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Smith v. Brown

United States Court of Appeals, Seventh Circuit

August 26, 2014

ROY A. SMITH, Petitioner-Appellant,
RICHARD BROWN, Respondent-Appellee

Argued April 8, 2014

Page 791

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:05-cv-00590-JTM -- James T. Moody, Judge.

For Roy A. Smith, Petitioner - Appellant: James F. Hurst, Attorney, Kathryn Bayer, Attorney, Winston & Strawn Llp, Chicago, IL.

For Richard Brown, Respondent - Appellee: Andrew A. Kobe, Attorney, Office of The Attorney General, Indianapolis, IN.

Before POSNER and TINDER, Circuit Judges, and LAWRENCE, District Judge.[*]


Page 792

Tinder, Circuit Judge.

Roy A. Smith appeals the district court's denial of his habeas petition, through which he seeks to set aside his Indiana criminal conviction due to allegedly ineffective assistance of counsel. Although we agree that it appears Smith's counsel was particularly deficient, Smith has failed to demonstrate how his lawyer's substandard effort prejudiced his case in light of the overwhelming evidence against him. We therefore affirm the district court's judgment.

I. Background

The incident underlying this appeal occurred on March 19, 2003, when Smith was already serving a 90-year sentence for murder in the Indiana State Prison. That morning at breakfast, Smith walked behind a fellow inmate, Anthony Fisher, and stabbed him several times with half a pair of scissors. Fisher suffered wounds to the neck, back, and chest. He required surgery and remained in the hospital for twelve days. Smith's attack was observed by several guards, who promptly detained him.

Facing charges for attempted murder and aggravated battery in LaPorte County Superior Court, Smith received a court-appointed public defender named James Cupp. Soon after the appointment, Smith himself composed numerous motions to the court, which Cupp believed were meritless and therefore did not file. These attempted motions included, for example, a challenge to the integrity of the arrest warrant because the copy Smith received did not have a signature on it. Smith then tried to submit a motion to change attorney, and sent a letter to Cupp detailing his frustrations and Cupp's failure to communicate with him. But during a subsequent pretrial hearing on December 23, 2003, Smith decided not to request a change of counsel, saying that he was " going to give it another shot as long as I can get my motions filed timely and he kind of abide[s] by my wishes."

The attorney-client relationship did not improve. The court held another pretrial hearing on April 23, 2004, during which Cupp questioned Smith on the record so that he could essentially argue in support of his self-drafted motions. At the end of that proceeding, Smith again requested to have another attorney appointed. On May 6, the court issued an order denying all of Smith's motions, including his request to change his attorney. At the next hearing, on June 4, Cupp informed the court that Smith had filed a disciplinary complaint against him with the Indiana state bar. He represented to the court that the complaint had already been dismissed. He also noted that Smith wished to file an

Page 793

interlocutory appeal of the court's denial of his motions, but Cupp declined to move for a continuance to allow such an appeal. Smith, for his part, again informed the court of his frustration with Cupp's decision not to file his desired motions and his alleged refusal to communicate with him. In fact, he claimed that " I haven't discussed anything with Mr. Cupp in 11 months" and that Cupp had " done absolutely nothing" to assist in Smith's defense in that time. Smith also waived his right to a jury trial. Shortly after the June 4 hearing, Smith filed a motion on his own to remove Cupp and proceed pro se, along with a new motion to dismiss the indictment.

A bench trial commenced on June 22, but Smith sought a continuance. He claimed he had not received notice of the court's May 6 order denying his earlier motions until two days before the June 4 hearing, and that therefore he had been unprepared to promptly challenge the court's rulings. Moving on to his motion to dismiss the indictment, he argued that the trial court judge was not neutral because he had already made the probable cause determination underlying his arrest. He further stated that he wanted to call witnesses and present evidence at trial, but that Cupp had refused to pursue those leads. In pleading with the trial court, Smith stated that " I don't know what [Cupp is] going to do" at trial because " [h]e refused to communicate with me. Since we ...

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