Collins v. Dormire, 99-3705
| Decision Date | 11 January 2000 |
| Docket Number | No. 99-3705,99-3705 |
| Citation | 240 F.3d 724 |
| Parties | (8th Cir. 2001) MICHAEL COLLINS, PETITIONER - APPELLANT, v. DAVE DORMIRE, RESPONDENT - APPELLEE. . Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Eastern District of Missouri.
Before Wollman, Chief Judge, Hansen, and Murphy, Circuit Judges.
Michael Collins who was convicted in Missouri of second degree robbery seeks federal habeas relief on the grounds that he received ineffective assistance of counsel on his direct appeal when his counsel failed to raise an identification issue. The district court 1 denied his petition, and he appeals. We affirm.
Collins was charged with attempted kidnaping and second degree robbery after a woman was attacked outside a grocery store in Maplewood, Missouri and forced into a car. As the victim left the store, she was approached by a man who put his arm around her and began asking questions. The man then pressed something he said was a knife against her back and forced her to walk across the street where he shoved her into a car. She hit him on the head with a bottle and jumped out. Mike Schuessler, who lived nearby, heard her screaming and ran to the scene where he saw the victim standing on the sidewalk near a large car. Schuessler got a look at the man driving the car, but he drove off before Schuessler could get the license number. Schuessler only saw the man from the side and told police he would not be able to identify him. The police made a composite sketch based on the victim's description of her assailant, and an officer who saw the sketch thought it looked like Michael Collins and assembled a photo spread of six persons, including Collins. The victim viewed the photo lineup four days after the attack, and identified Collins as the man who had attacked her.
At the beginning of trial, Collins moved to suppress any in-court identification because of the identification procedures that had been used by the police. The court denied the motion, but granted counsel a continuing objection. Collins was identified during trial by both the victim and Schuessler. Collins' trial attorney learned through cross examination of Schuessler that the day before trial he had met with the prosecutor and the victim. At that meeting the prosecutor had shown Schuessler the photo lineup previously displayed to the victim. After Schuessler tentatively identified Collins, the prosecutor showed him several other photographs of Collins. Schuessler said he was not sure Collins was the man in the car; none of the photographs showed his profile. At trial Schuessler said he was sure about his identification of Collins because he had been able to see him from the side in the courtroom. Collins did not object to Schuessler's identification during his testimony, but he moved for a mistrial when it was finished. The court denied the motion, finding that the state's failure to notify Collins of the pretrial identification was improper, but that Schuessler's in-court identification had not been tainted by the pretrial identification procedure.
The jury found Collins guilty of second degree robbery, but not guilty of attempted kidnaping. The state trial court found that Collins was a prior and repeat offender and sentenced him to twelve years. Collins moved for a new trial, arguing that the court had erred by not granting a mistrial because of the improper pretrial identification procedure. After an evidentiary hearing, the motion was denied and Collins appealed. Collins' appellate attorney did not attack his conviction on the basis an of improper pretrial identification procedure, but appealed a jury instruction, an issue that trial counsel had not preserved by making a contemporaneous objection. The Missouri Court of Appeals affirmed the conviction, see Missouri v. Collins, 920 S.W.2d 205 (Mo. Ct. App. 1996), and denied Collins' motion to recall the mandate. In the motion to recall the mandate Collins' counsel had complained that his appellate attorney rendered ineffective assistance of counsel by failing to argue that Schuessler's in-court identification of Collins had been tainted by an impermissibly suggestive pretrial identification procedure.
Acting pro se, Collins filed this habeas corpus petition pursuant to 28 U.S.C. 2254. He claimed that he was entitled to relief because his trial attorney was not informed of Schuessler's pretrial identification, the in-court identification of Collins was unreliable, there was insufficient evidence to support his conviction, and trial counsel rendered ineffective assistance because the prosecutor had not given him adequate information about the out-of-court identification procedure. He argued that the ineffective assistance of his appellate counsel constituted cause and prejudice for the default of his claims.
The district court held that while ineffective assistance of appellate counsel may have constituted cause sufficient to overcome procedural default of the improper pretrial identification claim, the petitioner had not satisfied the prejudice element. It rejected Collins' argument that ineffective assistance of appellate counsel constituted cause for default of his remaining claims because those issues had not been raised in his motion to recall the mandate, and it denied his petition. We granted Collins a certificate of appealability "on the single issue of ineffectiveness of appellate counsel for failure to raise and brief the preserved identification issue."
Collins claims that his appellate attorney was ineffective because he did not raise the pretrial identification issue on direct appeal. The state claims that Collins did not preserve this issue by objecting at trial or by raising the precise issue in his pretrial motion for suppression or in his motion for a new trial. The state argues that since Collins has procedurally defaulted the claim and not shown cause and prejudice, his petition should be denied. Collins raised ineffective assistance of appellate counsel in his motion to recall the mandate. That appears under Missouri law to be a way to preserve the issue so that our review would not be procedurally barred, see Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998), and at this point we will proceed to consider the issue certified for appeal.
An ineffective assistance of counsel claim involves a mixed question of fact and law. See Dodd v. Nix, 48 F.3d 1071, 1073 (8th Cir....
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