Makiel v. Butler

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on grounds that his appellate counsel was ineffective when she failed to raise two issues, i.e., trial court’s denial of defense counsel’s request to impeach govt. witness with pending forgery charge and its denial of defense counsel’s attempt to introduce reputation evidence about different govt. witness. Appellate counsel is free to select most effective issues to appeal, and although defendant established that error occurred with respect to both issues, defendant failed to show that said issues were clearly stronger than three issues actually raised by appellate counsel that resulted in remand on one issue and produced dissenting vote as to other two issues. Defendant also failed to establish any violation of right to compulsory process, even though trial court denied defendant’s request to introduce testimony of 11-year old boy, who at time of trial would have testified that someone else was responsible for murder. Record showed that proposed witness recanted his story at post-trial hearing. As such, and because court could look at witness’ proposed testimony and testimony actually given after defendant’s trial, defendant could not establish that witness’ testimony would have been material at his trial.