Drake v. Wyrick

• Decision Date: 18 February 1981
• Docket Number: No. 80-1476,80-1476
• Citation: 640 F.2d 912
• Parties: Ronald DRAKE, Appellant, v. Donald W. WYRICK, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 912

640 F.2d 912

Ronald DRAKE, Appellant, v. Donald W. WYRICK, Warden, Appellee.

No. 80-1476.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1980.

Decided Feb. 18, 1981.

James C. Jones, St. Louis, Mo., for appellant.

John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before HEANEY, Circuit Judge, GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

On October 11, 1973, Ronald Drake was convicted in the Circuit Court of the City of St. Louis, Missouri, of murder in the first degree. He was sentenced to life imprisonment; that judgment was affirmed on direct appeal. State of Missouri v. Drake, 518 S.W.2d 335 (Mo.App.1975). Drake also petitioned unsuccessfully for post-conviction relief under Missouri Supreme Court Rule 27.26. Drake v. State of Missouri, 582 S.W.2d 711 (Mo.App.1979).

In this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, Drake alleges (1) the existence of newly discovered evidence, (2) that he was denied effective assistance of counsel at trial, and (3) that his constitutional right to testify in his own defense was needlessly "chilled" by the prospect of impeachment by evidence of prior convictions. The District Court ¹ dismissed Drake's petition upon the Report and Recommendation of a United States magistrate. We affirm the District Court.

The Missouri Court of Appeals described the State's trial evidence as follows:

The essence of the state's evidence was that the appellant met two men, Simms and Selvage, on the day of the homicide and spent the afternoon in their company. Late in the afternoon the trio visited the residence of one Newton, who allegedly owed Simms some money. They encountered the victim (Eugene Westmoreland) while there, and the victim joined their party as they left in an automobile driven by Simms. The victim sat in the front passenger's seat, with appellant directly behind him. As the foursome proceeded to the residence of a Barbara Smallwood at appellant's request, appellant shot the victim. When the victim fled the car, appellant pursued him and fired several more shots. Appellant then had to run to catch up to the car, which was proceeding slowly down an alley. A young woman who heard the shots saw an unidentified man running after a car in that alley following the gunfire. When asked later why he had shot the victim, appellant told Simms that the victim had testified against him "back about '64 or '65."

At the original trial both Simms and Selvage testified essentially as outlined above. Both had criminal records. Appellant, who also had an extensive criminal record, did not take the stand in his own defense.

Drake v. State of Missouri, 582 S.W.2d at 712-13.

I.

Petitioner's first claim on this appeal is that he is entitled to habeas corpus relief on the basis of newly discovered evidence. The claim of newly discovered evidence relevant to the guilt of a state prisoner is generally not a ground for relief on federal habeas corpus. Mastrian v. McManus, 554 F.2d 813, 822 (8th Cir. 1977), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977). To be a basis for relief, "such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a State prisoner is not a ground for relief on federal habeas corpus." Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1962). The evidence which petitioner claims here as warranting relief must be viewed with this standard in mind.

The new evidence offered by petitioner consists of testimony, presented at the hearing on petitioner's Rule 27.26 motion, by a LaVaughn Farmer, that on the evening of the shooting Earl Simms told him that Drake had not committed the crime and had not been in the car when the shooting took place. Farmer said he had told police about the statement during their investigation but had not told Drake until a year later. At the same hearing, the state introduced evidence that Farmer did not tell the police about the alleged statement by Simms, that he came forward with the statement only after encountering Drake at the penitentiary, and that Farmer had an extensive criminal record. The hearing judge determined that Simms did not tell Farmer that petitioner was innocent of the murder, and that Farmer did not give such alleged information to the police. These findings are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).

We fail to see how Farmer's testimony, even if it were deemed credible, bears upon the constitutionality of Drake's detention. See Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759. The newly-discovered evidence at issue here consists of an uncorroborated assertion by a fellow inmate of the petitioner that one of the state's witnesses told him a version of the crime different from the one the state's witness offered at trial. We cannot conclude that such evidence would "probably produce an acquittal on retrial." Mastrian v. McManus, 554 F.2d at 823. For the foregoing reasons, the petitioner's first ground for relief is denied as without merit.

II.

Petitioner's second claim of error is that he was denied due process because he had ineffective assistance of counsel. It is well settled that to prevail on a claim of ineffective assistance of counsel, a defendant must show "that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby." United States v. Hood, 593 F.2d 293, 297 (8th Cir. 1979); United States v. Easter, 539 F.2d 663, 666 (8th Cir.), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1976). Petitioner bears a heavy burden of proving such prejudice resulted from alleged ineffective assistance of counsel. Witham v. Mabry, 596 F.2d 293, 298 (8th Cir. 1979); Morrow v. Parratt, 574 F.2d 411, 413 (8th Cir. 1978); Johnson v. United States, 506 F.2d 640, 645 (8th Cir. 1974).

The petitioner claims that his trial counsel failed under the above standard in four respects: (1) he failed to arrange for the testimony of a witness who would testify regarding petitioner's alibi defense; (2) he failed to make an investigation as to the alleged motive for the offense; (3) he failed to advise petitioner to testify in his own defense; and (4) he failed to perform effectively on the record as a whole. The same assertions were presented to and rejected by the state court in Drake's Rule 27.26 motion.

Petitioner asserts that he had a valid alibi defense to the charge against him. Specifically, he alleges that he was not present when the victim was shot, but instead was in the company of one Barbara Smallwood at her home. He further asserts that he told his appointed counsel about his alibi defense and asked to have Ms. Smallwood testify at his trial. At petitioner's Rule 27.26 hearing this account was disputed by petitioner's trial attorney. The attorney testified that he had no reason whatsoever to believe that Smallwood's testimony would be relevant or useful, as petitioner had never told him at any time that Smallwood was a possible alibi witness, nor had petitioner even told his attorney where he claimed to have been at the time of the murder or suggested the names of any witnesses. The state court found that the petitioner "did not request his defense attorney to get Barbara Smallwood to testify in his behalf." The state court's finding was adopted in the District Court's opinion below.

Where a petitioner has received a full and fair hearing of his claim in state court, the factual findings reliably and specifically made by that court are presumed to be correct. 28 U.S.C. § 2254(d); Franklin v. Wyrick, 529 F.2d 79 (8th Cir. 1976). See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). We have found nothing in the record to demonstrate that the evidentiary hearing on this factual issue was anything less than "full and fair" and we affirm the District Court's ruling that the state court's finding is supported by substantial evidence.

Petitioner alleges that his defense counsel failed to investigate and contest the state's evidence regarding his motive for the killing. At trial, Earl Simms testified that petitioner told him two days after the murder that he had killed the victim because the victim had testified against him in 1964 or 1965. Petitioner, at his Rule 27.26 hearing, averred that he asked his counsel before trial to introduce the court records of his prior convictions to show that the victim had never testified against him. Petitioner alleges that counsel never investigated the matter and did nothing to refute Simms's testimony regarding Drake's motive. Petitioner's trial attorney testified at the Rule 27.26 hearing that he did not know the content of Simms's testimony until the time of trial, that he then checked the records of petitioner's prior convictions, and that he made a tactical decision not to introduce petitioner's criminal record to rebut the testimony regarding motive. The hearing court made the following findings of fact:

Movant's trial counsel did not know until time of trial that Earl Roosevelt Simms would testify that movant committed the homicide because the victim had testified against movant in prior criminal cases.

Movant's counsel, upon learning of Simms' evidence, did search court files to determine whether or not this was true but could find nothing to prove or disprove Simms' testimony. Moreover, movant's counsel's tactical trial...