Charles R. Campbell v. Larry Kincheloe

Charles Campbell appeals the district court’s denial of his petition for habeas corpus. He challenges the imposition of a death sentence following his convictions for aggravated first degree murder. His arguments on appeal concern (1) the propriety of the prosecutor’s closing arguments during the penalty phase of the trial; (2) the admissibility during that phase of evidence of a prior conviction; (3) the effectiveness of the assistance of his counsel; and (4) the constitutionality of Washington’s capital punishment statute. We reject Campbell’s arguments and affirm.

*1456 FACTS AND PROCEEDINGS BELOW

The facts of this case are set forth in detail in State v. Campbell, 103 Wash.2d 1 , 691 P.2d 929, 933 (1984), cert, denied, 471 U.S. 1094 , 105 S.Ct. 2169 , 85 L.Ed.2d 526 (1985), and are only briefly summarized here.

In 1974 Campbell assaulted Renae Wicklund in her home in Clearview, Washington. Diming the assault, Campbell forced Renae to submit to acts of sodomy by holding a knife to the throat of her one-year-old daughter, Shannah. Renae sought help after the attack from a neighbor, Barbara Hendrickson. After a 1976 trial at which both women testified against him, Campbell…

dissenting:

I dissent because I am convinced that the failure of Campbell’s counsel to present evidence of mitigating circumstances during the sentencing proceedings deprived Campbell of his right to effective assistance of counsel.

I do not quarrel with the majority’s statement of the burden that Campbell must sustain under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to prevail on a claim of ineffective assistance. See ante at 1464. Nor do I deny that in some cases failure to present mitigating evidence at sentencing can be a legitimate tactical decision rather than ineffective representation. See Burger v. Kemp, — U.S.-, 107 S.Ct. 3114, 3122-26 , 97 L.Ed.2d 638 (1987). The majority, however, overlooks unique aspects of Washington law that made counsels’ omission in this case a fatal one. Counsel, in effect, signed Campbell’s death warrant.

BACKGROUND

Washington’s capital punishment statute requires a bifurcated proceeding when the death penally is sought. Wash.Rev.Code §§ 10.95.050(1). In the guilt phase, the defendant must be convicted of “aggravated first degree murder,” which is the commission of first degree murder, id. § 2.04.190,…

829 F.2d 1453 Charles R. CAMPBELL, Petitioner-Appellant, v. Larry KINCHELOE, Respondent-Appellee. No. 86-3589. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 7, 1986. Withdrawn from Submission Nov. 14, 1986. Resubmitted June 26, 1987. Decided Oct. 6, 1987. Raymond H. Thoenig, Seattle, Wash., for petitioner-appellant. Kenneth O. Eikenberry, Michael P. Lynch, and Paul A. Silver of Olympia, Wash., for respondent-appellee. On Appeal from the United States District Court for the Western District of Washington. Before SKOPIL and FLETCHER, Circuit Judges, and VUKASIN, * District Judge. SKOPIL, Circuit Judge: 1 Charles Campbell appeals the district court's denial of his petition for habeas corpus. He challenges the imposition of a death sentence following his convictions for aggravated first degree murder. His arguments on appeal concern (1) the propriety of the prosecutor's closing arguments during the penalty phase of the trial; (2) the admissibility during that phase of evidence of a prior conviction; (3) the effectiveness of the assistance of his counsel; and (4) the constitutionality of Washington's capital punishment statute. We reject Campbell's arguments…