Appeal by Virginia Carole Maddox from the denial of her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York (Knapp, J.) entered on July 16, 1986, sought on the grounds of ineffective assistance of counsel and a biased prosecutor at her state trial for murder. Reversed and remanded.
Before: OAKES, CARDAMONE and DAVIS,*fn* Circuit Judges.
CARDAMONE, Circuit Judge:
The facts on this appeal from a denial of habeas relief are rather unusual. Petitioner, Virginia Carole Maddox, is currently incarcerated after being convicted of second degree murder. She had been married to the murder victim -- her estranged husband -- for 26 years and was the mother of their several adult children. One July morning when he insisted on coming into the family home to pick up some his belongings, she shot and killed him. The evidence against her at a state non-jury trial was clear, and the testimony of the 14 expert and several lay witnesses produced by the prosecution supported her conviction for his murder. To sustain her federal habeas application, she contends that her husband's cruelty had pushed her to the perilous edge of sanity, a claim that she says her trial counsel failed to investigate and present sufficiently. The petitioner also contends that the supervising county district attorney prosecuted her for profit. Some small doubt remains -- not over the evidence that petitioner shot and killed her husband -- but whether her claims of extreme emotional disturbance and the presence of a biased prosecutor, which she now urges deprived her of the constitutional right to a fair trial, were adequately considered in the district court.
Convicted of murder in the second degree and criminal solicitation in the second degree in the shooting death of John William Maddox, petitioner was sentenced by the Suffolk County Court of New York to concurrent indeterminate terms of imprisonment of 15 years to life and two to six years on each conviction respectively. After exhausting state remedies, she brought a petition for a writ of habeas corpus before the United States District Court for the Southern District of New York (Knapp, J.) on the grounds that she had been denied effective assistance of counsel and the supervising district attorney had a financial interest in her conviction. The district court denied relief without a hearing. For the reasons that follow, we remand this matter to the district court for it to conduct a hearing on each of those issues.
On July 14, 1980 petitioner shot and killed her husband with a rifle. The only issues at her state trial for this crime were whether petitioner had acted in self-defense or under extreme emotional distress. Mrs. Maddox's testimony before the grand jury was offered as part of her defense. Se stated that after returning to her Long Island home from her night-shift nursing job at 7:00 a.m. and going to sleep, she was awakened by a telephone call from her husband who told her that he wanted to come to the house and pick up some of his belongings. She testified that because she was afraid of him she offered to leave his things on the porch. Because he became angry at her suggestion and threatened to break down the door, she agreed to let him come in to get what he wanted. She then went back to bed and fell asleep. Several hours later her husband drove his automobile into the driveway, blocking her car, she said, in a way that he had on previous occasions when, she claims, he had beaten her. She heard him enter the house and fumble in a drawer on the porch where she said an ice pick was stored. Some months earlier he had been stabbed by an unknown assailant with an ice pick and blamed her for the assault. She came out of her second floor bedroom carrying a rifle to scare him away, her testimony continues, saw him with an ice pick in his hand and then shot him three times as he came towards her.
The prosecution presented testimony by the Suffolk County Medical Examiner that demonstrated from the angles of the bullets that Mr. Maddox had not been facing petitioner when she shot him, but instead was facing his belongings in the living room. The forensic serologist also testified that the deceased when shot grabbed the right side of his neck and fell backwards to the right against a wall behind him. The expert concluded that if the deceased had been holding an ice pick it would have fallen to his right side, not to his left where it was later found by the police.
The victim's son, James, a prosecution witness, stated that the ice pick was kept in the kitchen, not in the front porch drawer where Mrs. Maddox claims she heard her husband get it. The son further testified that a few days prior to the incident, he had left the rifle disassembled. This implied that Mrs. Maddox assembled it with the intention of shooting her husband. The son also said that he had never seen his father strike his mother, contradicting his mother's testimony. Morgan Carey, an acquaintance of his son, testified that Mrs. Maddox had asked him to kill her husband for $30,000. She told him, he said, that she intended to borrow against her husband's life insurance policy to pay him. A lawyer for Mr. Maddox testified that petitioner had inquired about her husband's insurance policy and whether she would remain the beneficiary after their separation agreement was signed. Carey said that Mrs. Maddox paid him a $1,200 advance. Bank records confirm that Mrs. Maddox withdrew $1,200 from her account at the time in question. The prosecution argued that the forensic evidence presented at trial conclusively disproved Mrs. Maddox's claim of self-defense, and that petitioner's hiring of Carey and her reassembling of murder weapon proved the requisite element of intent to establish the commission of murder.
In petitioner's defense, her attorney offered only petitioner's grand jury testimony and three live witnesses. One co-worker testified that Mrs. Maddox was afraid of her husband and two friends testified to her kind, honest and non-violent reputation. The state trial court convicted petitioner of murder and the criminal solicitation of witness Carey. The Appellate Division, Second Department, affirmed without opinion and leave to appeal to the New York Court of Appeals was denied. 58 N.Y.2d 693 (1982). Pursuant to New York Criminal Procedure Law, § 440.10 (McKinney 1983), petitioner sought collateral review of her conviction on the grounds she presently asserts. That application as well as leave to appeal were both denied. Mrs. Maddox then brought the instant habeas application in federal district court pursuant to 28 U.S.C. § 2254 (1982). Although the district court denied her petition without conducting a hearing, it issued a certificate of probable cause to appeal.
When the allegations of a habeas petition, if proved, would entitle a petitioner to relief, a federal court "must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court." Townsend v. Sain, 372 U.S. 293, 312, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). No hearing is warranted when the petitioner's claims are merely "vague, conclusory, or palpably incredible." Machibroda v. United States, 368 U.S. 487, 495, 7 L. Ed. 2d 473, 82 S. Ct. 510 (1962). We believe that petitioner's allegations of ineffective assistance of counsel, if true, would entitle her to habeas relief. Because she was not given an evidentiary hearing in state court, the case must be remanded for a hearing before the district court on this issue. We need not decide the novel question presented by petitioner's second claim, that is, whether the prosecutor's alleged pecuniary interest in Mrs. Maddox's conviction -- without a showing of further misconduct -- would entitle her to a new trial. Instead, this claim is remanded to the district court to determine whether the prosecutor actually had such an interest. We consider petitioner's first claim.
A. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, petitioner must show that her attorney's conduct fell below an objective standard of reasonableness and that the deficient performance prejudiced her defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). There is a "strong presumption" that counsel's conduct was reasonable and that any challenged action "'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)). "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690. "[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." Id. at 691. If an unreasonable error is shown, one seeking to establish this claim must further prove ...