entire case after Schlager's opening statement, thus affording Gillespie an opportunity to reevaluate the decision to put Dr. Ehrenpreis and Schlager on the stand, as well as diminishing the impact of the small portion of Gillespie's opening statement where the unfulfilled promises where mentioned.
Therefore, this Court finds that Gillespie's decisions were embedded in sound trial strategy. We will not function as a "Monday morning quarterback" and call the plays that we think Gillespie should have called. See Harris, 894 F.2d at 877. Indeed, considering the potential repercussions on cross-examination of Schlager's testimony and the limited scope of Dr. Ehrenpreis' testimony, this Court cannot conclude that Gillespie's decision fell below an objective standard of reasonableness; nor do we find that the outcome in this case would have been different had Gillespie honored the promise he made during his opening statement. See Strickland, 466 U.S. at 668, 694; cf. Turner v. Williams, 35 F.3d 872, 903 (4th Cir. 1994) (failure to introduce mitigating evidence described in opening statement was not ineffective assistance of counsel), cert. denied, 115 S. Ct. 1359, 131 L. Ed. 2d 216 (1995). Furthermore, since Schlager gave Gillespie "reason to believe that pursuing certain investigations would be fruitless or even harmful," his decision not to pursue "those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691. We now move to Schlager's next claim, which fails for many of the same reasons already set forth.
C. Confusional Arousal Defense Claim
Based on the comprehensive record available in this case,
this Court finds that Schlager's ineffective assistance of counsel claim regarding Gillespie's decision not to pursue a "confusional arousal defense" fails both prongs of the Strickland standard. Specifically, Schlager fails to establish, which he must, that Gillespie's performance was deficient to the degree that it fell below the profession's objective legal standards for reasonable effective representation; also, Schlager fails to establish that this alleged deficiency prejudiced him to the degree that there would be "a reasonable probability that but for [Gillespie's alleged] unprofessional errors, the result of the proceeding would have been different." Id. at 694. See Drake v. Clark, 14 F.3d 351, 355-356 (7th Cir. 1994); Lane, 926 F.2d at 700.
In the instant matter, Schlager contends that "the linchpin of [his] § 2254 presentation is defense counsel's failure to even communicate with either doctor [Radulovacki or Cartwright] prior to or during [his] trial [about a confusional arousal defense]." Petition at 7 (emphasis omitted). In view of the post-conviction hearing testimony, this Court disagrees with Schlager's contention that this failure amounts to ineffective assistance of counsel. Although Gillespie did not communicate with either doctor, Dr. Ehrenpreis and Schlager communicated with both Drs. Radulovacki and Cartwright on several occasions. (R. 931, 936, 1049, 1064-65). In turn, Dr. Ehrenpreis and Schlager interacted continuously with Gillespie throughout the trial discussing the merits of Schlager's defense. Id. at 998-1003.
Apparently, Gillespie saw no need to communicate with Drs. Radulovacki and Cartwright, especially in view of the PDR's acknowledgement that there was no definite causal relationship between the use or withdrawal of Calan S.R. and vivid dreams or night terrors, and since their testimony would be limited in scope as Dr. Ehrenpreis' testimony would have been. And, if necessary, Dr. Ehrenpreis could have testified as to the alleged use of Calan S.R. and sleep disorders, as he did in the post-conviction hearing. Finally, as discussed earlier, there was an abundance of available evidence indicating that Schlager was not even taking the drug during the relevant time period. (R. 1003-06)
Nevertheless, Schlager now contends that because Gillespie was initially contemplating a possible insanity defense or defense based on sleep dysfunction and then abandoned such a defense during the State's case, he was rendered ineffective assistance of counsel. Reply at 1-5. Schlager cites Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988), and United States ex rel. Cosey v. Wolff, 727 F.2d 656 (7th Cir. 1984), to support his argument.
Reply at 6, n.7. However, those cases are readily distinguishable from the case at bar. In Montgomery, the court held that a defense counsel's failure to investigate the only available disinterested alibi witness to a residential burglary constituted ineffective assistance of counsel. Montgomery, 846 F.2d at 415. The court stressed that "the importance of the information [from the disinterested witness] that was not tracked down and presented to the jury is, under the facts of this case, extraordinarily significant." 846 F.2d at 415.
Here, the post-conviction hearing provided valuable insight into the questionable merits of Schlager's confusional arousal defense, which Gillespie alluded to on several occasions throughout the hearing. (R. 1000-01, 1003) Unlike Montgomery, where a disinterested witness could have exculpated the defendant by providing extraordinarily significant testimony; here, the potential expert witnesses' testimony was not only limited in scope by Judge Tonigan's order, but was also significantly tied to the credibility of Schlager, which was problematic at best. Id. at 1003-05. Thus, unlike Montgomery, it is very doubtful that the abandoned defense would have had any exculpatory effect.
In Cosey, where the defendant was convicted of attempted murder and other lesser included offenses, the court found that the defense counsel's "out-of-hand rejection of proffered witnesses without interviewing or investigating them" fell below the minimum level of competence. Cosey, 727 F.2d at 658-659. In concluding that a finding of ineffective assistance of counsel was warranted, the court emphasized that the defendant's entire defense rested on discrediting the State's main witness--the victim--and that the five proffered witnesses would not only have corroborated the defendant's story, thereby impeaching the victim, but they also would have entirely exculpated the defendant. 727 F.2d at 658 n.3. The defense counsel's decision to merely discredit the victim's testimony by pointing out inconsistencies, and exposing that he was a drug addict, failed to rise to the minimum standard of professional competence. 727 F.2d at 657-658.
In the instant matter, Gillespie did not make an out-of-hand or unreasoned rejection of the confusion arousal defense; rather, he had the opportunity to discuss its merits, at great length, with Dr. Ehrenpreis and Schlager who in turn discussed the trial with Drs. Radulovacki and Cartwright. Based on the State's case, Gillespie chose not to pursue the defense. (R. 1000-05) Gillespie alluded to his decision on several occasions throughout the hearing. Id. Again, in view of the limited scope of the expert witnesses' testimony and the potential credibility problems facing Schlager, Gillespie made a strategic decision, not a out-of-hand rejection, not to pursue a questionable defense.
Despite this Court's holding herein, there can be no doubt that in a perfect world Gillespie could have been a bit more reticent during his opening statement and also could have personally contacted witnesses Radulovacki and Cartwright to determine for himself if they were worthy of being used as witnesses. Certainly if this Court were grading Gillespie's performance as a trial attorney these potential discrepancies would be worth mentioning. However, that is not the Court's role here. Moreover, trial advocacy is art, and not an exact science, which unfortunately is too often times measured by the results of trials. Yet, any trial attorney worth his or her hourly rate has come to the realization that the outcome of a trial is most often determined by the facts of the case.
In this case, the facts were against Schlager. He was represented by a very competent, though not perfect, trial counsel. Although his trial was not perfect, and few are, his conviction certainly was not the product of any constitutional error. See United States v. Lane, 474 U.S. 438, 445, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986) ("'given the myriad safeguards provided to assure a fair trial, and taking into account the reality of human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial.'") (quoting United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974, 1980, 76 L. Ed. 2d 96 (1983)). As an initial matter, Schlager must first show that Gillespie's actions fell below the objective reasonable standards as described in Strickland. They did not. Rather, Gillespie based his actions on sound trial strategy in view of the facts developed by the State. (R. 1000-05) However, assuming, arguendo, that Schlager could establish the first Strickland prong, he still must establish that there existed "a reasonable probability that, but for [Gillespie's] unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also McAleese v. Mazurkiewicz, 1 F.3d 159, 167 (3d Cir.) (decision not to call an alleged alibi witness was a strategic decision and not ineffective assistance of counsel), cert. denied, 126 L. Ed. 2d 603, 114 S. Ct. 645 (1993). Here again, this Court finds that Schlager has not done so. The potential expert testimony would have been limited in scope--thereby diminishing its import--and readily rebutted by the State's expert (R. 1003); more importantly, the potential testimony that would have been conveyed to the jury by the experts would have be based heavily on Schlager testifying, which he chose not to do.
As was the case in Tyson, Schlager had his "one appeal from his conviction. Federal habeas corpus does not entitle him to another." See Tyson, No. 94-3359, slip op. at 2. "We are not authorized to offer a further tier of appellate review. We are to determine only whether [Schlager] was deprived of any of his federal rights that can be enforced in a federal habeas corpus proceeding." Id. Schlager was not deprived of his Sixth Amendment rights.
For all of the foregoing reasons, the Petition for a Writ of Habeas Corpus is denied. The Clerk of the Court is directed to dismiss petitioner Seymore Schlager's Petition for a Writ of Habeas Corpus with prejudice. This order shall constitute a final order for purposes of Fed. R. Civ. P. 58. This case is terminated.
United States District Judge
May 1, 1995