Carter v. Hopkins

• Decision Date: 03 October 1996
• Docket Number: No. 95-2782,95-2782
• Citation: 92 F.3d 666
• Parties: Victor CARTER, Appellant, v. Frank X. HOPKINS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 666

92 F.3d 666

Victor CARTER, Appellant, v. Frank X. HOPKINS, Appellee.

No. 95-2782.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1996.

Decided Aug. 8, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 3, 1996.

David J. Koukol, Omaha, NE, argued, for appellant (Tami R. Weissert, on the brief).

Kimberly A. Klein, Asst. Atty. Gen., Lincoln, NE, argued, for appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

BEAM, Circuit Judge.

Victor Carter filed this petition for habeas corpus relief under 28 U.S.C. § 2254. He asserts that he received ineffective assistance of counsel and was denied his Sixth Amendment right to a fair trial. The district court ¹ denied habeas corpus relief. We affirm.

I. BACKGROUND

On the morning of October 9, 1985, Jeffrey Peterson, a white male, and his cousin John Flynn, went looking for Janelle Anzalone in the vicinity of 19th Street and Lathrop Avenue in Omaha, Nebraska. Anzalone allegedly owed Gerald Kincaid money which Peterson was attempting to collect. While in the neighborhood, Peterson and his cousin were involved in a confrontation with two black individuals. Later that same morning, Peterson was shot and killed outside Kincaid's home.

After the confrontation but before the shooting, two black individuals, later identified as Victor Carter and his brother, George, drove through Kincaid's neighborhood looking for Kincaid. They pulled up alongside a car containing Peggy Hatfield and Scott Reynolds. Carter threatened Hatfield with a gun as a warning to Kincaid to stay out of Carter's neighborhood. He told Hatfield to tell Kincaid that his "crib ain't nowhere to be messin' around, and my people ain't nobody to be fuckin' with." Appendix at 220. Hatfield and Reynolds then drove to a phone booth ten to fifteen blocks away to call Kincaid and warn him that the Carter brothers were looking for him. By the time Hatfield and Reynolds reached Kincaid by phone, however, Peterson had been shot.

During this time, the Carter brothers had apparently been circling Kincaid's home awaiting further confrontation. In an attempt to flee to safety, Peterson and Flynn started across the street to a neighbor's home. As they did so, the Carter brothers sped by in their car, slammed on the brakes and jumped out. After jumping from the car, Victor Carter shot Jeffrey Peterson.

During the investigation into Peterson's murder, several witnesses surfaced. To aid in the suspects' identification, a lineup was arranged in which Carter and his two brothers participated. Hatfield and Reynolds identified Carter and his brother George as Peterson's assailants. Although they had not witnessed the murder, Hatfield and Reynolds had seen the Carter brothers just before the murder and identified their car as the same car later connected to the Peterson shooting. In addition, Kincaid testified as an eyewitness to the murder. ²

The Carter brothers were arrested and taken to the police station for questioning. They were charged with first degree murder, use of a firearm in the commission of a felony, and being habitual criminals. Carter claims that he repeatedly requested, but was denied, the assistance of counsel during his post-arrest questioning at the police station.

During jury selection, Carter's counsel did not object to the prosecution's striking of potential black jurors, despite Carter's claims that he expressed concern over the elimination of blacks from his jury. Carter was tried by an all-white jury. On April 10, 1986, Carter was convicted on all charges.

Carter was sentenced to life in prison on the murder count and ten years on the firearm count. His conviction and sentence were affirmed on direct appeal by the Nebraska Supreme Court. State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987). Carter's motion for state postconviction relief was denied and that denial was affirmed on appeal by the Nebraska Supreme Court. Carter then filed a petition for a writ of habeas corpus in federal court which was denied by the district court. Carter appeals that denial to this court.

II. DISCUSSION

Carter asserts that his counsel was ineffective for failing to object to: (1) the prosecution's allegedly discriminatory use of peremptory challenges; (2) the in-court identifications of Carter based on an allegedly impermissibly suggestive out of court showup; and (3) the alleged repeated denial of Carter's requests for counsel following arrest. He also claims he was denied his Sixth Amendment right to a fair trial because of his counsel's failure to request a continuance following the discovery of eyewitness testimony.

To succeed on an ineffective assistance of counsel claim, Carter must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Deficient performance will only be found where counsel's performance fell below an objective standard of reasonableness. Randolph v. Delo, 952 F.2d 243, 246 (8th Cir.1991), cert. denied, 504 U.S. 920, 112 S.Ct. 1967, 118 L.Ed.2d 568 (1992). We evaluate counsel's performance not with the clarity of hindsight, but in light of the facts and circumstances at the time of trial. Id. In examining whether prejudice has resulted from counsel's deficient performance, the ultimate focus is on "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993).

The district court's determination on an ineffective assistance of counsel claim, both as to the deficient performance and prejudice components, is a mixed question of law and fact. Sherron v. Norris, 69 F.3d 285, 290 (8th Cir.1995). We review the district court's factual determinations for clear error but its legal conclusions de novo. Id.; Wilson v. Armontrout, 962 F.2d 817, 819 (8th Cir.), cert. denied, 506 U.S. 942, 113 S.Ct. 383, 121 L.Ed.2d 293 (1992).

A. Batson Issue

Carter alleges that his trial counsel was ineffective for failing to object to the prosecution's allegedly discriminatory use of peremptory challenges. Carter claims that he had specific discussions with his lawyer regarding the need for objections to juror strikes and yet his attorney failed to make those objections. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the race-based exclusion of potential jurors through the use of peremptory challenges violates the Equal Protection Clause of the United States Constitution. In a subsequent case, the Court held that Batson applies "retroactively to all cases, state or federal, pending on direct review or not yet final" at the time of the Batson decision. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). Because Carter had not yet been sentenced at the time of the Batson decision, Batson applies to this case.

Applying the deferential Strickland standard, we conclude that the district court correctly determined that Carter's counsel was not ineffective for failing to raise the Batson issue during jury selection. Although the theory behind Batson was available to counsel at the time jury selection occurred here, Batson itself had not yet been decided. We have stated previously that counsel need not "anticipate a change in existing law" to render constitutionally effective assistance of counsel. Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir.1996). Therefore, counsel's failure to make the Batson objections did not fall below the deferential standard of reasonableness established in Strickland. Nor was counsel's performance deficient for failing to raise the Batson issue on direct appeal. See Randolph, 952 F.2d at 246. Counsel need not raise "every single conceivable argument" to be effective. ³ Ruff, 77 F.3d at 268.

Carter cites Government of the Virgin Islands v. Forte, 865 F.2d 59 (3d Cir.1989), in support of the proposition that his counsel was ineffective in failing to make a Batson objection despite his contrary requests. In that case, a consulting attorney informed the trial attorney prior to trial that Batson was pending before the United States Supreme Court. The consulting attorney also urged the trial attorney to preserve possible Batson objections in the event that Batson proved helpful in the future. In addition, Forte repeatedly discussed the matter with his trial attorney and requested him to object to the jury's composition. Despite this, Forte's trial counsel did not object to the prosecution's use of peremptory challenges. On appeal, the court held that under those "extraordinary" facts, trial counsel's failure to raise the Batson objection was unreasonable. Forte, 865 F.2d at 63. Such extraordinary facts do not exist in this case.

Carter claims that his alleged repeated expressions of concern about facing an all-white jury position his case closer to Forte than to our cases holding that failure to raise a Batson objection, in situations where Batson had not yet been decided, was not ineffective assistance of counsel. See, e.g., Ruff, 77 F.3d at 268; Randolph, 952 F.2d at 246. We disagree. Initially, we note that even if Carter's allegations are true, trial counsel in this case was only presented with a client's generalized concern over the makeup of his jury. There was no involvement by an outside attorney informing trial counsel of the need to preserve an objection or of the fact that a case which could be dispositive of the jury selection issue was currently pending in front of the United States Supreme Court. Nor was there a specific legal constitutional basis offered for the objection as there was in Forte. As the court in Forte took care to point out:

[W]e do not imply that any time a trial attorney does not carry out her client's requests she may be held...