Hendricks v. Lock

• Decision Date: 13 December 2000
• Docket Number: No. 00-1309EM,00-1309EM
• Citation: 238 F.3d 985
• Parties: (8th Cir. 2001) DANNY HENDRICKS, APPELLANT, v. KELLY LOCK, SUPERINTENDENT OF CENTRAL MISSOURI CORRECTIONAL CENTER, APPELLEE. . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 985

238 F.3d 985 (8th Cir. 2001)

DANNY HENDRICKS, APPELLANT, v. KELLY LOCK, SUPERINTENDENT OF CENTRAL MISSOURI CORRECTIONAL CENTER, APPELLEE.

No. 00-1309EM.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: December 13, 2000.

Filed: February 9, 2001.

On Appeal from the United States District Court for the Eastern District of Missouri.

Before Wollman, Chief Judge, Richard S. Arnold and Hansen, Circuit Judges.

Richard S. Arnold, Circuit Judge.

In this appeal, the State of Missouri seeks to reverse the conditional grant of habeas corpus to Danny Hendricks, a Missouri prisoner. The District Court,¹ in granting the writ, held that the insufficient performance of appellate counsel had in effect denied Mr. Hendricks his first appeal of right in the state courts. We agree and affirm.

I.

The facts, viewed in a light most favorable to the verdict, are as follows. A confidential informant helped an undercover Missouri detective to arrange to buy drugs from Mr. Hendricks's sister, Connie Wood. Mr. Hendricks was present during the transaction, which involved 100 dollars' worth of cocaine. After the sale had been completed, and Ms. Wood had left the room, Mr. Hendricks said that if the detective tried the drugs and liked them, he could sell him a larger quantity the next day. The detective said that if he liked the drugs, he would get in touch, and they would "do the deal." The proposed transaction never took place.

On the basis of these facts, Mr. Hendricks was convicted at a bench trial of selling a controlled substance in violation of Missouri Revised Statutes § 195.211. The statutory definition of sale includes an offer for sale, see Mo. Rev. Stat. § 195.010(37), but "offer for sale" is not defined. See generally Mo. Rev. Stat. § 195.010 (defining terms). Mr. Hendricks appealed, arguing that the statute did not authorize a conviction unless the person charged with offering drugs for sale was proved to have had access to some drugs with which to make the offer good. His appeal was rejected without a decision on the merits. The Missouri Supreme Court explained as follows:

Appellant's argument does not allow a decision. Appellant does not say why there must be evidence that he had access to the substance. Appellant cites cases that he contends show the need for a presence of a controlled substance, but he does not connect them to the present case in any respect, nor does he provide explanation of why they might be authoritative. His statements, although thought-provocative, are nothing more. His statements are presented, then left unsupported by any reasoning. Left as they are, completely undeveloped, they provide nothing for meaningful review.

State v. Hendricks, 944 S.W.2d 208, 210 (Mo. 1997) (en banc).² Mr. Hendricks filed a motion to recall the mandate, arguing that he had received ineffective assistance of appellate counsel. The Missouri Supreme Court summarily denied this motion. Petitioner then urged the claim by way of a 28 U.S.C. § 2254 motion in United States District Court. The Court's order granting that motion is before us now.

II.

The District Court held, under the familiar standard of Strickland v. Washington 466 U.S. 668 (1984), that Mr. Hendricks's appellate counsel did not exercise skill and diligence at the level to be expected of a reasonably competent attorney. The State does not challenge that part of the order. But attorney incompetence, standing alone, does not necessarily justify a writ of habeas corpus. In the usual case, a defendant who seeks the protection of Strickland must also show that counsel's incompetence caused him some material harm. See id. at 687. In the District Court's view, Mr. Hendricks's case fell within an exception to that rule for defendants who are, actually or constructively, altogether denied the assistance of counsel in a proceeding where a constitutional right to it exists. See id. at 692. For that reason the District Court did not require Mr. Hendricks to show a reasonable probability that he would have prevailed in the state appellate court with the benefit of competent counsel.

The State first argues that the District Court applied the wrong standard of review. 28 U.S.C. § 2254(d) limits the circumstances in which a petitioner may obtain federal habeas corpus relief with respect to a claim adjudicated on the merits in a state court: such relief is available only if the state's adjudication of the claim

(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 a State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). The State contends that, under these provisions of the statute, the District Court could issue the writ only if the Missouri Supreme Court's denial of the motion to recall the mandate on the ineffective-assistance claim involved an unreasonable application of clearly established Supreme Court precedent. We are asked to reverse on the ground that the District Court engaged in an inappropriate de novo review.

We do not believe that the case should go back to the District Court for any error concerning standard of review. First, the State cites no passage in the District Court's order that would tend to support the inference that the Court applied de novo review. The order does recite that a de novo standard was applied in adopting the recommendation and proposed order of the United States Magistrate Judge, but the standard applied there is not challenged. Second, the State conceded at oral argument that Mr. Hendricks's appellate counsel was constitutionally deficient. Thus, any § 2254(d)(1) question would go only to the District Court's review of an implied state decision on Strickland prejudice. Because the prejudice issue in this case is purely legal, our own de novo review of the District Court's decision allows us to determine and apply for ourselves the correct standard of review under § 2254(d)(1). "The rule is well established that a decision of a lower court can be affirmed if 'the result is correct although the lower court relied upon a wrong ground or gave a wrong reason.' " Office and Prof. Employees Int'l Union, Local 2 v. Washington Metropolitan Area Transit Authority, 724 F.2d 133 (D.C. Cir. 1983), quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (further internal quotations omitted).

II.

For the sake of argument, we adopt the State's interpretation of the Missouri Supreme Court's order denying the motion to recall the mandate. That is, we assume that the order implies a decision on the merits that Mr. Hendricks was not prejudiced by his counsel's deficient performance. The question then becomes whether such a decision would (1) be contrary to, or (2) involve an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). An "unreasonable application" of precedent is one that, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Long v. Humphrey, 184 F.3d 758, 760 (8th Cir. 1999).

In our view, it would be unreasonable to hold that a defendant in Mr. Hendricks's position was not prejudiced by his counsel's delinquency. It is clear that "the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits," and that the same constitutional protection extends to the first appeal of right. Evitts v. Lucey, 469 U.S. 387, 395-96 (1985). The Supreme Court has also clearly stated that, where the ineffective performance of counsel deprives a defendant of his appeal altogether, post-conviction relief under 28 U.S.C. § 2255 cannot be conditioned on a showing that the appeal would likely have succeeded. See Rodriquez v. United States, 395 U.S. 327, 330 (1969) ("Those whose right to appeal has been frustrated should be treated exactly...