Dokes v. Lockhart, 92-2350

• Decision Date: 15 June 1993
• Docket Number: No. 92-2350,92-2350
• Parties: Kenneth DOKES, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 833

992 F.2d 833

Kenneth DOKES, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 92-2350.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 15, 1993.

Decided May 10, 1993.

Rehearing and Rehearing En Banc Denied

June 15, 1993.

Craig Lambert, Little Rock, AR, argued (Craig Lambert and John Wesley Hall, Jr., on the brief), for appellant.

Jackie Ward Gillean, Little Rock, AR, argued (Winston Bryant and Darnisa Evans Johnson, on the brief), for appellee.

Before LOKEN and HANSEN, Circuit Judges, and VAN SICKLE, ^* Senior District Judge.

HANSEN, Circuit Judge.

Kenneth Dokes appeals the district court's judgment ¹ denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Dokes was convicted in Arkansas state court of theft and, with co-defendant Beverly Willis, of robbery and aggravated robbery. The same attorney ("trial counsel") represented both Dokes and Willis at their joint trial. In his petition, Dokes alleged ineffective assistance of counsel due to a conflict of interest resulting from trial counsel's dual representation of the co-defendants and trial counsel's failure to investigate an alleged speedy trial violation. We affirm.

I.

Dokes was convicted in Arkansas state court after a bench trial of three crimes, which were charged in three separate cases but tried in a combined proceeding. Dokes was charged alone in the first case, a theft of property occurring in 1984. The second case involved a January 7, 1985, simple robbery and the third involved an aggravated robbery occurring on January 24, 1985, both of which robbery charges included Beverly Willis as a co-defendant. Dokes was sentenced to a ten-year term of imprisonment for the theft charge, a ten-year term for the robbery charge, and a 44-year term for the aggravated robbery charge, the terms to run consecutively. Both Dokes and Willis appealed to the Arkansas Supreme Court and their convictions were affirmed. Willis v. State of Ark., 299 Ark. 356, 772 S.W.2d 584 (1989). Although represented by trial counsel on appeal, Dokes attempted to file a supplemental pro se appellate brief, which the Arkansas court refused to accept.

Dokes filed for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. In his Rule 37 petition, Dokes alleged (1) that his speedy trial rights had been violated and (2) that trial counsel was ineffective due to a conflict of interest based on the co-defendants' conflicting testimony concerning the alleged speedy trial violation. Dokes also filed a motion to amend his Rule 37 petition in which he reiterated his claims. The Arkansas Supreme Court refused to accept the amended petition because its length violated the court's ten-page limit on Rule 37 petitions. Dokes v. State, 300 Ark. 424, 779 S.W.2d 182 (1989).

After the Arkansas Supreme Court denied his petition for post-conviction relief, Dokes filed a petition for a writ of habeas corpus in the United States District Court in which he raised several issues. The magistrate judge found Dokes' claim alleging trial counsel's conflict of interest due to co-defendants' incompatible defenses to be procedurally barred as Dokes had not raised it anywhere in his prior pleadings. The magistrate then held an evidentiary hearing to pursue the allegations regarding the speedy trial issues. After the hearing, the magistrate judge denied relief as to all claims. On appeal to this court, Dokes raises the following issues: (1) trial counsel's conflict of interest due to the co-defendants' incompatible defenses on the merits; (2) trial counsel's conflict of interest with respect to the speedy trial issue; (3) trial counsel's ineffective assistance for failure to investigate the speedy trial issue.

II.

A.

Dokes asserts that he was denied effective assistance of counsel due to trial counsel's dual representation of Dokes and his co-defendant Willis on the robbery and aggravated robbery charges. Dokes argues that his defense at trial was a total lack of involvement while co-defendant Willis's defense was that, instead of robbery by use of force, she and Dokes conducted a simple "pigeon drop" scam to defraud their victims of their money and belongings. The magistrate judge found that Dokes failed to raise this specific claim of trial counsel's alleged conflict of interest due to incompatible defenses on the merits in the state court and thus it was procedurally barred.

A habeas petitioner seeking relief from a state conviction may not raise a claim in federal court that he or she failed to raise at the state level in accordance with applicable state procedures absent a showing of cause and prejudice. Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations omitted). Dokes asserts that he adequately presented the incompatible defenses issue to the state court and cites to several statements in his Rule 37 petition and his supplemental Rule 37 petition to support this assertion. Each of these statements, however, is lifted directly from a discussion about the alleged speedy trial violation, to which Dokes refers numerous times throughout his lengthy pleadings. We also disagree that Dokes raised the issue in his supplemental pro se brief or adequately implied it when he listed his grounds for relief in his amended Rule 37 petition.

After carefully reviewing Dokes' pleadings at the various stages of his appeal and post-conviction proceedings, we agree with the magistrate judge that Dokes failed to preserve his incompatible defenses issue. Nevertheless, we reach the same result by addressing the merits of Dokes' claim. See Thompson v. Mo. Bd. of Parole, 929 F.2d 396, 399 (8th Cir.1991) (pro se petitions should be given liberal construction) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)).

B.

Joint representation by a single attorney is not a per se violation of a defendant's right to effective assistance of counsel. Hayes v. Lockhart, 766 F.2d 1247, 1249-50 (8th Cir.) (citing Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978)), cert. denied, 474 U.S. 922, 106 S.Ct. 256, 88 L.Ed.2d 263 (1985). Rather, a defendant must show that there was an actual conflict that adversely affected the attorney's performance in order to establish an ineffective assistance of counsel claim. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Hayes, 766 F.2d at 1250 (citations omitted). " 'An actual conflict occurs when counsel cannot use his best efforts to exonerate one defendant for fear of implicating the other.' " Hayes, 766 F.2d at 1250 (quoting United States v. Auerbach, 745 F.2d 1157, 1162 (8th Cir.1984)). Dokes argues that his and his co-defendant's allegedly incompatible defenses placed trial counsel in an irreconcilable conflict of interest.

Trial counsel testified at the hearing before the magistrate judge that both Dokes and Willis admitted to him that they conducted pigeon drop scams but maintained that they did not use force. In light of this information, as well as the positive identifications of both defendants by each of the victims, trial counsel considered the best strategy to be to eliminate the use of force and hope for a conviction, if any, on a lesser included offense. Trial counsel believed that Willis, by describing the pigeon drop scam in her own rather entertaining way, could convince the court that no weapons were involved. According to trial counsel, Dokes understood that Willis was to testify and expressed no objections. Trial counsel did not recall Dokes' ever telling him he wanted to pursue a separate defense of non-participation.

At trial, no one suggested that one defendant may have been significantly more culpable than the other, see Parker v. Parratt, 662 F.2d 479, 484 (8th Cir.1981), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 91 (1982), or that one of the defendants may have worked alone. Rather, the nature of this particular crime strongly supports the wisdom of a joint defense. The pigeon drop scam that Willis described requires the participation of at least two con-artists. One person must act the part of the gullible simpleton who recently came upon a large sum of money, while the other must play the role of the opportunistic passerby. The simpleton engages the victim in conversation about how she might safeguard her newly-acquired wealth. The opportunistic passerby then casually walks by, leading the victim to believe that the two con-artists have never met before. The passerby becomes drawn into the conversation and convinces the victim to join him in defrauding the simpleton of her wealth. The passerby urges the victim to "front" some of his own money in order to gain the trust of the simpleton, but in the end, the victim is the one who finds himself defrauded. The success of few crimes depends as strongly on the active participation of at least two individuals as does the success of the pigeon drop scam. As a result, not only did Dokes and Willis not shift the blame to one another, they would likely have been unable to do so successfully.

Finally, Dokes argues that had he and Willis both intended to admit culpability of a lesser included offense, trial counsel would not have attacked the identification testimony of the victim witnesses. Trial counsel explained, however, that he simply saw a weakness in the testimony of a victim who inadvertently stated he saw only the back of the male participant and that he "was reaching for straws[,] trying anything [he] could at that point." Ultimately, the victims identified both Dokes and Willis in each of the cases charged against them. Trial counsel's effort to discredit a key government witness in the face of overwhelming evidence of guilt does not amount to proof of Dokes' non-participation defense.

After examining the transcript of both the trial and the habeas...