Houston v. Lockhart, 90-2592

• Decision Date: 08 January 1993
• Docket Number: No. 90-2592,90-2592
• Citation: 982 F.2d 1246
• Parties: Mikel W. HOUSTON, Appellant, v. A.L. LOCKHART, Director of the Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1246

982 F.2d 1246

Mikel W. HOUSTON, Appellant, v. A.L. LOCKHART, Director of the Arkansas Department of Correction, Appellee.

No. 90-2592.

United States Court of Appeals,

Eighth Circuit.

Submitted July 21, 1992.

Decided Jan. 8, 1993.

William McNova Howard, Jr., Pine Bluff, AR, argued, for appellant.

Olan Warren Reeves, Little Rock, AR, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS S. ARNOLD, Circuit Judges, En Banc.

LOKEN, Circuit Judge, with whom RICHARD S. ARNOLD, Chief Judge, McMILLIAN, FAGG, WOLLMAN, BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, join.

Arkansas inmate Mikel W. Houston appeals the district court's denial of his petition for a writ of habeas corpus without an evidentiary hearing. Houston claims that, because of the ineffective assistance of his trial counsel, favorable polygraph test results were not admitted into evidence in the jury trial that led to his conviction for rape of his twelve-year-old daughter. On the unique facts of this case, we conclude that Houston is entitled to an evidentiary hearing on his ineffective assistance claim. Accordingly, we reverse.

I.

In December 1985, Houston's twelve-year-old daughter, L, told North Little Rock police that he had digitally raped her on two occasions that fall. Houston was subsequently charged with rape by deviate sexual activity. On October 1, 1986, six weeks before trial, Houston underwent a polygraph exam at his own expense. Twice, he answered a series of six questions:

1. Do you intend to answer each question on this test truthfully?

A. Yes.

2. Have you ever with sexual intent put your hand on [L's] genital area?

A. No.

3. Have you ever put your finger in [L's] vagina?

A. No.

4. Have you ever with sexual intent fondled [L] in any manner?

A. No.

5. Have you invented or made up any part of your story that you told me today concerning these allegations?

A. No.

6. Have you deliberately lied to any question I have asked you on this examination?

A. No.

On October 7, the polygraph examiner sent the test results to Houston's trial attorney along with a report stating:

Analysis of Mr. Houston's polygrams revealed no attempted deception to the relevant questions. It is my opinion he has been truthful in his answers during the polygraph examination.

Although this report and the polygraph test results are part of the record of Houston's postconviction proceedings, they appear nowhere in the trial record. They were not mentioned at any recorded pretrial proceeding nor offered into evidence at trial, and this omission was not raised as an issue on direct appeal.

Houston was tried on December 9, 1986. The trial testimony established that Houston and Linda Teas divorced in 1977; L was their only child. As part of an established visitation schedule, L spent most weekends in 1985 at the two-bedroom house where Houston lived with his mother, his brother and sister-in-law, and their two young children. When L visited, she and at least one other child shared a queen-size bed in the bedroom where Houston's semi-invalid mother slept in a special hospital-style bed. Houston's brother and sister-in-law slept in the second bedroom, and Houston slept on a couch.

Through the summer of 1985, L was excited about these visits. In the fall, however, Houston twice scolded L, first when she drove a moped across several city blocks without permission, and on another visit when she picked up a loaded gun. After the moped incident, Houston immediately took L home and told her she could "stay there until you learn to mind me"; after the gun incident, Houston "cautioned" her.

In November, L told one of her cousins that her father had "touched" her. The cousin told Houston's sister-in-law, who questioned L. When pressed for details, L said, "I knew you wouldn't believe me," and ran from the room. L's mother heard the story in early December and took L to the North Little Rock police, who took a taped statement. On the advice of police, Teas next went to Arkansas Children's Hospital, where L was given a physical examination that revealed no abnormality, a result consistent, the examining physician later testified, both with digital rape and with no rape at all.

Given the lack of supporting medical evidence, L's testimony was the prosecution's only direct proof of the alleged rape. L testified that during the night of October 26, 1985, when she awoke from sleeping on the queen-size bed in her grandmother's bedroom, her underpants were around her knees and her father "took his finger and pushed it in and out" of her vagina. She further testified that on a later visit "the same thing" happened, but this time Houston "used something greasy." Linda Teas testified that her daughter was "not exaggerating about this." However, Teas also admitted that she had tried to have the charges dropped but was unsuccessful--a North Little Rock detective told her that the matter was out of her hands.

Houston took the stand in his own defense. He denied ever sexually molesting his daughter and noted that L had accused him of rape shortly after he scolded her about the moped and the loaded gun. He stated that he had only gotten into bed with L and the other children on one occasion, when he came in from work around midnight, dozed on the couch, woke up cold, could find no extra blankets, and went into the bedroom where the children were sleeping. By picking up and moving each child, he was able to lie down fully clothed on the outer portion of the mattress and partially cover himself with a blanket. L was the closest child to him.

Houston's testimony was partially corroborated. L's eleven-year-old cousin testified that, on the night Houston got into bed with the children, the cousin stayed awake after Houston moved him and saw nothing happen between Houston and L. Houston's sister-in-law testified that she sat in the dining room reading that night, could see virtually the entire bed where Houston and the children lay, and did not see Houston rape his daughter. She further testified that about a week before L complained about Houston, L had accused Houston's brother of lying on a bed "touching himself" and looking at her; unbeknownst to L, the sister-in-law had been in the bedroom at the time and knew the accusation to be false.

The jury returned a guilty verdict and, after a bifurcated penalty proceeding, sentenced Houston to the maximum penalty, life in prison. ¹ On appeal to the Arkansas Supreme Court, Houston unsuccessfully challenged only the sufficiency of the evidence and the fairness of the guilt/punishment bifurcation procedure. See Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (Ark.1987).

Houston then filed a pro se petition seeking postconviction relief under Arkansas Criminal Procedure Rule 37. He attached the polygraph examiner's report and alleged ineffective assistance of his trial counsel because:

Both defense and prosecution agreed to use polygraph results at the trial, but after the petitioner's polygraph was administered twice, and showed the petitioner to be telling the truth, the state decided against the polygraph results, and defense counsel made no adverse issue of it.

The Arkansas Supreme Court summarily denied the motion, concluding that Houston could satisfy neither prong of the ineffective assistance of counsel standard adopted in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The polygraph test results were inadmissible because there was no evidence of a written agreement by both parties agreeing to their admissibility, the Court explained, citing Foster v. State, 285 Ark. 363, 687 S.W.2d 829, 832 (1985), cert. denied, 482 U.S. 929, 107 S.Ct. 3213, 96 L.Ed.2d 700 (1987). Therefore, counsel's performance was not deficient because "an objection by the defense would have been futile." ² Moreover, Houston had failed to prove the requisite prejudice because "[w]e cannot say that there is a reasonable probability that the test results would have so bolstered the petitioner's credibility that it is likely he would have been acquitted." Houston v. State, No. CR 87-85, 1988 WL 14162, 1988 Ark. LEXIS 121 (Ark. Feb. 22, 1988).

Houston then filed this pro se habeas corpus petition in the district court, alleging that his trial counsel had provided ineffective assistance because:

defense attorneys were ineffective when they failed to make an issue of the state's breach of agreement to allow polygraph results of the petitioner to be presented as evidence....

In an in camera hearing the prosecutor, defense and the judge ³ had a verbal agreement that if the petitioner would submit to a polygraph examination, that the results of that test, whether positive or negative, would be permitted to be used as evidence.

However, after ... said tests, the prosecutor reneged on the agreement, stating "polygraphs can only hurt my case".... [T]he defense failed to make an issue of the matter, and neglected to raise the matter on direct appeal to the Arkansas Supreme Court.

The district court denied Houston's petition without a hearing, agreeing with the Arkansas Supreme Court that "an objection by counsel would have been futile" because the polygraph tests were inadmissible absent a written agreement between the parties. Houston v. Lockhart, No. PB-C-88-294 (E.D.Ark. Aug. 28, 1990). On appeal, after we appointed counsel and heard oral argument, a panel of this court affirmed, one judge dissenting. We subsequently vacated the panel opinion and granted rehearing en banc. Houston v. Lockhart, 958 F.2d 826 (8th Cir.1992). We now reverse and remand for an evidentiary hearing.

II.

"Under 28 U.S.C. § 2254, a federal district court must hold an evidentiary hearing when a [habeas] petition alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair...