Cagle v. Norris

• Decision Date: 24 January 2007
• Docket Number: No. 06-1786.,06-1786.
• Parties: Michael CAGLE, Jr., Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

474 F.3d 1090

Michael CAGLE, Jr., Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 06-1786.

United States Court of Appeals, Eighth Circuit.

Submitted: October 17, 2006.

Filed: January 24, 2007.

Jeffrey Marx Rosenzweig, argued, Little Rock, AR, for Appellant.

Lauren Elizabeth Heil, argued, Attorney General's Office, Little Rock, AR, for Appellee.

Before MELLOY, BEAM, and BENTON Circuit Judges.

BENTON, Circuit Judge.

Michael Cagle, Jr., was convicted in Arkansas state court of murder in the first degree and sentenced to forty-years' imprisonment. He exhausted state court remedies and petitioned for writ of habeas corpus in federal district court. The district court¹ denied his petition. Cagle appeals asserting structural error in a jury instruction, and violation of the right to present a defense by an improper exclusion of evidence. For each claim, he further alleges ineffective assistance of counsel. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Cagle was convicted of murder in the first degree for fatally shooting Christopher Odom. Preceding the shooting, he and Odom were involved with the same woman. On October 3, 1997, Cagle saw Odom at a tavern, approached him, and asked him to step outside. Cagle testified that once outside, he asked Odom about late-night phone calls to the woman's home. Odom became "real mad" and threw one punch; Cagle threw one punch, and the two began wrestling in a standing position. While wrestling, Cagle took a handgun from his belt and shot Odom twice in the torso. Cagle admitted fatally wounding Odom but claimed Odom had him in a headlock, causing him to begin to lose consciousness and believe that his life was in danger. Thus, Cagle gave evidence that the shooting was in self-defense, or justified.

Immediately after the shooting and before police arrived, Cagle left the scene in an automobile. After traveling a few blocks, the car was stopped by police. Cagle fled on foot, hiding the handgun in a nearby alley, where police later found it. Cagle ran home, changed clothes, and grabbed some clothing. He was then arrested.

Pretrial, the state prosecutor moved to exclude evidence that Odom's autopsy showed the presence of methamphetamine. Over Cagle's objection, the evidence was excluded because the trial court found its prejudicial effect substantially outweighed any probative value. As a proffer of evidence by Cagle during trial, but outside the hearing of the jury, the chief medical examiner of Arkansas, who preformed Odom's autopsy, testified that a sample of his heart blood showed meth at .24 micrograms per milliliter. Although this evidence was excluded, during trial many eye witnesses testified regarding Cagle's and Odom's behavior and acts before, during, and after the shooting.

At the close of all evidence, the jury orally was instructed: "In this case, the State of Arkansas must prove beyond a reasonable doubt each element of the offense charged. On the other hand, the defendant, Mr. Cagle, is not required to prove his innocence." The trial court further instructed the jury using Arkansas Model Criminal Instruction 2d 704:

Michael Cagle, Jr., asserts a defense to the charge of murder in the first degree that he was defending himself. This is a defense only if: first, Michael Cagle, Jr., reasonably believed that the victim was using or was about to use unlawful physical force upon him. And, secondly, Michael Cagle only used such force which he reasonably believed to be necessary.

Michael Cagle would not have been justified in using physical force upon another if, with the purpose of causing physical injury or death to Chris Odom, Michael Cagle, Jr., provoked the use of unlawful physical force, or, he was the initial aggressor.

However, if you find that Michael Cagle withdrew from the encounter and effectively communicated that to the person his intent to withdraw, then Michael Cagle, Jr., is no longer the initial aggressor when the other person continued or threatened to continue the use of unlawful physical force.

And finally, "physical force," involved was the product of combat by agreement which is not authorized by law.

Michael Cagle, Jr., in asserting this defense is required only to raise a reasonable doubt in your minds. Consequently, if you believe that this defense has been shown to exist or if the evidence leaves you with a reasonable doubt as to the guilt of murder in the first degree, then you must find him not guilty.

The jury convicted Cagle of murder in the first degree. Continuing with the same counsel, Cagle appealed to the Arkansas Court of Appeals claiming error in: (1) permitting prosecutorial comment on Cagle's right to remain silent; (2) allowing spectators to wear buttons depicting Odom; and (3) excluding evidence of the meth found during Odom's autopsy. The appellate court affirmed. Cagle v. State, 68 Ark.App. 248, 6 S.W.3d 801 (1999).

Utilizing new counsel, Cagle pursued post-conviction relief in the state trial court under Arkansas Rule of Criminal Procedure 37. Cagle claimed: (1) ineffective assistance of counsel in failing to object to jury instruction; (2) ineffective assistance of counsel in failing to adequately argue in favor of admitting the meth evidence; (3) ineffective assistance of counsel in failing to adequately argue against improper efforts to influence the jury, specifically spectators wearing buttons depicting Odom; (4) structural error in submission of an incorrect jury instruction; and (5) violation of the right to present a defense, specifically exclusion of the meth evidence. At the post-conviction relief hearing, Cagle called two witnesses, his trial counsel and a professor of pharmacology. Trial counsel testified regarding decisions made at trial, and the professor of pharmacology, accepted as an expert, testified in a proffer of evidence about meth intoxication. The trial court denied post-conviction relief. The Arkansas Supreme Court affirmed, finding the three assertions of ineffective assistance of counsel did not satisfy Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Regarding the claims of structural error and right to present a defense, the court found them inappropriate for post-conviction relief because they were not raised on direct appeal.

Pursuant to 28 U.S.C. § 2254, Cagle petitioned for habeas corpus in the district court, and his petition was denied. On appeal, he asserts the following claims: Submission of the jury instruction on justification caused structural error and counsel was ineffective in failing to object to it. Next, exclusion of the meth autopsy evidence denied Cagle the right to present a defense, and counsel was ineffective in failing to present evidence of the effects of meth intoxication.

II.

On appeal of a denial of habeas corpus, this court reviews the district court's findings of fact for clear error and its conclusions of law de novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005); Kenley v. Armontrout, 937 F.2d 1298, 1301 (8th Cir. 1991) (ineffective assistance of counsel claims reviewed de novo). If an issue is adjudicated on the merits in state court, a court shall not grant habeas relief unless the state court proceeding

(1) 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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). "A state court's decision is contrary to . . . clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision . . . and nevertheless arrives at a [different] result." Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (internal quotation marks omitted).

A.

Cagle asserts ineffective assistance in counsel's failures to object to the justification jury instruction and to adequately argue for admission of meth evidence. "An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Cagle, therefore, must "first establish that counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness." Winfield v. Roper, 460 F.3d 1026, 1033 (8th Cir.2006). If objectively unreasonable performance is established, Cagle then must "show that the deficient performance prejudiced his defense. This requires proving that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been more favorable to [Cagle]. A reasonable probability is one sufficient to undermine confidence in the outcome." Id. quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052 and Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (internal citations omitted). Specifically, it must be determined "whether there is a reasonable probability that the defendant would not have been found guilty if counsel's performance had not been ineffective." Lyons, 403 F.3d at 594.

Cagle asserts ineffective assistance of counsel in failing to object to the jury instruction regarding the justification of self-defense. At trial, without objection by either party, the jury was instructed...