Armstrong v. Kemna

• Decision Date: 24 July 2008
• Docket Number: No. 06-1424.,06-1424.
• Citation: 534 F.3d 857
• Parties: William A. ARMSTRONG, Appellant, v. Mike KEMNA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

534 F.3d 857

William A. ARMSTRONG, Appellant, v. Mike KEMNA, Appellee.

No. 06-1424.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2007.

Filed: July 24, 2008.

Linda S. Sheffield, argued, Atlanta, GA, for Appellant.

Michael Joseph Spillane, AAG, argued, Jefferson City, MO, for Appellee.

Before RILEY, HANSEN, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

This matter is before our court for the second time. Following William Armstrong's (Armstrong) unsuccessful attempts to obtain relief in the Missouri state courts from his convictions for first degree murder, first degree assault, and armed criminal action, Armstrong applied for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied Armstrong's application. On appeal, we affirmed in part, but remanded to the district court for the limited purpose of considering two ineffective assistance of counsel claims. See Armstrong v. Kemna (Armstrong I), 365 F.3d 622, 630-31 (8th Cir.2004). On remand, the district court again denied habeas relief. We now reverse.

I. BACKGROUND

This case originated from the events surrounding a nightclub altercation on January 6, 1996. On that date, Armstrong and a few companions, including his brother Solomon Armstrong (Solomon), his foster brother Antwon Hamilton (Hamilton), and his friend Charles Brown (Brown), had traveled together from their homes in Milwaukee, Wisconsin, to Hayti Heights, Missouri. Later that evening, the group went to a nightclub, where an argument erupted between Terrell McGee and Diane Davis. The argument escalated to involve many other nightclub patrons, including McGee family members, Davis family members, and Armstrong. The nightclub owner ordered everyone involved in the argument outside, and the argument continued in the parking lot. During the melee, several gunshots were fired, killing Carlos McGee, and wounding Yolanda Childress and Devonne Davis.

Armstrong was charged with and tried for one count of first degree murder, two counts of first degree assault, and three counts of armed criminal action. Solomon, Hamilton, and Brown (collectively, the out-of-state witnesses) returned to Milwaukee and did not travel back to Missouri to testify at Armstrong's trial. It is the absence of the out-of-state witnesses from Armstrong's trial and the actions of Armstrong's trial counsel, a Missouri state public defender, that lie at the heart of this second habeas appeal.

At Armstrong's trial, the state presented testimony from nineteen witnesses. Recognizing the importance of the testimonies of the out-of-state witnesses to Armstrong's defense, trial counsel attempted to secure their attendance at trial. One option for doing so existed under the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings (Uniform Act), which Missouri adopted and enacted in 1959. See Mo.Rev.Stat. § 491.420 (describing procedure for summoning a witness from another state to testify in Missouri). Under subsection 491.420(1),

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions ... in this state, is a material witness in a prosecution pending in a court of record in this state, ... a judge of such court may issue a certificate ... stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state.

Also under Missouri's Uniform Act, the term "summons" includes "a subpoena, order or other notice requiring the appearance of a witness." Id. § 491.400(2).

Because the Uniform Act is reciprocal and operative only in those states that have adopted it or similar legislation for compelling witnesses to travel to and testify in other states, see New York v. O'Neill, 359 U.S. 1, 4, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959), trial counsel contacted Wisconsin authorities¹ to determine whether Wisconsin participated in the Uniform Act and how she could subpoena the out-of-state witnesses to testify at Armstrong's trial. Trial counsel inquired whether Wisconsin was "part of the interstate compact" concerning subpoenaing out-of-state witnesses. During a pretrial hearing on July 23, 1996, approximately one month before trial, trial counsel informed the trial court she had contacted the Milwaukee County Sheriff's Department (Sheriff's Department) and determined Wisconsin was "not part of the Interstate Compact for Subpoenaing Witnesses." Trial counsel attempted to communicate to the trial court her understanding regarding the procedure for subpoenaing the out-of-state witnesses, stating the public defender's office would have to pay a witness fee and mileage to the court in the county in which the witnesses were located, upon which a subpoena would be issued.² Despite the fact the Sheriff's Department characterized the order as a "subpoena," trial counsel personally believed the subpoena was more akin to and "sounded more like a summons ... since [Wisconsin was] not part of the interstate compact." Trial counsel then moved for an order allowing Armstrong to proceed in forma pauperis so the public defender's office could avoid a charge from the Sheriff's Department for delivery of the subpoena. The trial court entered this order on July 29, 1996.

Contrary to trial counsel's mistaken belief, Wisconsin had adopted and enacted the Uniform Act in 1970. See Wis. Stat. § 976.02 (entitled "Uniform act for the extradition of witnesses in criminal actions"). Subsection 976.02(2), which describes the procedure for summoning witnesses from Wisconsin to testify in another state, provides that if a judge from a state recognizing the Uniform Act certifies a person within Wisconsin is a material and necessary witness in a criminal prosecution, and such certification is presented to a Wisconsin court in the county in which the person is located, the Wisconsin court shall issue a summons directing the witness to testify in the other state's prosecution. Id. § 976.02(2)(a), (b). Like Missouri's Uniform Act, the term "summons" as used in Wisconsin's statutory provision "includes a subpoena order or other notice requiring the appearance of a witness." Id. § 976.02(1).

Notwithstanding trial counsel's earlier representation to the trial court regarding her intent to subpoena the out-of-state witnesses, trial counsel thereafter spoke with her supervisor, and they decided it would be best either to provide the out-of-state witnesses bus tickets to Missouri or to allow them to travel to Missouri themselves and be reimbursed. Trial counsel decided against subpoenaing the out-of-state witnesses because she (mistakenly) believed such subpoenas would be unenforceable. As Armstrong's trial date approached, however, the option to provide bus tickets never materialized because trial counsel's attempts to communicate with the out-of-state witnesses were unsuccessful and, in trial counsel's words, because the out-of-state witnesses "never actually requested that [the public defender's office] make the bus arrangements, so [trial counsel] didn't do that." Approximately one week before trial, trial counsel arranged a conference call to discuss travel arrangements with Solomon and Hamilton. Both Solomon and Hamilton lived with Armstrong's mother. When Armstrong's mother answered the call, she informed trial counsel Solomon was asleep and Hamilton was not home. With regard to Brown, trial counsel's investigator spoke with Brown about six or seven months before trial, but subsequent attempts to contact Brown were unsuccessful.

On the night of August 22, 1996, following the first day of Armstrong's two-day trial, Solomon called trial counsel and stated he would travel by bus to Missouri that night to testify at his brother's trial the next day. Based on Solomon's statements, trial counsel believed Solomon would purchase his own bus ticket and accept reimbursement later. Trial counsel asked Solomon to call her office upon his arrival in Missouri. However, Solomon never contacted trial counsel or showed up at Armstrong's trial.

Thus, on August 23, 1996, the second and final day of Armstrong's trial, trial counsel orally moved for a continuance to allow the out-of-state witnesses time to travel to Missouri to testify. Armstrong interrupted and told the trial court the out-of-state witnesses were absent because trial counsel failed to subpoena them and also failed to clarify whether the state would pay for their costs of traveling to Missouri. According to Armstrong, the out-of-state witnesses lacked sufficient funds to travel to Missouri. Armstrong explained to the court, "I tried to use my power to subpoena, but [trial counsel] never sent them subpoenas." The trial court inquired whether Wisconsin was "part of our Interstate Compact as far as ... acquiring attendance for out-of-state witnesses." Trial counsel responded, "No. I called the attorney general's office and they said no." Trial counsel further stated the out-of-state witnesses previously had indicated they would be present at Armstrong's trial, but later failed to make themselves available for phone conferences with her. Armstrong reiterated his previous argument regarding trial counsel's actions and omissions, including the failure to subpoena the witnesses. The trial court rejected Armstrong's argument, relying, in part, on trial counsel's understanding that "Wisconsin was not a part of this Interstate Compact agreement," and noting Armstrong had been aware of his trial date for over two months and "had ample opportunity" to request his family testify at trial. Thus, the trial court denied the motion for a continuance.

Thereafter, the case was submitted, and the jury convicted Armstrong on all counts. Armstrong was sentenced to life imprisonment without...