Armstrong v. Kemna, 02-2215.

• Decision Date: 12 April 2004
• Docket Number: No. 02-2215.,02-2215.
• Parties: William A. ARMSTRONG, Petitioner/Appellant, v. Mike KEMNA, Respondent/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

365 F.3d 622

William A. ARMSTRONG, Petitioner/Appellant, v. Mike KEMNA, Respondent/Appellee.

No. 02-2215.

United States Court of Appeals, Eighth Circuit.

Submitted: September 9, 2003.

Filed: April 12, 2004.

R. Gregory Bailey, argued, St. Louis, MO, for appellant.

Frank A. Jung, argued, Assistant Attorney General, Jefferson City, MO, for appellee.

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

William Armstrong (Armstrong) was convicted in a Missouri state court of first degree murder, two counts of first degree assault, and three counts of armed criminal action. He was sentenced to life imprisonment on the murder count and sixty years imprisonment on the other counts. After failing to obtain relief from Missouri state courts, Armstrong filed a federal habeas application under 28 U.S.C. § 2254. The district court¹ denied Armstrong's application, but granted him a certificate of appealability on all issues covered in the court's order. We affirm, in part, but remand this case to the district court for the limited purpose of addressing two unresolved issues.

I. BACKGROUND

On January 6, 1996, Armstrong and a few companions, including Armstrong's brother, Solomon Armstrong (Solomon), Charles Brown (Brown), and Antwon Hamilton (Hamilton), traveled from Milwaukee, Wisconsin, to Hayti Heights, Missouri. That evening, the group went to a bar. At the bar, Terrell McGee and Diane Davis began arguing. As the argument escalated, McGee family members, Davis family members, and Armstrong got involved. The bar owner ordered everyone out of the bar, and the argument continued in the parking lot. As the crowd made its way to the parking lot, shots were fired, killing Carlos McGee (McGee), and wounding Yolanda Childress and Devonne Davis.

Armstrong left the scene and went to the home where he was staying. Later that evening, the police arrived and arrested Armstrong and his companions for the shootings at the bar. While the police were arresting Armstrong, shots were fired from outside the home, wounding a police officer. Emerson Branch, who was at the bar earlier in the evening, was later convicted of shooting the officer. The bullet that wounded the police officer was the same caliber as the bullets found at the bar and on McGee's hospital gurney.

Armstrong was charged with and tried for murder in the first degree, two counts of assault in the first degree, and three counts of armed criminal action. A state public defender represented Armstrong. At trial, several witnesses, related to the McGee family, testified Armstrong was the sole shooter. Armstrong testified someone else did the shooting, but he did not identify the shooter. Having returned to Milwaukee, Armstrong's companions did not travel to Missouri to testify at Armstrong's trial. The reasons for these witnesses not testifying are at the heart of this appeal.

Armstrong's trial counsel (trial counsel) alerted the trial court to her inability to subpoena the out-of-state witnesses (i.e., Solomon, Brown and Hamilton), because the Wisconsin Attorney General's Office informed her Wisconsin would not recognize the subpoenas. Trial counsel also informed the court the Missouri Public Defender's Office does not advance funds to witnesses for transportation to trials. Although trial counsel advised the court her office would have paid for bus tickets, she failed to procure bus tickets for the witnesses. It was not until the last day of trial that trial counsel sought a short continuance to allow the Milwaukee witnesses time to travel to Missouri. During this discussion, Armstrong interrupted and told the trial court the witnesses were not present because trial counsel failed to get them there, even though he had prompted his trial counsel for months to secure the witnesses' attendance at trial. Armstrong later told the trial court he was dissatisfied with his trial counsel's representation and had tried to remove her from his case. The trial court, which was not provided the absent witnesses' expected testimony, denied the motion for a continuance. Armstrong's companions did not testify at trial. Armstrong was convicted.

On direct appeal, Armstrong raised two issues: (1) the prosecutor's closing argument deprived Armstrong of due process and a fair trial; and (2) the trial court abused its discretion in denying the motion for a continuance to secure the attendance of Solomon and Hamilton. Armstrong did not contest the sufficiency of the evidence against him. The Missouri Court of Appeals held the trial court (1) did not err in allowing the closing argument, and (2) did not abuse its discretion in denying the motion for a continuance. In deciding the continuance issue, the Missouri Court of Appeals stated Armstrong's argument did not yield "a clue about what these witnesses would have testified to or how their testimony would have aided the defense." The Missouri Court of Appeals also concluded the trial record revealed Armstrong could not have secured the presence of his witnesses "any time in the reasonably foreseeable future." Thus, the Missouri Court of Appeals affirmed the judgment against Armstrong. Armstrong then sought post-conviction relief. Neither the state trial court nor the Missouri Court of Appeals considered the merits of the claims, because Armstrong filed the post-conviction relief motion late.

Obtaining no relief in Missouri state courts, Armstrong turned his attention to the federal courts. Armstrong filed his application for a writ of habeas corpus under 28 U.S.C. § 2254 in federal court, raising numerous grounds for relief. In his habeas application, Armstrong swore his "witnesses would have testified that I did not have a weapon, nor was I arguing with anybody, and that someone else from the McGee family were [sic] shooting at us. Someone who they were arguing with in the club. My witnesses names are Antwon Hamilton, Solomon Armstrong, and Charles Brown."

In a hearing on February 14, 2002, the district court secured the testimony of trial counsel, who stated she or her investigator had spoken to all three out-of-state witnesses. Trial counsel said Brown would have testified he did not witness the shooting, but never saw Armstrong with a gun. Trial counsel also said Hamilton and Solomon would have testified they could not identify the shooter, but that Armstrong was not the shooter. Trial counsel considered two options to secure the attendance of the witnesses at trial: send an unenforceable subpoena and expense money to the witnesses; or send bus tickets to the witnesses with a promise to pay for their lodging and meals. Trial counsel decided against the first option, because a subpoena was unenforceable. Trial counsel testified that, although the out-of-state witnesses indicated they would testify at Armstrong's trial, the second option fell through, because she could not contact the witnesses as planned. Trial counsel testified she arranged a conference call with Solomon and Hamilton a week before trial to discuss travel arrangements. When trial counsel initiated the call, Armstrong's mother answered and told trial counsel one of the witnesses was sleeping and the other witness was not there. None of the out-of-state witnesses contacted trial counsel until the first day of trial, when Solomon called trial counsel and told her he would travel by bus to Missouri that night to testify at his brother's trial. Trial counsel arranged for Solomon to call her when he arrived in Missouri, but Solomon never called.

The district court found sufficient cause to excuse Armstrong's procedural default in state court, because a state-employed prison librarian gave Armstrong the wrong deadline for filing his post-conviction relief motion. Thereafter, the district court denied Armstrong's habeas application. In denying habeas relief, the district court discussed the critical issues surrounding Armstrong's witnesses and the related continuance issue. Specifically, the court discussed the trial court's denial of the continuance, as well as the ineffective assistance of counsel claims relating to trial counsel's failure to secure the attendance of Armstrong's witnesses. The district court also discussed the prosecutor's closing argument and ineffective assistance of appellate counsel claims. The district court granted a certificate of appealability on all issues covered in its order.

On appeal, Armstrong's court-appointed attorney argues two points. First, he contends the state court denied Armstrong a fair trial by denying a continuance to secure the attendance of Armstrong's out-of-state witnesses to testify at trial. Second, he contends trial counsel was ineffective by failing to secure the attendance of Armstrong's out-of-state witnesses at trial. Armstrong individually submitted a number of pro se briefs, which appear to raise actual innocence claims.

II. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court grants habeas relief if the state court's adjudication "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 "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1)-(2). When a state court has not addressed an issue, a federal court cannot apply the deferential AEDPA standards. See Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir.2003). We review de novo the district court's legal conclusions and its factual findings for clear error. Id.

B. Denial of Motion to Continue

Armstrong argues his due process rights were violated when the trial court denied his motion for a continuance to secure the presence of the out-of-state witnesses. For support, Armstrong contends Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002),...