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Monday, April 15, 2013

Ind. Decisions - 7th Circuit decides three Indiana cases today (2 are consolidated)

In UNITED STATES OF AMERICA v. RONALD ZITT and JOSHUA WAMPLER (ND Ind., Lozano), a 10-page opinion, Judge Williams writes:

Ronald Zitt and Joshua Wampler were charged in a multi-count, multidefendant indictment alleging a heroin conspiracy and substantive counts of distribution. See 21 U.S.C. §§ 841(a)(1), 846. Zitt was convicted after a jury trial of conspiring to distribute, and distributing, heroin. Wampler pleaded guilty to conspiring to distribute heroin. Both filed notices of appeal, and we consolidated their cases.

On appeal Zitt challenges the denial of his motion for a mistrial. Because the district court properly exercised its discretion in denying that motion, we affirm the judgment.

Wampler’s appointed lawyer has concluded that Wampler’s appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Wampler waived his right to appeal as a condition of his plea agreement. We therefore grant counsel’s motion to withdraw, dismiss the appeal, and deny Wampler’s motion for substitute counsel.

In TORRAY STITTS v. BILL WILSON, Superintendent, Indiana State Prison (SD Ind., McKinney), a 22-page opinion, Judge Williams writes:
Petitioner Torray Stitts, who was convicted of murder in Indiana state court and sentenced to sixty years’ imprisonment, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Stitts asserts that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because before deciding not to present an alibi defense, he only interviewed one alibi witness, Stitts’s father, while unreasonably failing to investigate whether there might be any more. Without explicitly determining whether trial counsel in fact limited his alibi investigation to a single interview, the state court found that such a limited investigation would be sufficient under Strickland. We agree with Stitts that this was an unreasonable application of Strickland. Given that Stitts’s alibi was that he was at a nightclub, where there could be any number of potential alibi witnesses, the failure to explore that possibility is unreasonable. We also find that the state court unreasonably applied Strickland when it found no prejudice, because the prosecution’s case rested entirely on the shaky testimony of two witnesses which could have been neutralized by alibi witness testimony.

As the State suggests, however, that does not resolve the critical factual question concerning the actual extent of trial counsel’s alibi investigation. We have no state court finding to which we may defer, and the record is otherwise ambiguous. So we must remand to the district court to resolve it. If the district court finds that trial counsel performed no further investigation (and there was no other fact that would reasonably justify that conduct), then the district court should grant Stitts’s habeas petition. If the district court finds that trial counsel did more, then it must determine de novo whether that investigation was reasonable under Strickland. So we reverse and remand.

Posted by Marcia Oddi on April 15, 2013 04:17 PM
Posted to Ind. (7th Cir.) Decisions