, and asking the court to appoint new counsel to represent him. Specifically, Oltman's resistance seeks to revive the issues of his right to be indicted by a grand jury, and trial counsel's ineffectiveness for failing to impeach a witness on the basis that she was being bribed to secure her testimony by the dismissal of charges against her. Oltman also continues to argue there were psychological evaluations that were not produced to the defense. Significantly, Oltman does not reassert any of the three claims that were raised in his prior habeas action.
III. ANALYSIS
The Iowa court dismissed Oltman's second PCR action for failure to comply with the state procedural requirement that a PCR action must be filed within three years. When "a state court decline[s] to address a prisoner's federal claims because the prisoner [has] failed to meet a state procedural requirement . . . the state judgment rests on independent and adequate state procedural grounds," barring a federal habeas action. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). This rule is jurisdictional, precluding this court from reviewing Oltman's claims. See id.
Even if Oltman were able to show cause and prejudice for his procedural default, which the court finds he has not done, the court's review of the Movant's Anders brief and independent review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988), has revealed no nonfrivolous issues. Accordingly, counsel's motion to withdrawn should be granted and this case should be dismissed with prejudice.
The only issue raised in this court that Oltman arguably may have preserved for review is the claim that trial counsel was ineffective in failing to impeach a State's witness on the basis that she received a "bribe," in the form of the dismissal of charges against her, to induce her testimony. The record before the court is devoid of any of the filings from Oltman's direct appeal, and nothing in the record indicates the precise basis for Gitman's ineffective assistance of counsel claim in the direct appeal. However, the court finds that even if the argument has been preserved for review, it is wholly without merit. Although not addressed by an Iowa court, the identical argument has been raised, and rejected, in connection with the similar federal bribery statute. See, e.g., United States v. Albanese, 195 F.3d 389 (8th Cir. 1999); United States v. Singleton, 165 F.3d 1297 (10th Cir.) ( en banc), cert. denied, ___ U.S. ___, 119 S. Ct. 2371, 144 L.Ed.2d 775 (1999).
IV. CONCLUSION
Premises considered, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this Report and Recommendation, that counsel's motion to withdraw be granted and this case be dismissed with prejudice.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Am, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L. Ed. 2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.