Ford v. McKinney
ORDER re 7 Petition for Writ of Habeas Corpus. Mr. Ford's application for habeas relief under 28 USC Section 2254 is denied. See text of Order. Signed by Senior Judge Donald E OBrien on 6/18/13. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
GARY CHRISTOPHER FORD,
JAMES MCKINNEY, Warden,
Currently before the Court is the Plaintiff’s Petition
Plaintiff, Gary Christopher Ford [hereinafter Mr. Ford], is
currently incarcerated at the Fort Dodge Correctional Facility
pursuant to a conviction for first-degree robbery and felon in
possession of a firearm.
Docket No. 1.
The parties appeared
telephonically for a hearing on February 28, 2013.
listening to the parties’ arguments, the Court took the
matters under consideration and now enters the following:
As set forth in the Defendant’s brief, the basic factual
background of this case is as follows:
Mr. Ford and Adibey Habhab were staying at the Fort Dodge
Quality Inn the night of April 18, 2007, in a room rented by
Trial Tr. p. 152, line 1 - p. 158, line 17; p.
170, lines 14-23; PCR Appendix Citation [hereinafter “App.”]
22-28, 40. A security tape showed Petitioner leaving room 135
at 8:31 p.m. wearing a long brown shirt and white shoes.
Trial Tr. p. 281, line 14 - p. 289, line 22; App. 53-61; see
also State’s Trial Ex. 47.
At 8:50 p.m., an armed man robbed
“Karen’s Wine and Spirits” while wearing a nylon-stocking
mask; knee-length brown T-shirt; long, cuffed blue jeans; and
white Nike flat-bottomed tennis shoes with brown laces. Trial
Tr. p. 124, line 1 - p. 128, line 16; App. 15-19; State’s Exs.
1, 2, 3, 4, 5, 6.
See also, Ford v. State, 2010 WL 4105619,
1 (Iowa Ct. App. 2010).
He left in a dark, mid-size car.
Trial Tr. p. 129, line 24 - p. 130, line 22; App. 20-21.
There was trial testimony that it takes two minutes and
fifteen seconds driving at legal speeds to get from the liquor
store to the Quality Inn.
Trial Tr. p. 301, lines 5-24; App.
The Quality Inn security tape shows Mr. Ford returning to
his room at approximately 8:53 p.m. to 8:55 p.m., in a long
brown shirt, jeans and white shoes.
- p. 293, line 5; App. 61-65.
Trial Tr. p. 289, line 23
See also State’s Trial Ex. 47.
The hotel security tape shows that at 9:00 p.m., Adibey Habhab
returns, and at 9:25 p.m. both she and Mr. Ford depart the
Trial Tr. 295, line 12 - p. 299, line 12; App. 66-70.
See State’s Trial Ex. 47.
The following morning, a security camera at a convenience
store next door to the Quality Inn shows Mr. Ford wearing
white shoes with a Nike “swoosh,” knee-length brown t-shirt,
and a brown hooded sweatshirt.
Trial Tr. p. 178, line 4 - p.
182, line 13; App. 41-45.
Fort Dodge police detective Brad Wilkins viewed security
camera footage taken at the liquor store that had been robbed.
Officer Wilkins thought he recognized Mr. Ford as the suspect
shown robbing the liquor store.
161, line 18; App. 29-31.
Trial Tr. 159, line 11 - p.
He took particular note of the
assailant’s oversized brown t-shirt, baggy blue jeans, and
white shoes with a “swoosh” and brown laces.
162, lines 6-24; App. 32.
Trial Tr. p.
He located Adibey Habhab’s black
Monte Carlo at the Quality Inn and eventually went into the
Trial Tr. p. 164, line 8 - p. 165, line 12, p. 167,
lines 10-22; App. 34-35, 37.
Inside, he spotted Mr. Ford, wearing a hooded sweatshirt,
knee-length brown t-shirt, and brown-laced Nike shoes.
Tr. p. 167, line 5 - p. 168, line 13; p. 214, lines 13-22;
App. 37-38, 47.
Officer Wilkins called Mr. Ford, who rushed
into his room, locked the door behind him, and remained there
for about ten minutes (though he did peek out another exit
Trial Tr. p. 168, line 14 - p. 170, line 2; App.
A subsequent search yielded a black handgun.
Tr. p. 183, lines 10-23; App. 46.
Officer Wilkins reported
Mr. Ford told police he had been at a “lady’s” house with
Adibey all day and all night and had never left.
216, line 19 - p. 217, line 6; App. 48-49.
Trial Tr. p.
In an offer of
proof, Officer Wilkins reported that Adibey Habhab said she
and Mr. Ford had been at the hotel the entire night and had
not left until after the time of the robbery.
Trial Tr. p.
239, line 3 - p. 240, line 12; App. 51-52.
On May 31, 2007, Mr. Ford was charged by the State of
Iowa with Robbery in the First Degree, Possession of a Firearm
as a Felon, and as a Habitual Felon.
From the time of the Mr.
However, a conflict of interest arose
between Mr. Ford and another one of the Mr. Koll’s clients.
Mr. Koll had to withdraw as the defendant’s counsel.1
August 8, 2009, attorney Wendy Samuelson was appointed to
represent Mr. Ford.
On August 28, 2007, ten days after Ms. Samuelson was
appointed to Mr. Ford’s case, a jury trial commenced.2
August 29, 2007, the jury found Mr. Ford guilty of Robbery in
the First Degree.
Following his conviction for robbery, Mr.
Ford plead guilty to Possession of a Firearm by a Felon
pursuant to an Alford plea. The Iowa Court sentenced Mr. Ford
to 25 years on the Robbery charge, and five years on the
firearm charge, with the sentences to run concurrent with each
On October 4, 2007, Mr. Ford filed a notice of appeal.
The Iowa Supreme Court dismissed his appeal as frivolous on
According to the record, this conflict arose when Mr.
Ford talked to the police against Mr. Koll’s advise, and
implicated another of Mr. Koll’s clients.
In those ten days, Ms. Samuelson attempted to convince
Mr. Ford to allow her to continue the case, but he refused.
May 1, 2008.
Order, Iowa Supreme Court, No. 07-1739, May 1,
On July 30, 2008, Mr. Ford filed an application for post
conviction relief, the Iowa state court precursor to a habeas
Judge Bice, an Iowa state court judge sitting in
Webster County, Iowa, heard arguments on Mr. Ford’s post
conviction relief case July 16, 2009. Attorney James McCarthy
represented Mr. Ford.
At the time of hearing, Mr. McCarthy narrowed the scope
of the post conviction application to two primary arguments.
Mr. McCarthy argued that Mr. Ford had ineffective assistance
of counsel because his trial counsel failed to file and
present a perceived alibi defense, and trial counsel failed to
follow up and investigate the perceived alibi defense.
application for post conviction relief.
Judge Bice stated:
The record in the underlying case indicates
that Mr. Ford was competently represented
by Jim Koll of the Public Defender's Office
from the time of initial appearance
(4/20/07) until the time of this counsel's
The Iowa Supreme Court also allowed Mr. Ford’s
appellate counsel to withdraw because of the frivolous nature
of his appeal.
withdrawal from this case on August 8,
2007. Mr. Koll testified in the present
postconviction relief matter by deposition.
Mr. Koll testified that he considered the
proposed alibi defense and the giving
notice of same but that he was not
convinced that, because of inconsistencies
and time line problems, this defensive
tactic was valid. He shared these concerns
with Wendy Samuelson, who was eventually
appointed to represent Mr. Ford at trial.
Ms. Samuelson's appointment was made on
August 20, 2007. The matter proceeded to
trial on August 28, 2007. Ms. Samuelson
relief. Although pressed for time due to
her appointment as Mr. Ford's trial counsel
on short notice prior to the trial, she
worked diligently and thoroughly during the
impending time frame to prepare for Mr.
She met with Mr. Ford on
nearly a daily basis to prepare for trial.
Docket #17, Att. 1, p. 5.
Judge Bice also cited testimony
gathered from a hearing on August 23, 2007.
attorney, made a record in open court.
At that pre trial
Ms. Samuelson stated
that she felt it was in Mr. Ford’s best interest to continue
the trial date, but Mr. Ford refused to continue the trial and
questioned Mr. Ford directly, and Mr. Ford confirmed he wanted
to proceed to trial not withstanding his counsel’s advice.
Relying on that record, Judge Bice stated:
Given this record, this Court FINDS that
notwithstanding the advice of his counsel,
was that of Applicant/Defendant.
being the case, Mr. Ford cannot now be
heard to complain of
his counsel not
having spent the time to further develop
defense counsel's decision not to pursue
the alibi defense, given the potential
problems associated with this possible
tactic, do not rise to the level cf
ineffect1ve assistance of counsel.
Fryer v. State, 325 N.W.2d 400 (Iowa 1982).
It is axiomatic that an unsuccessful
defense does not mean that counsel was
ineffective. See Hall v. State, 360 N.W.2d
836 (Iowa 1985).
The Court finds that
neither Jim Koll nor Wendy Samuelson
breached an essential duty as defense
counsel to Mr. Ford. Their performance was
See Snethen v. State, 308
N.W.2d 11, 14 (Iowa 1981). In that regard,
the Court further FINDS that Applicant
herein has failed to meet his burden of
proof by a preponderance of the evidence...
Ms. Samuelson directly and Mr. Koll
indirectly indicate that raising the alibi
defense would not have made any difference
in the outcome of the trial and the Court
so FINDS in that regard. As a result, the
postconviction relief must fail.
Docket #17, Att. 1, p. 7-8.
Mr. Ford then appealed his application for postconviction
On October 20, 2010, the Iowa Court of Appeals
affirmed Judge Bice’s ruling.
The Court of Appeals analyzed
the testimony of Mr. Ford’s trial counsel, stating that:
Samuelson stated, “[Koll's] investigator
had looked into the alibi defense and it
didn't ”time-wise, the witnesses weren't
able to make it tight enough for it to be
real effective.” Samuelson also recalled
conversations she had with Ford about
As to one witness, Adibey
Habhab, who claimed to be with Ford “all
day and night” on the date of the robbery,
Samuelson testified that Ford agreed prior
to trial that Habhab was now estranged from
him and “too much of a loose cannon” to put
before the jury.
proceeding to trial as scheduled, rather
than agreeing to a continuance, prevented
her from presenting the alibi defense.
Ford v. State, 791 N.W.2d 430 (Iowa Ct. App. 2010).
footnote, the Appeals Court noted:
Habhab stated she and Ford stayed at the
hotel the entire night.
conflicts with Ford's assertion that he and
Habhab were at another lady's house all day
Both statements further
conflict with Bonita Urich's purported
statement that Ford was at her house only
after 9:00 p.m. Video security tapes show
Habhab and Ford coming and going to and
from the hotel throughout the evening.
reiterated Judge Bice’s reliance on trial counsel’s testimony,
[Ms. Samuelson] testified that she urged
Ford to agree to a continuance, as she did
not feel she would have sufficient time to
further investigate and depose witnesses
beyond the work Ford's previous attorney,
Koll, had accomplished: “[M]y understanding
depositions were taken of the defense
witnesses, that, um, the State would then
have the opportunity to depose any defense
Adibey had already been
deposed, but Bonita Urich wouldn't have
Those things would not have
coincided very well with Mr. Ford's wish to
go to trial within a week.
Ford, 791 N.W.2d at 430.
The Appeals Court concluded that
“[w]e agree with the post-conviction court's fact findings and
agree with its conclusion that trial counsel breached no
Ford, 791 N.W.2d at 430.
On March 7, 2011, Mr. Ford filed a pro se petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus with this Court.
Docket # 1.
His initial petition included an application to
proceed in forma pauperis.
Docket No. 1.
appointment of counsel.
On October 17, 2011, the Court
granted Mr. Ford’s application to proceed in forma pauperis
and to appoint counsel.
The Court appointed attorney Douglas
Roehrich to represent Mr. Ford.
On February 2, 2012, Mr. Roehrich filed an application to
withdraw as Mr. Ford’s counsel, stating that “[t]he grounds
raised by the Petitioner in his 2254 Petition are frivolous,
and the undersigned has found no nonfrivolous grounds for
On September 26, 2012, hearing was held
continue to represent Mr. Ford.
Mr. Ford filed a brief on
October 5, 2012, and the state responded on October 19, 2012.
In his brief, Mr. Ford renews his argument that trial
counsel failed to perform an essential duty by neglecting to
pursue an alibi defense.4
The Court notes that Mr. Ford’s pro se filings discuss
several other issues. Additionally, during the hearing, Mr.
Ford argued that certain jurors at his trial knew the
prosecutor, Ms. Samuelson’s Motion for a Mistrial should have
been granted, and that the evidence did not support the
argument that someone could make it from the liquor store to
the hotel in three minutes. However, the only issue exhausted
28 U.S.C. § 2254(a) provides that a federal court shall
entertain an application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.
A Federal court's review of a State court decision under
§ 2254 is deferential.
(8th Cir. 2003).
Lomholt v. Iowa, 327 F.3d 748, 751
A State court decision on the merits should
not be overturned unless it:
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
by the lower courts is the ineffective assistance of counsel
claim. Under the exhaustion requirement, a habeas petitioner
challenging a state conviction must first attempt to present
his claim in state court. Harrington v. Richter, 131 S. Ct.
770, 787 (2011) citing 28 U.S.C. § 2254(b; see also Clay v.
Accordingly, the ineffective assistance claim relating to
trial counsel’s failure to explore or call alibi witness is
the only issue this Court can consider. Additionally, as to
the travel distance from the hotel to the liquor store, the
Court notes that evidence came in at the trial that a trip
from the liquor store to the hotel took two minutes and
fifteen seconds. See Trial Tr. p. 301, lines 5-24; App. 71.
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
application of Supreme Court law if it makes "a conclusion
opposite that reached by [the] Court on a question of law or
. . . decides a case differently than [the] Court has on a set
of materially indistinguishable facts."
Lomholt, 327 F.3d at
752 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).
A State court's factual findings are presumed correct.
U.S.C. § 2254(e)(1).
In order to overcome this presumption,
Mr. Ford must show "by clear and convincing evidence that the
state court's . . . factual findings do not enjoy support in
Lomholt, 327 F.3d at 752 (citing 28 U.S.C. §
Section 2254(d) reflects the view that habeas corpus is
a “guard against extreme malfunctions in the state criminal
correction through appeal.
Harrington, 131 S. Ct. at 786-87
citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979)
(Stevens, J., concurring in judgment).
As a condition for
obtaining habeas corpus from a federal court, a state prisoner
must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
Harrington, 131 S. Ct. at 786-87.
assistance of counsel."
McMann v. Richardson, 397 U.S. 759,
The Fourteenth Amendment Due Process Clause
Washington, 466 U.S. 668, 684-85 (1984).
The Sixth Amendment
guarantees the right to assistance of counsel.
Amend. VI. In Strickland, the Supreme Court elaborated on the
relationship between the Fourteenth and Sixth Amendments:
The benchmark for judging any claim of
ineffectiveness must be whether counsel's
functioning of the adversarial process that
the trial cannot be relied on as having
produced a just result.
466 U.S. at 686.
The moving party must demonstrate two
components to establish ineffective assistance of counsel:
Strickland, 466 U.S. at 687.
Counsel's conduct is deficient
when it is unreasonable "under prevailing professional norms."
Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).
of prejudice requires that "counsel's errors" be so serious
that they "deprive the defendant of a fair trial . . . ."
Strickland, 466 U.S. at 687. In other words a Petitioner must
show "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different."
Strickland, 466 U.S. at 694.
reasonable probability does not require a different outcome be
proven by a "preponderance of the evidence" but does require
"a probability sufficient to undermine confidence in the
In this case, Mr. Ford argues his trial counsel was
deficient for failing to pursue an alibi defense.
above, typically to prevail on an ineffective assistance
claim, a petitioner must show that his attorney's "performance
was deficient" and that "the deficient performance prejudiced
Strickland, 466 U.S. at 687.
In evaluating an
attorney's performance, the reviewing court "must indulge a
strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance."
As noted above, Mr. Ford’s trial counsel, Ms. Samuelson,
was pressed for time because her appointment was only 10 days
before the scheduled trial date.
Mr. Ford refused to waive
his right to a speedy trial and he refused to agree to a
continuance. By his actions, Mr. Ford forced Ms. Samuelson to
proceed to trial without allowing her more time to prepare a
defense. Nevertheless, the record reflects that Ms. Samuelson
worked diligently and thoroughly to prepare for trial; and she
met with the defendant on a nearly daily basis.
thorough review of the trial transcripts shows absolutely no
failure on Ms. Samuelson's part to zealously represent her
As the Supreme Court has stated: “[i]f this standard
is difficult to meet, that is because it was meant to be. As
amended by AEDPA, § 2254(d) stops short of imposing a complete
bar on federal court relitigation of claims already rejected
in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664
(1996) (discussing AEDPA's ‘modified res judicata rule’ under
§ 2244). It preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with this
It goes no farther.”
Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011)(some
internal citations omitted).
client in spite of his forcing her hand to proceed to trail on
Similarly, a review of the record shows no
deficiency regarding Mr. Koll’s representation of Mr. Ford.
Mr. Koll filed appropriate motions to supress, investigated
and then interviewed potential witnesses.
Additionally, as noted by the lower courts, both Ms.
Samuelson and Mr. Koll evaluated Mr. Ford’s potential alibi
defense and made the strategic decision that it would hurt,
not help, Mr. Ford.
As has been stated repeatedly by the
Courts, “strategic decisions [are] virtually unchallengeable
Worthington v. Roper, 631 F.3d 487, 500 (8th Cir. 2011) cert.
denied, 132 S. Ct. 763 (U.S. 2011).
This conclusion is
supported by the record.
Mr. Ford told Mr. Koll about three alibi type witnesses:
Gene Smith, Bonita Urich (or Eritch), and Adibey Habhab. Koll
Depo. p. 7, line 18 - p. 8, line 4; App. 118.
There is no
further record regarding Gene Smith’s potential testimony,
other than Mr. Koll’s statement that he felt confident Gene
Smith could be located, because his office briefly represented
Smith in a separate case.
Koll Depo. p. 17, line 13 - p. 18,
line 24; App. 121.
Mr. Koll’s investigator contacted Bonita
Koll Depo. p. 8, lines 1-22; App. 118.
thought Bonita Urich’s testimony might be helpful.
Mr. Koll felt her testimony would not be conclusive, because
she said Mr. Ford had been at her house from 9:00 p.m. until
2:00 a.m. or 3:00 a.m.
Koll Depo. p. 8, lines 1-22, p. 9,
line 19 - p. 10, line 3; App. 118-19.
statement did not rule out the possibility that Mr. Ford
committed the robbery before he came to her house.
Mr. Koll’s deposition of Adibey Habhab indicated that she
might also be helpful, but her testimony suffered from the
fact that it was possibly inconsistent with the defendant’s
Koll Depo. p. 10, line 4 - p. 11, line 8; App. 119.
For example, Mr. Koll noted, if Adibey “stuck with” the story,
she told police that they had been at the hotel all night, it
would have been “devastating” to an alibi that they had been
at Bonita’s Urich’s.
4; App. 122-23.
Koll Depo. p. 24, line 25 - p. 26, line
Additionally, Ms. Samuelson testified that
Adibey’s deposition statements were inconsistent with what she
told police, were contradicted by the hotel video, and Adibey
had become estranged from Mr. Ford.
PCR Tr. p. 12, lines
12-14, p. 13, lines 4-17, p. 25, line 13 - p. 27, line 11;
App. 92, 93, 99-101. Ms. Samuelson testified she discussed it
with Mr. Ford and they agreed not to call Adibey as a witness
at the trial.
PCR Tr. p. 12, lines 22-25, p. 24, lines 19-21;
App. 92, 98.
It is clear to the Court that the attorneys had to make
a strategic decision regarding the potential alibi.
and later Ms. Samuelson faced a “balancing act” between trying
to prove Mr. Ford’s whereabouts, as opposed to attacking the
surveillance videos to show “it can’t be him.”
26, lines 5-16; App. 123.
Koll Depo. p.
Ultimately, the two attorneys met
to discuss the alibi defense.
PCR Tr. p. 11, line 19 - p. 12,
line 11; p. 46, line 16 - p. 47, line 21; App. 91-92, 113-14.
The attorneys agreed the alibi was not “tight enough for it to
be real effective.”
1-17; App. 92, 94.
PCR Tr. p. 12, lines 1-11, p. 15, lines
This was a valid strategic decision.
witnesses, a hypothetical 23 U.S.C. 2254 Petition might attack
that decision, on the ground that counsel should not have
pursued a flawed alibi defense at the expense of more credible
arguments. Urich’s testimony did not preclude the possibility
that Mr. Ford committed the robbery, and Habhab’s testimony
(if she could have been persuaded to testify) conflicted with
Mr. Ford’s statement that they had been at Urich’s.
discretion in decided against pursuing an alibi defense.
Accordingly, Mr. Ford’s claim that he received deficient
assistance of counsel fails.
Additionally, even if Mr. Ford could show deficient
assistance for failing to pursue an alibi defense, there is no
evidence that failing to pursue an alibi defense prejudiced
the outcome of the trial.
As discussed above, to prove
ineffective assistance under Strickland, Mr. Ford must show
both deficient counsel and that the deficiency resulted in
A showing of prejudice requires that "counsel's
errors" be so serious that they "deprive the defendant of a
fair trial . . . ."
Strickland, 466 U.S. at 687.
words a Petitioner must show "that there is a reasonable
probability that, but for counsel's unprofessional errors, the
Strickland, 466 U.S. at 694; see also Harrington, 131 S. Ct.
770, 787, stating that “[t]o have been entitled to relief from
the California Supreme Court, [the petitioner] had to show
both that his counsel provided deficient assistance and that
there was prejudice as a result.”
In this case, substantial evidence supported Mr. Ford’s
First, security footage from the hotel shows Mr.
Ford wearing the same clothes as the suspect on surveillance
video from the liquor store.
Additionally, the Ft. Dodge
police arrested Mr. Ford wearing those same clothes.
security camera footage at the hotel showed him leaving the
hotel shortly before the robbery and arriving back shortly
after the robbery.
Officer Wilkins of the Ft. Dodge police
department recognized Mr. Ford from the liquor store security
camera footage. Finally, a firearm similar to the one used in
the robbery was found hidden in the toilet in Mr. Ford’s hotel
Based upon that strong, and relatively undisputed
evidence, there is no reasonable probability the result of the
proceeding would have been different even if the defense had
presented the alibi witnesses discussed above.
For the reasons set out above, Mr. Ford’s application for
habeas relief under 28 U.S.C. § 2254 is denied.
IT IS SO ORDERED this 18th day of June, 2013.
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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