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Date: 10-07-2021
Case Style:
United States of America v. FRED LLOYD HOLDER
Case Number: 06-7071
Judge: Carlos F. Lucero
Court: UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Denver, CO - Criminal defense lawyer represented defendant with murder in the second degree and for assaulting, resisting, or impeding a federal officer while in the performance of official duties charges. He now files a petition for habeas relief alleging claims of ineffective assistance of counsel.
We have previously recounted the factual history of this case in some
detail. See United States v. Holder, 256 F.3d 959 (10th Cir. 2001) (affirming
Holder’s conviction on direct appeal) (“Holder I”); Holder II, 410 F.3d 651
(reversing the denial of Holder’s § 2255 motion and remanding for an evidentiary
hearing). We set forth the facts of this case and its procedural history as they
pertain to Holder’s ineffective assistance of counsel claim.
A
In the late 1990s, the BC Wetlands Partnership, a group of duck hunting
enthusiasts, purchased an easement that allowed them to conduct limited
recreational activities on a federal wetlands parcel. Kenneth Swift, a federal
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employee of the Natural Resources Conservation Service, oversaw the sale of this
easement. Holder’s family owned property adjacent to the wetlands parcel, and
used their property to raise cattle.
Because livestock were forbidden on the wetlands under the terms of the
easement, BC Wetlands partners, including David Pickens, sought to prevent
Holder’s cattle from entering the parcel. These attempts caused serious
disagreement between Holder and the BC Wetlands Partnership. In response to
the cattle problem, the Natural Resources Conservation Service agreed to
construct a fence along the property line. On September 23, 1999, Pickens
accompanied Swift on a four-wheeled vehicle and began marking the property
boundary with flags in preparation for construction. While engaged in this task,
Swift and Pickens spotted two men on horseback. Recognizing one of the men as
Holder, Pickens told Swift to stay behind him. Pickens had a pistol in his holster,
which he slid to his back before approaching the pair on horseback. What
happened next is disputed.
At trial, Holder testified that he was hog hunting on his property with
George David Smith on that same day. Holder stated he was carrying a shotgun
with him, and removed the gun from its scabbard prior to his encounter with
Pickens because he was afraid it would fall out while he was crossing a creek.
When Holder encountered Pickens, the two had a conversation in which,
according to Holder, Pickens kept “a rambling and a raging and slinging his hands
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and cussing.” Holder could see that Pickens had a gun. During the conversation,
Holder testified, he stood across from Pickens and kept his gun pointed “down
towards the ground.” At some point, Pickens began to move his hand toward his
pistol, and Holder told him, “Fellow, don’t you go for that gun.” When Pickens
continued to move his hand “faster” toward the gun, Holder stated that he loaded
a shell into his shotgun. According to Holder, Pickens then proceeded to remove
his pistol from its holster and pointed it at Holder. Only then, Holder testified,
did he fire a shot at Pickens. Holder explained to the jury that he did so because
he was afraid “[Pickens] was going to kill me.”
Swift’s testimony at trial differed from Holder’s in important respects.
Swift testified that when he saw Holder and Pickens arguing about thirty feet
away from himself, Holder was already pointing a shotgun at Pickens. At some
point during the argument, Pickens began to fumble for his pistol, which was
located toward the center of his back. According to Swift, Holder then yelled, “I
told you never pull a gun on me again,” and shot Pickens. Swift clearly stated
before the jury that Pickens “never got [his] gun out of the holster” before Holder
fired.
Smith, the third and final witness to the shooting, was not called to testify
at trial. In his testimony before the grand jury, Smith corroborated much of
Holder’s version of events. Smith testified that he was hog hunting with Holder
on the morning of the shooting. While on horseback, the two men came across a
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four-wheeled vehicle. Smith told the grand jury that Holder’s gun had been in a
scabbard shortly before this point. He guessed that Holder pulled the gun out of
the scabbard either around the time they passed the four-wheeled vehicle or
afterwards, but testified that he did not know for sure when Holder drew the gun.
Soon after seeing the four-wheeled vehicle, Holder and Smith encountered
Pickens and Swift. Smith, who was riding ahead of Holder, first exchanged
greetings with Pickens. Immediately afterwards, Holder spoke up and accused
Pickens of cutting Holder’s fences. Smith testified:
And then right after that, just kind of as soon as [Pickens] said, no, I
didn’t, I seen him reach with his right hand back. And then there
was a little bit of a hesitation, I don’t know what, and then he jerked
out a gun. I don’t know if his arm was extended. And just as soon as
he jerked it out – it all happened just like that – Fred shot. It just
happened just like that.
Later in his grand jury testimony, Smith confirmed that he saw Pickens’ pistol
come out of the holster before Holder fired. According to Smith, “[Pickens]
reached kind of slow and then there was a hesitation. That’s – that’s kind of –
just a hesitation for a moment. And then he come out and then [Holder’s
shotgun] shot.” Smith also testified that he did not hear Holder load his shotgun
prior to shooting Pickens. When the government asked, “So . . . the shell was
already in the barrel ready to fire?” Smith responded, “I would say so. I know
that may look bad but I didn’t hear it.”
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At several points in his testimony before the grand jury, Smith expressed
his view that Holder acted in self defense. He stated, “Fred [Holder] done the
only thing, in my belief, that he could have done. And I believe that with all my
heart. I believe if Fred hadn’t have shot, I believe he could be the one that’s dead
right now.” At another point, Smith testified, “I believe if Fred hadn’t have fired,
he could have been the one dead and maybe me too.”
Holder was charged in federal district court with first degree murder of an
individual assisting a federal employee in the performance of his duties, and
intimidation of a federal employee with a deadly weapon. See 18 U.S.C. §§
1111(a), 1114(1), 111. Holder admitted to shooting Pickens, but claimed that he
did so out of fear for his own life. Thus, the central issue at trial was whether
Holder shot Pickens in self-defense. As previously noted, Smith was not called to
testify. During the trial, the government described the case as a “swearing match”
between Holder and Swift, and stated during closing argument:
Ladies and gentlemen, this case really does boil down to this. Do
you believe Ken Swift or do you believe the defendant?
If you believe Ken Swift, then the defendant is guilty because the
gun never came out and the defendant shot him in cold blood.
Urging the jury to believe Swift, the prosecutor then asked the jury, “[W]ho has a
reason to fabricate a story to you and lie? . . . It’s between Ken Swift and the
defendant. Who has the motive to lie?”
B
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Holder was convicted by the jury of obstructing a federal officer and of
second degree murder, and was sentenced by the lower court to 168 months’
imprisonment. We affirmed his conviction on direct appeal. Holder I, 256 F.3d
959. Holder then filed a 28 U.S.C. § 2255 habeas petition alleging ineffective
assistance of counsel, which the district court denied without a hearing. Holder
appealed this denial. Holder II, 410 F.3d 651.
In Holder II, we held, based on our review of the trial transcript, that
“Holder has carried his burden to ‘overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.’”
410 F.3d at 655 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984))
(additional internal quotations omitted). We explained, “The potential for the
testimony of Smith to have tipped the balance in favor of a finding of self-defense
is apparent under the circumstances here, where his testimony, if believed, would
have bolstered that of the defendant and refuted that of the prosecution’s witness,
Swift.” Id. at 655. Moreover, because “the jurors knew of Mr. Smith’s presence
at the scene, as it had been mentioned by both Swift and Holder . . . . his absence
from trial surely must have been noticed.” Id. at 656. We remanded for an
evidentiary hearing on Holder’s ineffective assistance of counsel claim with the
following guidance to the district court:
Our record offers no explanation for counsel’s decision not to call
Mr. Smith. There may have been sound, tactical reasons not revealed
by the record. But on this record we cannot rule out other
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possibilities, such as that there may have been no reason at all but
instead a failure to investigate which left counsel unfamiliar with
Smith’s version of the events, or a failure to secure Smith’s
appearance at trial. Such a crucial decision must be explained before
a court can draw any conclusions on the ineffectiveness claim.
Our disposition is compelled, we conclude, by the totality of the
circumstances before us. The crucial issue in the trial of the murder
charge was the credibility of conflicting testimony of two witnesses
and the weighing of their testimony in the circumstances of the tragic
confrontation resulting in the death of Mr. Pickens. We are
convinced that the circumstances made critical the holding of an
evidentiary hearing to develop the thoroughness of trial counsel's
investigation, preparation, and the basis of the decision about calling
Mr. Smith as a witness.
Id.
Upon remand, the district court held an evidentiary hearing on Holder’s
ineffective assistance of counsel claim, at which both of Holder’s trial counsel
testified. Hack Welch, lead counsel for Holder, testified that the government
gave him copies of Smith’s testimony before the grand jury as well as copies of
Oklahoma State Bureau of Investigation (“OSBI”) reports documenting interviews
with Smith. Welch also interviewed Smith directly. During the evidentiary
hearing, Welch testified that he understood from these materials and the interview
that Smith’s testimony was “[e]xtremely favorable to [Holder].” He stated, “With
regard to the shooting . . . what [Smith] saw, what his testimony would have been,
what he saw was that it was in self-defense, that Pickens went for his gun first.
[Holder] had no choice.”
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Welch’s sole reason for choosing not to call Smith as a witness was his
concern that the government would impeach Smith’s testimony by showing that
Holder was connected to Smith’s past conviction for growing marijuana. Welch
believed that there was a connection between Smith’s 1992 conviction and Holder
because Holder himself had been investigated concerning marijuana in August
1993. Welch testified that according to his best recollection, he never recognized
the full year difference in the dates of Smith’s conviction and of the investigation
of Holder. He admitted that he was probably prevented from catching the gap in
dates by his “looking over [the information] hurriedly.” In addition, Welch
explained that he remembered materials provided to him by the government
showing that Holder was seen in the same field in which Smith was growing
marijuana. When Welch asked Holder whether he had any connection with
Smith’s conviction, however, Holder “denied any involvement in the marijuana.”
Notwithstanding Holder’s denial, Welch admitted that he did not thoroughly
investigate the existence of a conjectural criminal connection between Smith and
Holder. Nor did he file, or attempt to file, a motion in limine to exclude any
evidence of this connection, and could not recall conducting any research into the
Federal Rules of Evidence to determine whether information regarding such a
connection could even be introduced by the government.
Because Welch did not investigate the supposed criminal connection
between Holder and Smith, he failed to discover that Smith had been charged for
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conspiracy to cultivate marijuana along with a co-defendant named Robert Bailey.
In an unpublished disposition of this court, we reversed the conspiracy conviction
with respect to Smith and reversed Bailey’s conviction on all counts. United
States v. Bailey, Nos. 93-9009, 93-7009, 1993 WL 525667 (10th Cir. Dec. 17,
1993). We held, with respect to Smith’s conspiracy conviction, that the
government failed to “proved beyond a reasonable doubt the existence of one or
more ‘unknown’ coconspirators” in addition to failing to prove a conspiracy
between Bailey and Smith. Id. at *5. This decision, too, was not discovered by
Welch.
At the time Welch made his decision not to call Smith, Welch knew of no
probable testimony by Smith that would be damaging to Holder, and thought that
Smith had a “very impressive personality” that would make him “a great witness.”
Welch testified that he felt “intimidated” in federal court, and that this feeling
prevented him from sitting down and fully thinking through his decision not to
call Smith.
Vester Songer, Holder’s second trial counsel, also testified at the
evidentiary hearing. Songer explained that, as lead counsel, Welch “really ma[de]
the calls in most instances” with respect to Holder’s case. However, Songer
reached an independent decision that Smith should not be called to testify based
on the possible connection of Holder to Smith’s marijuana-related conviction.
Songer did not conduct any independent investigation of the postulated incident
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and based his decision entirely on the information given to Welch by the
government.
Following the hearing, the district court found that Holder had received
ineffective assistance of trial counsel and granted his § 2255 petition for habeas
relief. The court found that the record before it did “not establish, much less
suggest, that there was any connection between Holder and Smith’s marijuana
cultivation,” and that “this information was available to Welch and Songer from a
rudimentary examination of the discovery provided by the Government.” The
court also found:
Smith’s grand jury testimony was consistent with Holder’s trial
testimony on the key issue of whether Pickens pulled his pistol on
Holder prior to Holder shooting. Smith testified Pickens reached for
his pistol and jerked it out before he was shot by Holder. Smith’s
testimony at trial – assuming a consistency with his grand jury
testimony – would undoubtedly have been powerful, corroborating
evidence of a shooting in self-defense. As this prosecution boiled
down to a quintessential swearing match between Holder and Swift
(as buttressed by the Government’s expert testimony), counsel’s
failure to present Smith’s corroborating eye-witness testimony,
combined with counsel’s failure to seek a pretrial ruling on the
admissibility of the aforementioned marijuana cultivation
information, constitutes ineffective assistance of counsel.
In addition, the district court found that counsel’s failure to consult with or
employ expert witnesses to challenge the testimony of the government’s forensic
pathology expert about the likelihood that Pickens had drawn his pistol when shot
constituted ineffective assistance of counsel. Determining that Holder had
established both deficient performance and prejudice under Strickland, 466 U.S.
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668, the court granted habeas relief with respect to Holder’s conviction of murder
in the second degree in violation of 18 U.S.C. §§ 1111(a) and 114(1). The
government appeals.
II
An ineffective assistance of counsel claim presents a mixed question of fact
and law. Boltz v. Mullin, 415 F.3d 1215, 1221 (10th Cir. 2005). We review the
district court’s factual findings for clear error and its legal conclusions de novo.
Id. To prove ineffective assistance of counsel, a defendant must show, by a
preponderance of the evidence, that (1) counsel’s performance fell below an
objective standard of reasonableness, and (2) defendant suffered prejudice, such
that there is a reasonable probability that, but for counsel’s errors, the outcome of
the trial would have been different. Strickland, 466 U.S. at 688, 693-94. “The
proper measure of attorney performance is that of reasonably effective assistance
under prevailing professional norms, considering all of the surrounding
circumstances.” Bryan v. Mullin, 335 F.3d 1207, 1217 (10th Cir. 2003) (en
banc). We must “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. (quotation and citation
omitted). In order to be constitutionally ineffective, a “strategic decision must
have been completely unreasonable, not merely wrong.” Romano v. Gibson, 278
F.3d 1145, 1153 (10th Cir. 2002) (quotation and citation omitted).
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“Counsel . . . may make a reasonable decision that investigation is
unnecessary.” Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999). However,
the failure to investigate a potential defense strategy without any strategic basis
for doing so may constitute ineffective assistance, as the Supreme Court
explained in Strickland:
[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
466 U.S. at 690-91 (emphasis added). We assess counsel’s performance from
counsel’s “perspective at the time of that performance, considered in light of all
the circumstances.” Medina v. Barnes, 71 F.3d 363, 368 (10th Cir. 1995). Thus,
in considering Holder’s claim that trial counsel were ineffective for failing to call
Smith as a witness, we determine whether the investigation supporting Welch’s
and Songer’s decision not to call Smith was reasonable considering the
circumstances at the time of investigation. See also Holder II, 410 F.3d at 656
(“We are convinced that the circumstances made critical the holding of an
evidentiary hearing to develop the thoroughness of trial counsel’s investigation,
preparation, and the basis of the decision about calling Mr. Smith as a witness.”).
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We are bound by the district court’s findings that the record before it did
not suggest any connection between Smith’s 1992 conviction and Holder, and that
the lack of connection would have been evident upon a “rudimentary
examination” of discovery evidence provided to counsel by the government.
Appellant does not challenge these findings as clearly erroneous.
We conclude, as did the district court, that failure to conduct even a
rudimentary examination of discovery documents cannot be considered an
objectively reasonable investigation. This is particularly true when it underlies a
decision as crucial as the one at issue here: namely, whether to call a witness
whose story largely corroborated the defendant’s, and who was the only surviving
witness to the alleged murder other than (1) the defendant himself and (2) an
alleged victim of a separate crime being tried before the same jury. At the
evidentiary hearing, Welch and Songer freely admitted that the only basis for
their decision not to call Smith was their fear of Smith’s potential impeachment
by way of a non-existent connection between Smith’s marijuana conviction and
Holder. Because that testimony reveals that counsel did not conduct a reasonable
investigation into the only basis for their decision, counsel are not entitled to a
presumption that their decision was guided by a sound strategic motive. See
Williams v. Taylor, 529 U.S. 362 (2000) (holding that counsel’s failure to
uncover and present significant mitigating evidence at sentencing could not be
justified as a tactical decision to focus on Williams’ voluntary confessions,
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because counsel had not “fulfill[ed] their obligation to conduct a thorough
investigation of the defendant’s background.”).
Despite the unreasonable nature of counsel’s underlying investigation, and
counsel’s express testimony on the lack of adequate strategic motive, we must
still determine whether counsel’s performance constituted objectively reasonable
representation under the totality of circumstances. “[E]ven though counsel’s
strategy was ill-informed and thus does not qualify for the virtually
unchallengeable presumption of reasonableness, a court reviewing the record
before it might still conclude that counsel performed in an objectively reasonable
manner.” Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002); see also
Sallahdin v. Mullin, 380 F.3d 1242, 1250-51 (10th Cir. 2004) (upholding as
constitutional counsel’s decision not to call an expert witness, despite counsel’s
failure to identify a strategic basis for that decision, when “the record on appeal
supplies at least three reasons why it would have been constitutionally reasonable
for counsel not to introduce this evidence”) (internal quotation and citation
omitted).
In urging us to hold that Holder’s counsel performed in an objectively
reasonable manner when they failed to call Smith, the government points to four
prior statements that it alleges would have rendered Smith’s testimony “harmful
to the defense”: (1) Holder testified that he took his shotgun out of the scabbard
when he and Smith crossed the creek, but Smith stated that the shotgun was in the
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scabbard after they crossed the creek and until shortly before they encountered
the four-wheeled vehicle; (2) Holder testified that he loaded a shell into the
shotgun right before shooting Pickens, but Smith testified that he did not hear
Holder load the shotgun at that time and surmised a shell was probably already in
the barrel; (3) Smith testified to the grand jury that he did not fear Pickens when
he and Pickens were exchanging friendly greetings immediately prior to Holder’s
confrontation with Pickens; and (4) Smith stated to OSBI investigators that he
“did not feel in danger” when he saw Pickens “reach behind his waist, real slow,
with his right hand [and bring it back around] . . . holding a gun.”
With respect to the first reason, Smith testified before the grand jury that he
assumed Holder pulled the shotgun out of the scabbard either around the time
they passed the four-wheeled vehicle or afterwards. However, Smith also
explicitly stated that he did not see Holder draw the gun and did not know for
sure when that happened. Because Smith’s testimony was ambiguous and the
purported differences concern non-determinative details, we do not agree with the
government that this testimony would necessarily “seriously undermine[]”
Holder’s credibility before the jury. We reach the same conclusion with respect
to Smith’s statement that he did not hear Holder load the shotgun. We also see no
reason why Smith’s lack of fear while exchanging greetings with Pickens would
necessarily cause the jury to disbelieve Holder, as Smith’s impressions do not
shed direct light on Holder’s state of mind at the time of the shooting. Moreover,
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The dissent presents a detailed analysis of these potential discrepancies,
2
but declines to consider them in the context of the entire trial. By failing to call
Smith, Holder’s counsel rested the entire defense on the uncorroborated testimony
of the defendant himself, a fact that the government eagerly seized upon in its
closing statement. We thus cannot agree that defense counsel’s failure to call an
available third-party witness who had unflaggingly asserted his belief that “if
[Holder] hadn’t have fired, he could have been the one dead and maybe me too”
was objectively reasonable.
-17-
Smith’s statement that he did not feel in danger when Pickens pointed the gun at
Holder neither precludes the possibility that Holder himself felt fear at that point,
nor the truth of Smith’s later testimony, upon further reflection on the incident,
that Smith believed both he and Holder would have been killed by Pickens if
Holder had not shot Pickens.
These statements, individually and cumulatively, fail to persuade us that
Holder’s counsel’s decision not to call Smith was objectively reasonable. To the
extent these statements are inconsistent with Holder’s testimony – and, as
explained above, we do not think all of them are – they are minor discrepancies.
In fact, given the fraught nature of the shooting, the speed at which it unfolded,
and the limitations of human memory, it would strike us as suspicious if two
individuals, testifying from their own recollections without prior collusion or
coaching, were to recite identical stories devoid of any inconsistencies. More
importantly, the discrepancies in the testimonies of Holder and Swift are vastly
outweighed by major, material, and beneficial similarities. Accordingly, we hold 2
that the failure to call Smith, based on counsel’s unreasonable investigation and
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The government also introduced testimony by expert witnesses in an 3
attempt to persuade the jury that Pickens’ gun never left its holster and did not
fall to the ground as Holder testified. However, none of the experts established
that Pickens had not drawn his pistol when Holder shot. Iris Dalley, a criminalist
at the OSBI, stated that she found no blood consistent with a cone-shaped spray
pattern on Pickens’ sleeve, which she would have expected to find if Pickens’
sleeve had been within 18 to 24 inches from the wound. However, she also
testified that she could not determine the size of the cone in this particular case
and gave no opinion on whether Pickens had indeed drawn his gun. Dalley
further noted that Pickens’ gun did not have any visible traces of soil, but also
stated that she drew no conclusions about “where or when [the gun] might have
been on the ground.” The other experts similarly failed to give conclusive
testimony.
The government suggests that “[f]or self-defensive purposes, it would not 4
be decisive whether Pickens was merely attempting to draw his pistol or had
nearly completed his draw,” but cites no authority for its argument on this point.
In light of the facts and arguments presented to the jury in this case, we do not
think a reasonable juror would find it irrelevant whether Pickens had drawn his
gun and fixed it on Holder prior to the shooting.
-18-
lack of sound strategy, “fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688.
We also conclude that Holder has established prejudice by showing “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. As the district
court correctly noted, the government presented its case as a “quintessential
swearing match” between Holder and Swift. Smith’s testimony that Pickens 3
drew his pistol before Holder shot Pickens would have provided powerful
corroborating evidence for Holder’s claim of self defense. As we stated in 4
Holder II, “The potential for the testimony of Smith to have tipped the balance in
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-19-
favor of a finding of self-defense is apparent under the circumstances here, where
his testimony, if believed, would have bolstered that of the defendant and refuted
that of the prosecutions’ witness, Swift.” 410 F.3d at 655; see also Snow v.
Sirmons, 474 F.3d 693, 729 (10th Cir. 2007) ( “[W]e are . . . hard pressed to
understand how counsel’s failure to call [individuals whose testimony would
support the innocence of the defendant and would not be cumulative of evidence
already presented] as trial witnesses . . . could be construed as reasonable trial
strategy.”). We also noted that because “the jurors knew of Mr. Smith’s presence
at the scene, as it had been mentioned by both Swift and Holder . . . . [Smith’s]
absence from trial surely must have been noticed.” Holder II, 410 F.3d at 656.
With the addition of Smith’s corroborating testimony, there is a reasonable
probability that the jury would have found that the government failed to prove
beyond a reasonable doubt that Holder’s shooting of Pickens was not an act of
self-defense. See Strickland, 466 U.S. at 693-94. Accordingly, Holder has shown
that he received ineffective assistance of trial counsel.
Outcome: Because we conclude that Holder has established ineffective assistance of
trial counsel due to counsels’ failure to call Smith as a witness, we do not reach
the question whether failure to consult or employ expert witnesses also deprived
Holder of his right to effective assistance of counsel. We AFFIRM the decision
of the district court.
Plaintiff's Experts:
Defendant's Experts:
Comments: