Wilborn v. Jones

Dist. Ct. did not err in denying defendant’s habeas petition, challenging his murder conviction on ground that his trial counsel was ineffective, where: (1) counsel told jury during opening statements that co-defendant would state that he was actual shooter; (2) during trial, co-defendant changed his mind and indicated that his testimony would no longer be favorable to defendant; and (3) defendant’s trial counsel, with defendant’s approval in open court, did not call co-defendant to witness stand. Trial counsel’s representation did not amount to deprivation of fair trial, where: (1) trial counsel could reasonably believe initially that co-defendant would testify that he was actual shooter; (2) trial counsel’s failure to present co-defendant to jury did not rise to level of prejudice, where record showed that co-defendant’s testimony had wavered multiple times and could have been hindrance to defendant; and (3) trial counsel had discussed matter with defendant and made record of issue in open court, where defendant had agreed with decision not to call co-defendant as witness.