Brunson v. Higgins

• Decision Date: 09 June 1983
• Docket Number: No. 82-1961,82-1961
• Citation: 708 F.2d 1353
• Parties: Eddie BRUNSON, Petitioner-Appellant, v. Gerald HIGGINS, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1353

708 F.2d 1353

Eddie BRUNSON, Petitioner-Appellant, v. Gerald HIGGINS, Superintendent, Respondent-Appellee.

No. 82-1961.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 17, 1982.

Decided June 9, 1983.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, Mo., for respondent-appellee.

George M. Bock, Slagle & Bernard, P.C., Kansas City, Mo., for petitioner-appellant.

Before ROSS, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Eddie Brunson appeals the district court's ¹, 542 F.Supp. 216, denial of his petition for postconviction relief pursuant to 28 U.S.C. Sec. 2254. Brunson contends that his trial counsel was ineffective in failing to make a motion to disqualify the jury panel and in improperly putting into evidence Brunson's prior convictions. Brunson further argues that he did not have the opportunity for full and fair litigation of his Fourth Amendment claims in state court. We affirm.

Brunson was convicted of burglary in the second degree and stealing in July 1976. Brunson was tried in Jackson County, Missouri, and was represented at trial by an attorney from the Jackson County Public Defender's office. The Missouri Court of Appeals subsequently affirmed his conviction. State v. Brunson, 559 S.W.2d 60 (Mo.App.1977). Brunson then sought, and was denied, state postconviction relief under Mo.R.Civ.P. 27.26. ² Brunson subsequently sought federal postconviction relief pursuant to 28 U.S.C. Sec. 2254. The district court found no basis for relief and denied Brunson's petition without a hearing.

I. Ineffective Assistance of Counsel

A. Failure to Challenge Jury Panel

Brunson first contends that his attorney was ineffective in failing to move to strike the jury panel at his trial on the basis that it did not represent a fair cross section of the community due to the exclusion of women from jury panels in Jackson County. At the time Brunson was tried Missouri law provided that although women were eligible to serve on juries, they would be exempted from jury service on request. Sec. 494.031, Mo.Rev.Stat. (Supp.1975).

On January 21, 1975, approximately a year and a half before Brunson's trial, the United States Supreme Court had held the Louisiana jury selection system unconstitutional because it resulted in the systematic exclusion of women from juries. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Under the Louisiana scheme women were automatically excluded from jury service unless they affirmatively chose to serve. On September 27, 1977, fourteen months after Brunson was tried, the Missouri Supreme Court upheld the state's jury selection system in the face of the same type of attack made in Taylor. State v. Duren, 556 S.W.2d 11 (Mo. en banc 1977). The Missouri Supreme Court distinguished Taylor on the basis that Taylor had involved a system under which women were automatically excluded from jury service unless they chose to serve, whereas under the Missouri scheme women were automatically eligible unless they chose to be exempt. The court also concluded that the Missouri system resulted in a greater percentage of women serving on juries than had the Louisiana system. On January 9, 1979, approximately 2 1/2 years after Brunson's trial, the Missouri Supreme Court's decision in State v. Duren was reversed in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), in which the United States Supreme Court held the Missouri jury selection system unconstitutional because, like the Louisiana scheme, it was found to result in the systematic exclusion of women from juries.

Brunson contends that after Taylor v. Louisiana it was clear that the Missouri jury selection system was invalid, and that it constituted ineffective assistance of counsel not to challenge the composition of the jury panel at Brunson's trial.

The district court, in a footnote to its original order of March 24, 1982, denying Brunson's Sec. 2255 petition, specifically considered the failure to raise the Duren motion. The court later vacated this order sua sponte for further consideration of the Duren question and entered a final ruling on July 6, 1982. In both orders the district court reviewed the following findings of the Missouri Circuit Court which had considered Brunson's 27.26 petition:

No evidence was presented at the trial or at this hearing concerning these issues. Defense counsel testified that he had only been a member of the Jackson County Public Defender's office for about a month when he tried this case. He stated he believed that the statistical evidence for a Duren motion was being compiled by the Public Defender's office at that time but that it apparently was not complete as it had not been presented in any case to date to his knowledge.

In the March 24 order the district court had considered the findings of the Circuit Court under 28 U.S.C. Sec. 2254(d), Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and presumed the findings to be correct because none of the eight factors enumerated in Sec. 2254(d) were present. In the July 6 order the court discussed at length Benson v. State, 611 S.W.2d 538 (Mo.App.1980), in which the Missouri Court of Appeals had dealt with a fact situation very similar to this case. The Missouri Court of Appeals concluded in Benson that, at least as to cases tried between Taylor v. Louisiana and State v. Duren, the viability in Jackson County of a jury panel challenge based on the exclusion of women remained speculative, and stated that as a general rule counsel would not be deemed ineffective for failing to make such challenges in cases tried before State v. Duren. ³ The district court concluded that the general rule in Benson was "in accord with the controlling principles of law of this Circuit." The court found no reason not to apply the Benson rule, and summarized, "We find and conclude that under the circumstances of this case, counsel was not ineffective for failing to raise a Duren motion at the time of petitioner's trial. Our memorandum and order of March 24, 1982 should therefore be reinstated." The findings of the district court on this issue were not clearly erroneous, and there is no error of law in its conclusions.

In order to establish ineffective assistance of counsel Brunson must establish (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances, and (2) that he was prejudiced by his attorney's ineffectiveness. Harris v. Housewright, 697 F.2d 202 (8th Cir.1982); Eldridge v. Atkins, 665 F.2d 228 (8th Cir.1981), cert. denied 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). Counsel need not perform perfectly, and will not be held ineffective for failure to raise every tangential issue which might have a bearing on his client's case. "Counsel does not fail to render effective service if there is little or no likelihood that a reasonable lawyer under similar circumstances would consider the alleged defense reasonably essential to the case.... counsel's duty is to assert all apparent 'substantial defenses' available." Reynolds v. Mabry, 574 F.2d 978, 981 (8th Cir.1978).

The failure to anticipate a change in the law will not generally constitute ineffective assistance of counsel. United States v. Hach, 615 F.2d 1203 (8th Cir.), cert. denied 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). Although in Lee v. Missouri, 439 U.S. 461, 462, 99 S.Ct. 710, 711, 58 L.Ed.2d 736, 739 (1979), a companion case to Duren v. Missouri, the United States Supreme Court stated that Duren v. Missouri did not "announce any 'new standards' of constitutional law" not already evident from Taylor, it is clear that before Duren v. Missouri many attorneys believed the Missouri jury selection system was valid under Taylor, as evidenced by the Missouri Supreme Court's decision upholding the system in 1977.

The fact that those who believed the Missouri system to be constitutional were later proved wrong does not establish that they were incompetent. In Benson, the Missouri Court of Appeals dealt with an attorney's failure to make a jury panel challenge in a trial which, like Brunson's, occurred between the Taylor v. Louisiana and State v. Duren holdings. The court stated:

A movant asserting a Duren type claim, tried during the period involved, bears the burden of showing that reasonably competent lawyers rendering similar services under existing circumstances would have filed a motion to quash the jury panel and offered proof in support of it.

Hindsight based on the holding in Duren v. Missouri has no place in that evaluation. The issue must be considered in the light of whether a reasonably competent lawyer would have considered such a motion a substantial defense reasonably essential to the case at the time of trial. The determination of that question inevitably involves a professional judgment on the reach and scope of the holding in Taylor v. Louisiana. In the light of the [state trial court holdings that the Missouri jury selection system was valid] and the subsequent affirmance of those trial court holdings in the Supreme Court of Missouri, a determination that a reasonably competent lawyer should have predicted the holding in Duren v. Missouri is not possible.

611 S.W.2d at 544-45.

We agree with the district court that the Benson reasoning is persuasive.

Brunson argues that the district court based its decision in part on the Benson court's finding that in the summer of 1976 jury selection data was not available to the Public Defender's Office in anything other than uncompiled "raw" form which would have been "virtually impossible" to present to the trial court. 611 S.W.2d at 543. Brunson contends that the district court therefore violated this court's mandate in Hill v. Wyrick, 570 F.2d 748 (8th...