Lawrence v. Armontrout, 93-1933

• Decision Date: 07 September 1994
• Docket Number: No. 93-1933,93-1933
• Citation: 31 F.3d 662
• Parties: Edward V. LAWRENCE, Petitioner-Appellant, v. Bill M. ARMONTROUT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 662

31 F.3d 662

Edward V. LAWRENCE, Petitioner-Appellant, v. Bill M. ARMONTROUT, Respondent-Appellee.

No. 93-1933.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1994.

Decided Aug. 2, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 7, 1994.

Daniel P. Card II, St. Louis, MO, for petitioner-appellant.

Stephen D. Hawke, Asst. Atty. Gen., St. Louis, MO, for respondent-appellee.

ORDER

Aug. 2, 1994

The petition for rehearing by the panel is denied. The suggestion for rehearing en banc is denied.

The letter to Chief Judge Arnold requesting appointment of Judge Heaney as a special master has been referred to the panel, is considered as a motion for appointment of a special master, and is denied.

The court of its own motion withdraws and vacates the opinion filed on June 29, 1994, and substitutes the opinion attached to this order.

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON and JOHN R. GIBSON, Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

Edward V. Lawrence appeals from the order of the district court ¹ dismissing his petition for a writ of habeas corpus. 28 U.S.C. Sec. 2254 (1988). The district court determined that Lawrence failed to demonstrate that the ineffective assistance of trial counsel prejudiced him. We affirm.

A St. Louis County Circuit Court jury convicted Lawrence of capital murder and murder in the first degree. These convictions followed the investigation of two shooting deaths in an apartment building on August 11, 1983. According to witnesses, three men entered an apartment and shot the three people inside, killing two of them. The men then fled in a red or burgundy Oldsmobile which one witness observed had the license number JTE-952, the number later determined to be registered to Lawrence's mother's 1977 red Oldsmobile. Witnesses identified Lawrence as one of the three men. Lawrence received a sentence of life imprisonment without parole for fifty years for capital murder and a consecutive life imprisonment sentence for murder in the first degree. The convictions were affirmed on direct appeal. State v. Lawrence, 700 S.W.2d 111 (Mo.Ct.App.1985), cert. denied, 476 U.S. 1106, 106 S.Ct. 1951, 90 L.Ed.2d 361 (1986). ²

Lawrence then filed a request for post-conviction relief pursuant to Missouri Supreme Court Rule 27.26. ³ He alleged ineffectiveness of his trial counsel, basing the request on his trial counsel's failure to interview several potential witnesses who allegedly would have corroborated Lawrence's alibi on the evening of the murders. Lawrence and his trial counsel, but none of the potential witnesses, testified at the Rule 27.26 hearing. Based on the evidence before it, the trial court concluded that Lawrence's counsel rendered constitutionally effective assistance, and denied Lawrence's request for relief. The Missouri Court of Appeals affirmed. Lawrence v. State, 750 S.W.2d 505 (Mo.Ct.App.1988).

Lawrence then filed a pro se petition for writ of habeas corpus in federal court, once again asserting ineffective assistance of his trial counsel. After refusing to hold an evidentiary hearing or to appoint post-conviction counsel, the district court adopted the report and recommendation of the magistrate judge that relief be denied. Lawrence appealed, and this court held that Lawrence's trial counsel was constitutionally deficient in failing to pursue Lawrence's alibi defense. Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir.1990) (Lawrence I ). We further held that Lawrence's failure to have his alibi witnesses testify at his Rule 27.26 hearing did not constitute a procedural default of the prejudice requirement articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lawrence I, 900 F.2d at 131. Accordingly, we reversed and remanded with instructions for the district court to appoint counsel for Lawrence and hold an evidentiary hearing to determine whether Lawrence could show prejudice stemming from the ineffective assistance of his trial counsel. Id. On remand, the magistrate judge concluded that Lawrence's trial counsel's performance did not prejudice his case. The district court disagreed and granted the petition for habeas corpus. This court determined that the district court relied on an incorrect prejudice standard, and we reversed and remanded with instructions that Lawrence's claim be considered in light of the proper standard, as enunciated in Strickland. Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir.1992) (Lawrence II ). On remand, the magistrate judge readopted his earlier Review and Recommendation, concluding that Lawrence's petition should be denied for failure to show prejudice. The district court accepted the magistrate judge's report and denied the petition. This appeal followed.

I.

We first consider the State's argument that Lawrence's ineffective assistance claim is procedurally barred. The State contends that since Lawrence presented no alibi witnesses at his Rule 27.26 evidentiary hearing to support his ineffective assistance claim, he cannot bring a habeas petition based on the testimony these witnesses could have given.

We explicitly decided this issue in favor of Lawrence in Lawrence I, holding that his failure to have the witnesses testify did not amount to a procedural default. 900 F.2d at 131. We rejected the State's attempt to relitigate the issue in Lawrence II because we concluded that Lawrence I constituted law of the case. Lawrence II, 961 F.2d at 115 n. 2. Nonetheless, the State raises this argument a third time, arguing that intervening caselaw requires that we apply the exception to the law of the case doctrine recognized in United States v. Unger, 700 F.2d 445 (8th Cir.), cert. denied, 464 U.S. 934, 104 S.Ct. 339, 78 L.Ed.2d 308 (1983), and Liberty Mutual Insurance Company v. Elgin Warehouse and Equipment, 4 F.3d 567, 569 (8th Cir.1993).

We have stated on numerous occasions that when the Supreme Court has spoken on an issue, our earlier cases to the contrary must not be followed. See, e.g., Liberty Mut., 4 F.3d at 569. This is precisely the argument that the State makes, contending that Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), have established new principles relating to procedural bar that render our earlier opinions in Lawrence I and Lawrence II invalid. Although Keeney and Coleman undoubtedly further articulate principles of procedural bar, we are not convinced that they would entitle the State to successfully assert procedural bar on the record before us. These cases do establish that a petitioner may not assert a claim for ineffective assistance of post-conviction counsel, see Coleman, 501 U.S. at 753-55, 111 S.Ct. at 2567, and that a petitioner must generally develop all necessary material facts in the state courts, see Keeney, --- U.S. at ----, 112 S.Ct. at 1719. See also Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992) (inadequate representation by post-conviction counsel is not cause for procedural default); Bolder v. Armontrout, 921 F.2d 1359, 1362-63 (8th Cir.1990) (procedural default occurred when petitioner failed to present supporting evidence at Rule 27.26 hearing), cert. denied, --- U.S. ----, 112 S.Ct. 154, 116 L.Ed.2d 119 (1991). Unlike the petitioners in those cases, however, Lawrence maintained a record showing that he had taken repeated steps to preserve his ineffective assistance claim. At his Rule 27.26 hearing, Lawrence personally advised the court that he had witnesses available to testify on his behalf. As his postconviction counsel told the court, "[Lawrence] requested that I call several individuals that he requested his trial counsel to call...." The court, however, simply ended the hearing. Lawrence's unwavering desire to present these witnesses is fully contained on the record before us. Nonetheless, we need not decide whether this sufficiently distinguishes this situation from those in Coleman, Keeney and the other cases cited by the State because the State waived its right to assert this argument by failing to raise these issues for consideration by the district court. Our circuit has joined other circuits in holding that the State must raise procedural bar issues, or they are waived. See Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir.1991); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991); Francis v. Rison, 894 F.2d 353, 355 (9th Cir.1990); Mayo v. Lynaugh, 893 F.2d 683, 686 (5th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 272, 116 L.Ed.2d 225 (1991); see also Engle v. Isaac, 456 U.S. 107, 125 n. 26, 102 S.Ct. 1558, 1570 n. 26, 71 L.Ed.2d 783 (1982). This approach is consistent with our general requirement that issues first be raised before the district court. See Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.1986). Thus, we address the merits of Lawrence's ineffective assistance claim.

II.

A habeas petitioner seeking relief based on ineffective assistance of counsel must show: (1) his counsel's assistance fell below an objective standard of reasonableness in that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would use under similar circumstances; and (2) that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65; Brewer v. Iowa, 19 F.3d 1248, 1250 (8th Cir.1994). We concluded in Lawrence I that "Lawrence has established the first prong of the Strickland standard." 900 F.2d at 130. Thus, only the second Strickland factor, whether trial counsel's ineffective assistance prejudiced Lawrence, remains in dispute.

Ineffective assistance claims present mixed questions of fact and law. Porter v. Lockhart, 925 F.2d 1107, 1109 (8th Cir.), cert. denied, 501 U.S. 1256, 111 S.Ct. 2902, 115 L.Ed.2d 1066 (1991). Therefore, we review the district court's findings of fact...