                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 16 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ORMOND LEE WIMBERLY, JR.,

                Petitioner-Appellant,

    v.                                                   No. 97-3133
                                                    (D.C. No. 94-CV-3201)
    DAVE MCKUNE and CARLA                                  (D. Kan.)
    STOVALL, Attorney General,

                Respondents-Appellees.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
      Petitioner Ormond Lee Wimberly, Jr. was convicted in Kansas state court

of first-degree murder. Proceeding pro se, he now appeals from the district

court’s order dismissing his petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.


                                 BACKGROUND

      The body of the victim, Sarah Woody, was found early June 17, 1981, in

the rear seat of her car, which was parked in a lot in downtown Topeka, Kansas.

Ms. Woody had been shot five times at close range in the afternoon or early

evening of June 16. The case remained unsolved until 1987, when the petitioner

was charged with felony murder. After a trial, held in August 1988, the jury

returned a guilty verdict. Petitioner filed an unsuccessful appeal to the Kansas

Supreme Court, contending, among other things, that the evidence was

insufficient to support his conviction. See State v. Wimberly, 787 P.2d 729,

734-35 (Kan. 1990). 1 Thereafter, with a different attorney, he requested state

post-conviction relief, pursuant to Kan. Stat. Ann. § 60-1507, alleging that he had

received ineffective assistance of counsel because his trial attorneys had coerced

him into giving up the right to testify on his own behalf. The state court


1
       Petitioner also appealed the trial court’s use of a prior conviction by
military court martial to enhance his sentence under the Kansas Habitual Criminal
Act, see Kan. Stat. Ann. § 21-4504(a). The supreme court agreed and vacated the
additional sentence. See Wimberly, 787 P.2d at 737-38.

                                         -2-
conducted an evidentiary hearing, at which trial counsel and petitioner testified,

and then denied relief. The Kansas Court of Appeals affirmed the decision.

      Subsequently, petitioner sought habeas corpus relief in federal district

court, raising the claims of insufficiency of the evidence and ineffective

assistance of counsel. In a well-reasoned memorandum order, the district court

summarized the applicable law; reviewed the state court record, including the

transcript of the post-conviction hearing; and determined that petitioner had

presented no grounds entitling him to relief. See Wimberly v. McKune, 963

F. Supp. 1016 (D. Kan. 1997). The court granted a certificate of appealability on

June 6, 1997, which we construe as a certificate of probable cause. 2


                                   DISCUSSION

      Petitioner’s claims present mixed questions of fact and law to be reviewed

de novo in a federal habeas proceeding. See Duvall v. Reynolds, No. 96-6329,

1998 WL 97748, *4 (10th Cir. Mar. 4, 1998) (ineffective assistance of counsel);

Maes v. Thomas, 46 F.3d 979, 988 (10th Cir.1995) (insufficiency of evidence).



2
       Because the petition in this case was filed prior to April 24, 1996,
petitioner is not subject to the requirement of a certificate of appealability in
28 U.S.C. § 2253(c), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), see Lindh v. Murphy, 117 S. Ct. 2059, 2068
(1997); United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (en
banc), petition for cert. filed, (U.S. Feb. 14, 1998) (No. 97-8055), but he is
subject to § 2253's previous requirement of a certificate of probable cause.

                                         -3-
However, we apply a presumption of correctness to underlying findings of fact

made by the state court. See Castro v. Ward, No. 97-6179, slip op. at 5 (10th Cir.

Feb. 18, 1998). 3

I.    Sufficiency of the Evidence

      In our review of a claim challenging the sufficiency of evidence, we

determine “‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt,’” Wingfield v. Massie, 122 F.3d 1329, 1332

(10th Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)), cert.

denied, 66 U.S.L.W. 3474 (U.S. Mar. 9, 1998) (No. 97-1140), looking to state law

for the “substantive elements” of the relevant criminal offense, id. (quoting

Jackson, 443 U.S. at 324 n.16). “This standard ‘gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’” Id. (quoting Jackson, 443 U.S. at 319). We note that “Kansas

law does not allow a jury to find an element of a crime from inferences based



3
       Castro, 1998 WL 65398 at *2, discusses the presumption of correctness
applicable to cases, such as this one, to which AEDPA does not apply. See
Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997) (while revised
§ 2254(e), like pre-AEDPA law, affords deference to state court factual findings,
it goes further and requires habeas petitioner to rebut presumption with clear and
convincing evidence).

                                          -4-
only on inferences.” Kelly v. Roberts, 998 F.2d 802, 809 (10th Cir. 1993) (citing

State v. Burton, 681 P.2d 646, 651 (Kan. 1984)).

      The record in this case contains sufficient evidence to sustain a felony

murder conviction, under Kansas law, based on the commission of an aggravated

robbery 4 resulting in the death of Ms. Woody. 5 The prosecution presented

evidence at trial tending to show that an aggravated robbery had taken place:

(1) Ms. Woody’s death by gunshot; (2) the finding of her purse behind the

passenger seat in her car with the billfold and other contents strewn about the

right rear floorboard; and (3) the absence of money in her car, though she had

cashed a $500.00 check on the day of her death.

      “Predominately circumstantial” evidence linked petitioner to the crime.

Wimberly v. McKune, 963 F. Supp. at 1027 (quoting State v. Wimberly, 787 P.2d

at 733). Experts in fingerprinting testified that petitioner’s prints were on

receipts, dated January 10, and May 6, 1981, found inside Ms. Woody’s billfold,

and also on a shoebox and tissue package found in the front seat. Six of Mrs.

Woody’s close friends were called to state that they had never seen petitioner in

4
      “Aggravated robbery is a robbery . . . committed by a person who is armed
with a dangerous weapon or who inflicts bodily harm upon any person in the
course of such robbery.” Kan. Stat. Ann. § 21-3427.
5
       “Murder in the first degree is the killing of a human being committed: . . .
in the commission of, attempt to commit, or flight from an inherently dangerous
felony [such as aggravated robbery].” Kan. Stat. Ann. § 21-3401.


                                         -5-
her company or heard her speak of him. A witness testified that he had seen a

handgun in petitioner’s car about a year earlier. Finally, a witness who worked

near the crime scene testified that petitioner had been in the witness’s office on

the day of Ms. Woody’s death. Petitioner did not testify. 6

      As the district court properly concluded, “[t]his circumstantial evidence is

sufficient to support the jury’s verdict,” in that “a rational factfinder could have

concluded beyond a reasonable doubt that Wimberly’s fingerprints were placed on

the receipts and other items in the victim’s car at the time of the commission of

the crime.” Wimberly v. McKune, 963 F. Supp. at 1028. Contrary to petitioner’s

argument, the holding of the Ninth Circuit Court of Appeals in Mikes v. Borg,

947 F.2d 353, 361 (9th Cir. 1991) does not affect the analysis.

      In that case, which “rested exclusively” on evidence that defendant’s prints

were among those found on the post used as the murder weapon, id. at 355, the

court held that “the record must contain sufficient evidence to permit a jury,

applying the beyond a reasonable doubt standard, to draw the inference that the

defendant touched the object during the commission of the crime,” id. at 361.

Here, petitioner’s prints showed that he had handled items of the victim’s



6
      During the defense case, petitioner’s counsel attempted to undercut
testimony concerning the fingerprint evidence and petitioner’s possession of a
handgun. He also presented witnesses who reported seeing other suspicious
individuals near Ms. Woody’s car.

                                         -6-
property which were highly unlikely to have been available to him before the

robbery. Moreover, there was additional corroborating evidence of his

involvement.

II.   Ineffective assistance of counsel

      Petitioner also claims that his trial counsel coerced him into waiving his

right to testify and thus provided him with ineffective assistance of counsel. “The

Supreme Court has recognized that the Constitution protects a defendant’s right to

testify on his own behalf at a criminal trial as ‘essential to due process of law in a

fair adversary process.’” United States v. Ruiz-Castro, 92 F.3d 1519, 1529 (10th

Cir. 1996) (quoting Rock v. Arkansas, 483 U.S. 44, 51 (1987)) (additional

quotation omitted). The defendant, not counsel, makes the decision whether or

not to testify. See United States v. Janoe, 720 F.2d 1156, 1161 & n.10 (10th Cir.

1983). “Because defense counsel is primarily responsible for advising the

defendant of his right to testify . . . the appropriate vehicle for claims alleging

that defense counsel violated [this right] is a claim of ineffective assistance of

counsel.” United States v. Camacho, 40 F.3d 349, 355 (11th Cir. 1994) (citing

United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992)).

      To establish ineffective assistance of counsel, petitioner first “must show

that his trial counsel committed serious errors in light of ‘prevailing professional

norms’” such that his legal representation fell below an objective standard of


                                          -7-
reasonableness. United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993)

(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). 7 In drawing the

“difficult line . . . between earnest counseling and [the] overt coercion” which

amounts to ineffective assistance, courts consider:

      (1) whether the defendant knew about his constitutional right to
      testify, and if not, whether he was informed by counsel; (2) the
      competence and soundness of defense counsel’s tactical advice, i.e.,
      whether counsel presents the defendant with sufficient information to
      permit a meaningful voluntary waiver of the right to testify; and (3)
      any intimidation or threatened retaliation by counsel relating to the
      defendant’s testimonial decision.

Lema v. United States, 987 F.2d 48, 52-53 (1st Cir. 1993) (citations omitted).

      Petitioner, who has a degree in criminal justice and has been a defendant in

two prior criminal trials, testified at the state post-conviction hearing that counsel

did not inform him that he had the right to testify and that he was not otherwise

aware of the right. He described a heated discussion at the close of the

prosecution’s case, during which he insisted on testifying so that he could tell the

jury he was not guilty. With at least equal vehemence, counsel advanced the



7
       A petitioner making an ineffective assistance claim must also show that the
deficient performance was so prejudicial that he was deprived of a fair trial with a
reliable result. Sellers v. Ward, No. 97-6062, 1998 WL 45181, *12 (10th Cir.
Feb. 4, 1998) (citing Strickland, 466 U.S. at 687)). Courts may address the
performance and prejudice components in any order but need not address both if a
petitioner fails to make a sufficient showing on one. Id. (citing Strickland, 466
U.S. at 697).


                                         -8-
tactical reasons for petitioner’s remaining silent and advised against testifying.

The conversation lasted approximately an hour and a half, and, at the end,

petitioner told counsel to “[g]o ahead and do what you want to do.” Hr’g Tr. at

62.

      Plaintiff’s chief trial attorney testified at the post-conviction hearing that it

was his “practice in all cases to explain to [clients] that it is their choice whether

or not to testify,” although he did not specifically recall providing this

explanation to petitioner. Id. at 18. Counsel assumed that petitioner knew of his

right to testify “based on [their] entire relationship,” during which he treated

petitioner as an active member of the defense team. Id. at 38-39. Counsel’s

testimony on the attorney-client argument was similar to petitioner’s. He

described raising his voice in an effort “to help [petitioner] understand

intellectually . . . how his emotional desire to testify may not be the best trial

tactic,” id. at 21, and explain why “his case was stronger without his testimony,”

id. at 24. By the end of the discussion, counsel felt that petitioner had accepted

his logic and advice. See id. at 29.

      Applying the three relevant factors listed in Lema, 987 F.2d 52-53, we

conclude that petitioner has not met his burden of showing constitutionally

deficient performance. First, we find substantial support in the record for the

state court’s finding that petitioner understood his right to testify: counsel’s usual


                                           -9-
practice of advising his clients; petitioner’s education and experience in the

criminal justice system; and petitioner’s participation in defense strategy

decisions. See also Lema, 987 F.2d at 53 (noting that the “apparent vehemence

with which [petitioner] at first insisted on testifying, as evidenced by his

argument with [counsel], fairly may have reflected [petitioner’s] clear awareness

that the ultimate decision was his to make”).

      As to the second factor, concerning the sufficiency of defense counsel’s

tactical advice, the testimony establishes that counsel offered extensive

information on legitimate reasons for waiving the right to testify. Finally, the

record discloses no intimidation or threatened retaliation by counsel relating to

the defendant’s testimonial decision. Petitioner’s admitted, albeit reluctant,

agreement with counsel’s advice supports a finding that counsel did not coerce

petitioner into waiving his rights. Cf. Nichols v. Butler, 953 F.2d 1550, 1553

(11th Cir. 1992) (finding coercion where counsel, in an effort to persuade

defendant to waive testimonial right, threatened to withdraw during trial).

Accordingly, we determine that counsel’s performance was not constitutionally

deficient.




                                         -10-
                               CONCLUSION

     The judgment of the United States District Court for the District of Kansas

is AFFIRMED. The mandate shall issue forthwith.



                                                 Entered for the Court



                                                 David M. Ebel
                                                 Circuit Judge




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