By Andrea Ahn
In United States v. Challoner, the Tenth Circuit affirmed the district court’s decision that Challoner’s double jeopardy claim was procedurally barred. In doing so, the Court held Challoner had not demonstrated that his attorney was ineffective in failing to raise the double jeopardy issue on direct appeal and therefore had failed to show cause justifying the procedural default. No. 08-1335 (10th Cir. Oct. 14, 2009).
Prior to September 11, 2000, the petitioner, Dale Challoner, along with co-defendants Isaac Ortiz and Sherri Jackson planned to rob the Colorado East Bank & Trust in La Junta, Colorado. Defendants planned to kidnap the bank president and to divert law enforcement by setting fire to a local elementary school. On September 11, defendants set fire to the New Columbian Elementary School then proceeded to the home of Greg Mullins, president of the bank, where Challoner struck him with a gun. At gunpoint, Challoner forced Mullins to drive to the bank where he supplied Challoner with the combination to the safe.
A grand jury convicted Challoner of seven counts of various offenses from the bank robbery plan: Conspiracy to Commit Bank Robbery (Count 1); Attempted Bank Robbery (Count 2); Using, Carrying and Brandishing a Firearm in Relation to a Crime of Violence (Count 3); Damaging Property by Means of Fire (Count 4); Using and Carrying a Destructive Device in Relation to a Crime of Violence (Count 5); Possession of an Unregistered Incendiary Device (Count 6); and Use of Fire or Carrying an Explosive During Commission of Another Felony (Count 14). Challoner was sentenced to a total of 108 months in prison with consecutive sentences of ten years on Count 14, thirty years on Count 5, and twenty-five years on Count 3.
On appeal, Challoner argued that the evidence was insufficient to support his conviction on Count 14. The Tenth Circuit affirmed the decision of the trial court and certiorari was denied by the Supreme Court. Following denial, Challoner filed a § 2255 petition asserting that his trial counsel’s ineffective assistance on Counts 14, 5, and 3 and that he had been “punished multiple times for the same crime” in violation of the Double Jeopardy Clause. For the first time, Challoner argued that his appellate counsel had been constitutionally inadequate by failing to raise the double jeopardy issue on direct appeal. The district court denied the §2255 petition and the Tenth Circuit took review on the sole issue of whether Challoner’s sentence on Count 14 violated the double jeopardy clause.
“[Section] 2255 is not [ordinarily] available to test the legality of matters which should have been raised on appeal.” United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987). Furthermore, “[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998).
In Strickland v. Washington, the Supreme Court established a two-prong test for showing the ineffective assistance of counsel: (1) defendant must show that his counsel’s representation “fell below an objective standard of reasonableness,” and, (2) that there is a reasonable probability that “the result of the proceeding would have been different” had it not been for the counsel’s error. 466 U.S. 668 (1984). However, the “[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment” and the defendant has the burden of overcoming the presumption. Denver v. Kan. State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994); Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000).
In its review, the Tenth Circuit found that Challoner had not met this burden. Though Challoner asserted that his appellate counsel was ineffective because double jeopardy was an issue that should have been raised, courts have found that focusing on arguments that are more likely to prevail on appeal marks “effective appellate advocacy.” Furthermore, while double jeopardy may not have been a frivolous issue to raise on appeal, it is “far from a ‘dead-bang winner’” whose omission would have proved to be insufficient assistance by counsel resulting in prejudice to the defendant. In affirming the district court’s decision, the Court of Appeals stated that it could not reason “that it was objectively unreasonable for Mr. Challoner’s appellate counsel to omit the issue in favor of what he considered stronger arguments.”