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Randal R. Steen v. Robyn T. Schmalenberger

August 6, 2012

RANDAL R. STEEN PETITIONER - APPELLANT
v.
ROBYN T. SCHMALENBERGER RESPONDENT - APPELLEE



Appeal from United States District Court for the District of North Dakota - Bismarck

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: May 15, 2012

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

A North Dakota jury convicted Randal Steen of manufacturing methamphetamine, possessing methamphetamine, and possessing drug paraphernalia, all in violation of state law. After the North Dakota Supreme Court affirmed his conviction and the denial of his motion for state post-conviction relief, Steen filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The district court*fn1 denied Steen's petition, and we affirm.

I.

On January 16, 2002, officers of the Burleigh County Sheriff's Department sought to serve Steen with civil process and arrest him on outstanding warrants. After confirming that he was staying at the NoDak Motel in Bismarck, North Dakota, the officers went to the motel and knocked on the door to Steen's room. Upon entering the room, the officers noticed what appeared to be drugs and paraphernalia. After Steen denied them permission to search, the officers obtained a search warrant for the room. The resulting search uncovered additional drugs and paraphernalia.

Steen was arrested and charged with drug-related offenses. The case proceeded to trial. On the first day of trial, Steen wore an orange prison jumpsuit with the words "Prison Inmate" on the back. On the second day of trial, Steen wore a black-and-white striped uniform with the words "Burleigh County Detention Center" on the back. After a two-day trial, the jury convicted Steen on all counts, and the court sentenced him to fifteen years' imprisonment.

Steen appealed his conviction to the North Dakota Supreme Court. While his direct appeal was pending, he filed a motion for post-conviction relief, pursuant to N.D. Cent. Code § 29-32.1-01, alleging, among other things, that his trial counsel was ineffective for failing to object to his appearance at trial in prison garb. The trial court denied the motion after an evidentiary hearing, and Steen appealed that ruling to the Supreme Court of North Dakota.

The state supreme court resolved both the direct appeal and the appeal from the denial of post-conviction relief in a single decision. The court reasoned that "a defendant's appearance at trial in prison attire does not automatically vitiate a conviction," State v. Steen, 690 N.W.2d 239, 244 (N.D. 2004) (citing Estelle v. Williams, 425 U.S. 501, 507-08 (1976)), and concluded that Steen failed to establish that his counsel's alleged errors prejudiced his defense. The court observed that "the post-conviction court's ability to assess the prejudicial effect of Steen's attire was hampered by Steen's failure to provide a transcript of the trial to the court," and determined that the post-conviction court committed no error on the record before it. Id.

In 2007, Steen filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed Steen's petition as untimely, but this court disagreed and remanded the case for further proceedings. Steen v. Schuetzle, 326 F. App'x 972 (8th Cir. 2009) (per curiam). The district court then denied relief, and this court granted a certificate of appealability limited to Steen's claim that his trial counsel was ineffective for failing to object to his appearance at trial in prison attire.

II.

We consider petitions for a writ of habeas corpus under the framework created by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Because Steen's claim "was adjudicated on the merits in State court proceedings," 28 U.S.C. § 2254(d), he can obtain relief only if the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2).

The Supreme Court of North Dakota applied the familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668(1984), to Steen's claim of ineffective assistance of counsel. The court thus required Steen to show that his counsel's performance was deficient and that counsel's errors prejudiced the defense. Id. at 687; see also Smith v. United States, 182 F.3d 1023, 1025-26 (8th Cir. 1999). The state supreme court determined that Steen had not established prejudice resulting from counsel's failure to object to Steen's appearance at trial in prison attire. Steen, 690 N.W.2d at 243-44.

On appeal, Steen argues that the state court erred in requiring him to prove that his counsel's error was prejudicial under Strickland. He cites United States v. Cronic, 466 U.S. 648 (1984), where the Supreme Court declared that some denials of the right to counsel are "so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. at 658. The Court identified three specific situations that meet this standard: (1) the complete denial of counsel; (2) an entire failure of counsel to subject the prosecution's case to meaningful adversarial testing, such as in Davis v. Alaska, 415 U.S. 308 (1974); and (3) circumstances, such as those in Powell v. Alabama, 287 U.S. 45, 53 (1932), where the likelihood that competent counsel could provide effective assistance is so small that a presumption of prejudice is appropriate. ...


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