Habeas Corpus — ineffective assistance

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United States Court of Appeals For the Seventh Circuit

Criminal

Habeas Corpus — ineffective assistance

It was not ineffective assistance for a defendant’s attorney to argue he had an alibi in his opening statement although there were no alibi witnesses.

“[W]e agree with the Indiana Court of Appeals that counsel’s decision was a reasonable strategic decision, and therefore not subject to Monday-morning quarterbacking. See Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010) (‘It is well established that our scrutiny of counsel’s trial strategy is to be deferential and that we do not second guess the reasonable tactical decisions of counsel in assessing whether his performance was deficient.’). As a practical matter, Ess’s strategy options were exceedingly limited. He advised Atkins that the ‘best’ strategy was to argue that he should be acquitted of attempted murder because he lacked intent to kill. However, this option was, in Ess’s view, entirely contingent upon Atkins’s testimony. So when Atkins chose instead to exercise his right not to testify, Ess felt that this door closed, testifying: ‘I just . . . didn’t see any witness giving me the evidence that I needed to get those instructions in, because they have to be supported by the record.’ Therefore, Ess made a calculated decision to comply with his client’s desires and pursue an ‘all or nothing’ approach in the form of an alibi/ misidentification defense. Undoubtedly, Ess’s defense strategy created a steep hill to climb. But given the circumstances at hand, we are easily persuaded that Ess’s decision was a reasonable one.”

Affirmed.

11-1891 Atkins v. Zenk

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Pratt, J.