Jones v. Roper

• Decision Date: 18 November 2002
• Docket Number: No. 02-3800WM.,02-3800WM.
• Parties: William R. JONES, Appellant, v. Don ROPER,<SMALL><SUP>1</SUP></SMALL> Superintendent, Potosi Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

311 F.3d 923

William R. JONES, Appellant, v. Don ROPER,¹ Superintendent, Potosi Correctional Center, Appellee.

No. 02-3800WM.

United States Court of Appeals, Eighth Circuit.

Submitted November 18, 2002.

Filed November 18, 2002.

Rehearing and Rehearing En Banc Denied November 19, 2002.

Cheryl A. Pilate, Charles M. Rogers, Kansas City, MO, for appellant.

Frank A. Jung, Asst. Attorney General, Jefferson City, MO, for appellee.

Before BYE, RICHARD S. ARNOLD, and BEAM, Circuit Judges.

PER CURIAM.

Petitioner moved under Fed.R.Civ.P. 60(b) to vacate the previous judgment of the District Court, adverse to his petition for habeas corpus. The District Court² has denied this motion, and petitioner has appealed to this Court. Because the District Court granted a certificate of appealability as to all issues raised in petitioner's motion, the appeal is now before us on its merits. We assume for present purposes that petitioner can surmount any procedural difficulties — for example, whether his motion ought to be treated as a second or successive petition.

Petitioner presents no new claims. Instead, he argues that "[s]ubsequent legal developments," decisions in two cases that we will shortly discuss, establish that this Court was in error when, on the initial appeal, we denied relief on petitioner's ineffective-assistance-of-counsel claim. In these cases, petitioner asserts, legal claims identical to the one he urged were upheld. It is therefore fundamentally unfair for petitioner to be executed, we are told, when similarly situated litigants have been granted relief.

We respectfully disagree with this argument, for the following reasons:

1. The first "subsequent" or "intervening" legal development on which petitioner relies is the opinion of the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This opinion is neither "subsequent" nor "intervening." Williams was decided on April 18, 2000, more than a year before our opinion on the first appeal, Jones v. Delo, 258 F.3d 893 (8th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1936, 152 L.Ed.2d 841 (2002), was decided. Williams was on the books at the time of the first Jones decision. Indeed, petitioner cited Williams in his petition for rehearing and petition for rehearing en banc in this Court, and in his petition for certiorari in the Supreme Court, both of which petitions were denied.

2. In any event, we do not read Williams as inconsistent with our previous opinion in this case. The claim asserted by Williams was "identical" to that asserted by Jones only in the abstract. That is, both Williams and Jones argued that their trial counsel were ineffective in the constitutional sense because of the failure to introduce certain mitigating evidence. Some of the evidence in question in Williams is similar to some of the evidence in Jones. Williams, for example, argued that his lawyer had not introduced evidence that he had been abused by his father, and that he suffered from a mental defect. But there are also important differences in the evidence that counsel in the two cases failed to adduce. Williams was sentenced to death because the jury found it probable that he would be dangerous in the future (this being an aggravating circumstance under Virginia law). Yet, Williams's lawyer did not introduce testimony from correctional officers who were willing to testify that the defendant would not pose a danger while incarcerated. Nor did counsel offer prison commendations awarded to Williams for his help in breaking up a prison drug ring and for returning a guard's missing wallet. See Williams, 529 U.S. at 373 n. 4, 120 S.Ct. 1495. In addition,

The habeas hearing also revealed that the same experts who had testified on the state's behalf at trial believed that Williams, if kept in a "structured environment," would not pose a future danger to society.

529 U.S. at 370-71, 120 S.Ct. 1495. No issue of this kind was present in Jones's case.

It is appropriate to observe at this point that a court's judgment as to whether counsel has rendered constitutionally ineffective assistance is necessarily a particular one. The question is, first, whether counsel's representation fell below an objective standard of reasonableness, and, second, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These are the kinds of judgments that can be made only in the unique context of a particular record, and only after carefully weighing the entire record, which is what we did on the prior appeal. As Justice Kennedy has put it, the Strickland test "of necessity requires a case-by-case examination of the evidence." Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (opinion concurring in the judgment).

3. The second case that petitioner relies on is Simmons v. Luebbers, 299 F.3d 929 (8th Cir.2002). Again, petitioner asserts that Mr. Simmons raised a claim identical to Mr. Jones's allegation, and that it is fundamentally unfair for Simmons to have obtained relief, while Jones did not. Simmons does qualify as a subsequent legal development. It is an opinion of a panel of this Court handed down after our previous opinion in this case. The Simmons Court itself apparently did not consider that it was acting inconsistently with our previous opinion. Simmons does not even cite Jones. Indeed, if Jones had really denied relief on a claim identical to that asserted by Simmons, it would have been the duty of the Simmons panel to reject the petition before it on the authority of Jones. One panel is not at liberty to depart from a prior holding by another.

As in the case of Williams, we do not find the Simmons opinion to be inconsistent with our prior action in this case. It is certainly true that Mr. Simmons claimed ineffective assistance of counsel, and that, with respect to the penalty phase of his case, he prevailed. It is also true that Simmons successfully relied upon the failure of his lawyers to present certain evidence at the penalty phase, including abuse at the hands of his mother, running away from home and possibly being raped, growing up in an impoverished neighborhood characterized by street violence, and low intelligence. Simmons's lawyers' failure to present this evidence was held to be ineffective assistance of counsel, and Simmons was held to have met the Strickland prejudice test. Some of this evidence is similar to the evidence that Jones's lawyers failed to introduce. But that does not show that Simmons is inconsistent with Jones. On the contrary, as we have observed, a judgment as to Strickland prejudice has to be made in the context of a particular record. As we attempted to explain in our previous opinion, the trial strategy that Jones's present counsel believe his trial counsel should have pursued faced substantial difficulties. It was inconsistent with a number of facts of record, facts that were not seriously disputed, and it would probably have required that Jones testify in the guilt phase of the trial, or at the very least in the penalty phase, despite very substantial difficulties with Jones's performance as a witness. None of these factors was present in Simmons, at least so far as this Court's opinion discloses.

In addition, the course of the Simmons case through the Missouri courts appears to have played a significant part in the conclusion reached by the Simmons panel. Simmons's claim, as we have stated, was that his lawyers had failed to present certain evidence about his childhood and psychology. The Missouri Supreme Court, in rejecting the claim that this evidence would have made a constitutionally significant difference in Simmons's trial, cited the fact that, in a previous trial, also ending in conviction, this evidence had been presented, but had not been persuasive to the jury. As this Court's Simmons opinion makes clear, the Missouri Supreme Court's...