590 F.3d 592 (8th Cir. 2010), 09-2495, Armstrong v. Kemna

Docket Nº:09-2495.
Citation:590 F.3d 592
Opinion Judge:RILEY, Circuit Judge.
Party Name:William A. ARMSTRONG, Appellee, v. Mike KEMNA, Appellant.
Attorney:Michael Joseph Spillane, AAG, argued, Jefferson City, MO, for appellant. JoAnn Trog, argued, St. Louis, MO, for appellee.
Judge Panel:Before RILEY, HANSEN, and SMITH, Circuit Judges.
Case Date:January 05, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 592

590 F.3d 592 (8th Cir. 2010)

William A. ARMSTRONG, Appellee,

v.

Mike KEMNA, Appellant.

No. 09-2495.

United States Court of Appeals, Eighth Circuit.

January 5, 2010

Submitted: Sept. 22, 2009.

Page 593

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

JoAnn Trog, argued, St. Louis, MO, for appellee.

Before RILEY, HANSEN, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

This case is before us for the third time. After William A. Armstrong (Armstrong) was convicted in Missouri state court of first-degree murder and various other charges, Armstrong filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Armstrong's application, and this court remanded for the district court to consider Armstrong's claims of ineffective assistance of counsel. See Armstrong v. Kemna, 365 F.3d 622, 630 (8th Cir.2004)( Armstrong I ). The district court found Armstrong's counsel acted reasonably and again denied Armstrong's application. On appeal, this court found Armstrong's counsel did not exercise reasonable diligence and remanded for the district court to determine whether counsel's errors prejudiced Armstrong. See Armstrong v. Kemna, 534 F.3d 857, 866, 868 (8th Cir.2008)( Armstrong II ). On remand, the district court found Armstrong was prejudiced

Page 594

and granted Armstrong's application for habeas relief. The government appeals the district court's finding of prejudice. We reverse and deny the writ.

I. BACKGROUND

At approximately 11:00 p.m., on January 5, 1996, Armstrong and his companions-Armstrong's biological brother, Solomon Armstrong (Solomon); Armstrong's foster brother, Antwon Hamilton (Antwon); Antwon's biological brother, Tyreese Hamilton (Tyreese); and Armstrong's friend, Charles Brown (Brown)-decided to drive from Milwaukee, Wisconsin, to Hayti Heights, Missouri, to visit Antwon's and Tyreese's biological family. The group arrived in Hayti Heights on January 6, 1996, at approximately 6:30 or 7:00 a.m., and drove to 108 North Martin Luther King Drive. Armstrong later learned it was the residence of Channelle Davis (Channelle), Antwon's and Tyreese's cousin.

That evening, several people came to Channelle's residence, and the group eventually decided to go to C.J.'s, a local nightclub. While the group was at C.J.'s, an argument erupted between Diane Davis (Diane) 1 and Terrell McGee (Terrell), who were dating. The argument became heated, and several people witnessed Terrell slap, push, or grab Diane. Tyreese joined in the argument to defend his cousin, Diane, which prompted Terrell's brother, Carlos McGee (Carlos), to join in the argument to protect Terrell. As the argument escalated, other friends and family members of the Davises, including the Hamiltons and the Armstrongs, became involved in the altercation with the McGees. The bar owner, Charles Jones (Jones), pulled out a handgun and ordered everyone out of the bar. Those involved in the argument left the bar and resumed the argument in the parking lot. During the melee, several gunshots were fired, killing Carlos, and wounding Devonne Davis (Devonne) and Yolanda Childress (Yolanda).2

After the shootings, Armstrong's companions-Solomon, Antwon, Tyreese, and Brown-returned to Milwaukee, Wisconsin, and did not return to Missouri for Armstrong's trial. A jury convicted Armstrong of first-degree murder, two counts of first-degree assault, and three counts of armed criminal action.

Following an unsuccessful direct appeal and a motion for post-conviction relief in the Missouri courts, Armstrong filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of Missouri. Armstrong raised various grounds for relief, including a claim that Armstrong's trial counsel was ineffective in failing to secure the testimony of Armstrong's out-of-state witnesses. The district court held an evidentiary hearing on February 14, 2002.

Before discussing the merits of Armstrong's application, the district court recognized Armstrong's state post-conviction motion was filed five days late. As a result, the claims in his habeas application were procedurally defaulted. The district court determined that a state-employed prison librarian provided Armstrong with the wrong deadline for filing his post-conviction motion; therefore, Armstrong demonstrated cause to excuse his procedural default. However, the district court concluded Armstrong's " claim of ineffective assistance of counsel ... is without merit,

Page 595

and, therefore, he cannot demonstrate prejudice arising from his procedural default of the issue."

Armstrong appealed, and this court remanded " for the limited purpose of considering whether trial counsel's failure to secure the attendance of the out-of-state witnesses or a continuance in light of the Uniform Act [To Secure the Attendance of Witnesses From Without the State in Criminal Proceedings] constituted ineffective assistance of counsel under Strickland. " 3 Armstrong I, 365 F.3d at 630. On remand, the district court again denied Armstrong's application for habeas relief. The district court concluded Armstrong's " trial counsel took reasonable steps to secure" the testimony of Armstrong's out-of-state witnesses, and counsel's actions " were sufficient to satisfy her burden under Strickland. " With regard to the continuance issue, the district court found Armstrong failed to demonstrate sufficient prejudice as required under Strickland.

On appeal, this court concluded Armstrong's trial counsel did not exercise reasonable diligence and failed to take sufficient measures to secure the attendance of out-of-state witnesses. See Armstrong II, 534 F.3d at 865-66. Thus, we found Armstrong satisfied the first Strickland prong, which requires defendants to show trial counsel's performance fell below an objective standard of reasonableness. See id. at 866, 104 S.Ct. 2052; Strickland v. Washington, 466 U.S. 668, 688-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the record did not contain sufficient evidence to determine whether Armstrong was prejudiced by the absence of the out-of-state witnesses at trial, this court " remanded to the district court to provide Armstrong with a fair opportunity to develop the record concerning the actual content of the absent witnesses' testimony, and for the district court to conduct an analysis of whether Armstrong has demonstrated prejudice under Strickland. " Armstrong II, 534 F.3d at 868.

On January 20, 2009, the district court held a second evidentiary hearing. Four witnesses testified at the hearing, including (1) Armstrong; (2) Armstrong's biological brother, Solomon; (3) Armstrong's foster brother, Antwon; and (4) Erik Thomas (Thomas), a witness for the government. After the hearing, the district court concluded Armstrong was prejudiced by the absence of Solomon and Antwon from Armstrong's trial; therefore, Armstrong satisfied the second Strickland prong. The district court granted Armstrong's application for habeas relief. The government appeals claiming (1) the district court erred in finding Strickland prejudice; and (2) even if Armstrong were prejudiced under Strickland, Armstrong has not shown he was sufficiently prejudiced to overcome his procedural default.

II. DISCUSSION

A. Standard of Review

" When considering an appeal from the granting of habeas corpus relief on the ground of ineffective assistance of counsel, this court may engage in its own independent review of the district court's conclusion, because the issue of ineffective assistance of counsel presents a mixed question of law and fact." Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988) (en banc) (citations omitted). " The district court's findings of fact, however, are reviewable under the clearly erroneous standard." Id. (citations omitted).

B. Strickland Prejudice

" To show prejudice [under Strickland ], ‘ [t]he defendant must show that there is a

Page 596

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." McCauley-Bey v. Delo, 97 F.3d 1104, 1105 (8th Cir.1996) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). " A reasonable probability is one sufficient to undermine confidence in the outcome." Id. (citation omitted). " ‘ [I]n determining the existence vel non of prejudice, the court must consider the totality of the evidence before the judge or jury.’ " Id. (internal marks omitted) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). Thus, to conduct our analysis, we should add the testimony of Armstrong's uncalled witnesses to the body of evidence actually presented at his trial. See id. at 1105-06. In doing so, we shall consider: " (1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution." Id. at 1106.

1. State's Trial Evidence

We begin our analysis by evaluating " the strength of the evidence actually presented by the prosecution." Id. At Armstrong's trial, nineteen people testified for the state. These nineteen witnesses essentially comprise four different groups: (1) staff from C.J.'s nightclub, (2) relatives of the Davises, (3) friends and relatives of the McGees, and (4) police and other investigators or medical personnel.

a. Nightclub Staff

Jones, the owner of C.J.'s nightclub, testified that on the night of January 6, 1996, he witnessed Diane and Terrell pushing and arguing...

To continue reading

FREE SIGN UP