David Gibbs v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  As I mentioned, I've read all the transcripts, I've reviewed my notes and the testimony here before me, I've reviewed the petition and I am prepared to rule.

The claims in counts one through three are ineffective assistance of counsel claims.   They're governed by Strickland v. Washington.   The requirements of Strickland is that the petitioner prove by a preponderance of the evidence two things:  One, the representation was not reasonably competent, or fell below the standard of reasonable competence, and, two, that the petitioner was prejudiced by the failure to provide reasonably competent representation.

With respect to Attorney Isko, the evidence reflects that Attorney Isko walked what he thought was a tightrope between presenting the defense that the petitioner wanted of actual innocence and preserving an argument on, for the death penalty phase of the case, of extreme emotional disturbance.   It is a difficult tightrope to walk and involves some risk both ways, but it is a decision that falls within the discretion of counsel and the court finds that the way it was approached by Attorneys Isko and McKay was more than reasonable.   The trial transcript reflects that they put on a vigorous defense for Mr. Gibbs when confronting what Mr. Gibbs himself today acknowledged was overwhelming evidence.   So the court finds that the first prong of Strickland v. Washington hasn't been met.

Even if there was some issues ․ and I should also point out that in connection with that first prong there was an argument regarding failure to investigate, that Attorney Isko went through the extensive efforts they made to track down any of these other witnesses without success.

To the extent there was an issue regarding the representation at trial, the petitioner would have to prove the second prong of Strickland, that he was somehow prejudiced.

There's been no evidence of prejudice here.   The only evidence that ․ and I should also say the prejudice requires that there is something that causes the court to lack confidence in the verdict at trial or, put another way, there's a reasonable possibility that had the lawyer done something differently at trial that the result would have been different.   There's been no evidence of that.

The court has granted a number of continuances in this case to allow the petitioner to find the witnesses which could address the prejudice prong because really we could have a number of errors by trial counsel, but without some evidence that would have established the actual innocence, or some evidence of extreme emotional disturbance other than what was presented at trial that could have been found by trial counsel that wasn't, there's no prejudice.   You would still be faced with the overwhelming evidence that was presented against you.

We don't have any witnesses recanting here.   We don't have any new alibi witnesses.   There is nothing that causes the court to question its confidence in the verdict.

So, as to counts one and three, as they relate to trial counsel, the petition is denied.

As to count two as it relates to appellate counsel, Attorney Zeldis testified fully as to the efforts that he made on appeal, how he chose the issues to raise.   There was no evidence offered to the contrary that would suggest that the approach taken by Attorney Zeldis was not an appropriate one.

He did raise the speedy trial issue.   He did say that it may have been stronger if the record were better below, but what was missing below on the speedy trial issue was there was never a written demand for a speedy trial that was filed, so, therefore, there would have been no opportunity for a dismissal and there would have been ․ on the speedy trial issue, they would have had to show some prejudice that had he been granted a speedy trial and had his trial occurred earlier, had his lawyers asked for it, that that would have somehow affected the outcome of the trial.

There's been no evidence of that.   No evidence that the witnesses would have showed up if the trial had occurred sooner than it did or that some evidence was lost over the period of time and the court addressed the speedy trial issue.

So the court finds that there was nothing ineffective about Attorney Zeldis's representation and also finds that there was no prejudice, so the petition is denied as to count two.

As to count four, again, it's the claim that the speedy trial ․ the defendant's right to a speedy trial was impaired by the actions of the court.

That issue was raised on appeal.   It was fully addressed on appeal;  therefore, there is nothing further for this court to address regarding count four.

There was no constitutional violation, the Supreme Court has already determined that, and further, the court finds that there was no prejudice to the petitioner.   Even if he should have had a speedy trial, he's provided no evidence that the result would have been different or this court should lack any confidence in the outcome of the trial.

So for those reasons the court denies the petition as to count four.

Now, I understand, Mr. Gibbs, that you still maintain your innocence.   You testified here about what happened there and if you are able at a time down the road to develop that actual innocence claim, you will have an opportunity to file a new habeas.

In addition, let me say that there is a way to file a motion to open a judgment if over the next 120 days you develop new evidence.   If you are able to meet with Garth and you find an alibi witness and you talk to Attorney Visone and there's some evidence that you want to present, there's a motion to open up the judgment.   I can consider that at that time.   But at this point, the case has been pending for ten years.

I understand the fact that you had two prior counsel that you were disappointed with the efforts they made or didn't make on your behalf and that may have, in your view, affected the ability to find people, but we have to deal with what we have today, sir, and I have to, in good conscience, bring the matter to a conclusion based on what was presented before me.

So that's my judgment and I wish you the best.

Bright, J.

Bright, William H., J.