McCann v. Armontrout, 91-2589
| Decision Date | 30 September 1992 |
| Docket Number | No. 91-2589,91-2589 |
| Citation | 973 F.2d 655 |
| Parties | Clarence McCANN, Appellant, v. Bill M. ARMONTROUT, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Nathan S. Cohen, St. Louis, Mo., argued, for appellant.
Frank A. Jung, Asst. Atty. Gen., Jefferson City, Mo., argued, for appellee.
Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.
Clarence McCann ("petitioner") appeals from a final order entered in the United States District Court 1 for the Eastern District of Missouri denying his pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reversal, petitioner argues that the district court erred in (1) refusing to hold an evidentiary hearing; (2) holding, on the merits, that petitioner's trial counsel was not ineffective; and (3) failing to appoint counsel. For the reasons discussed below, we affirm the order of the district court.
On September 17, 1986, off-duty police officer Margaret O'Shaughnessy was buying a book at the Chapter One bookstore in University City, Missouri, when petitioner entered the store carrying an automatic handgun. O'Shaughnessy and the store clerk were the only ones in the bookstore at the time. Brandishing the gun, petitioner demanded the money in the cash register and O'Shaughnessy's wallet. As O'Shaughnessy handed petitioner her wallet, her badge became visible. She immediately pulled her off-duty revolver from her purse and announced that she was a police officer. Petitioner stepped back and his gun discharged. He then attempted to flee, but ran into a bookcase and fell, dropping his gun. Officers from the University City Police Department were called to the scene to assist O'Shaughnessy. Following his arrest, petitioner was taken to the police station where he was booked and questioned.
Petitioner was charged with two counts of attempted robbery and two counts of armed criminal action. He was tried in Missouri state court, where he was represented by the public defender's office. His theory of defense at trial was that he lacked the necessary criminal intent to commit the crimes charged because he was involuntarily intoxicated with phencyclidine (PCP) at the time the offenses occurred.
At trial, petitioner called Michael Bragg as a witness. According to Bragg, petitioner had stayed with Bragg's neighbor, Dan Mason (deceased at the time of trial), the night before the incident at the bookstore. Bragg testified that on the morning of the incident, petitioner and Mason were in Bragg's apartment when petitioner asked Mason for a cigarette and Mason complied. According to Bragg, Mason frequently laced his cigarettes with PCP. Bragg testified that petitioner smoked part of the cigarette but did not finish it because, according to Bragg, petitioner said it tasted "funny." 2 Then petitioner left.
Petitioner also testified at trial. He gave virtually the same account of the events in Bragg's apartment. According to petitioner, he could not remember anything that occurred from the time he left Mason's apartment until some time later when he found himself in a holding cell at the police station.
The state trial court instructed the jury on the defense of involuntary intoxication. The jury found petitioner guilty on all counts. Petitioner was sentenced to twenty-five years for each of the two counts of attempted robbery, to run concurrently, and ten years for each of the armed criminal action counts, also to run concurrently, for a total sentence of thirty-five years. 3
Petitioner filed a pro se motion for postconviction relief in the state trial court, pursuant to Missouri Supreme Court Rule 29.15. After new counsel was appointed for petitioner, an amended motion was filed which alleged, among other things, that petitioner had been denied effective assistance of counsel at trial because trial counsel failed to call an expert to testify about the possible effects of PCP. The state trial court held an evidentiary hearing on petitioner's ineffective assistance claim. The state court held that petitioner was not denied effective assistance of counsel at trial. McCann v. State, No. 584515 (Mo.Cir.Ct. Apr. 19, 1989). The Missouri Court of Appeals affirmed. State v. McCann, 792 S.W.2d 890, 894 (Mo.Ct.App.1990).
Having exhausted his state court remedies, petitioner, pro se, brought the present action in federal district court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court referred the matter to a magistrate judge pursuant to 28 U.S.C. § 636(b). Without holding an evidentiary hearing or appointing counsel to represent petitioner, the magistrate judge 4 recommended that the petition be denied based upon information in the state court record. McCann v. Armontrout, No. 90-1769C(6) (E.D.Mo. Mar. 22, 1991) (). The district court adopted the magistrate judge's report and recommendation. Id. (May 21, 1991) (order). This appeal followed. 5
Denial of evidentiary hearing
Petitioner first argues that the district court erred in failing to hold an evidentiary hearing on his claim that he was denied effective assistance of counsel at his trial in state court. Petitioner contends that the district court could not presume the correctness of the state courts' findings, and thus was obligated to hold a separate evidentiary hearing, because the merits of petitioner's claim were not resolved at the postconviction hearing in state court, 28 U.S.C. § 2254(d)(1), and the material facts were not adequately developed at that state court hearing. 28 U.S.C. § 2254(d)(3). 6 The State of Missouri argues in response that petitioner was not entitled to an evidentiary hearing in district court because petitioner was given a fair hearing in state court on his motion for postconviction relief and the facts in dispute could be determined on the basis of the state court record.
In Keeney v. Tamayo-Reyes, --- U.S. ----, ---- n. 5, 112 S.Ct. 1715, 1720 n. 5, 118 L.Ed.2d 318 (1992) (Keeney ), the Supreme Court interpreted § 2254(d) as not governing the question of when an evidentiary hearing is required, "rather, [§ 2254] lists exceptions to the normal presumption of correctness of state-court findings and deals with the burden of proof where hearings are held." Now, under Keeney, in order for petitioner to be entitled to an evidentiary hearing in federal district court, petitioner must show both cause for his failure to adequately develop the facts material to his ineffective assistance claim in the postconviction state court hearing and actual prejudice resulting therefrom; alternatively, petitioner must show that a fundamental miscarriage of justice would result from the denial of an evidentiary hearing in federal court. Id. --- U.S. at ----, 112 S.Ct. at 1720-21. In order for us to find that a fundamental miscarriage of justice would result from denial of an evidentiary hearing in federal court, petitioner must demonstrate that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986).
Ordinarily, we would remand the case to the district court to afford petitioner the opportunity to present evidence establishing cause and prejudice. However, no grounds for cause appear from the record. 7 Moreover, no prejudice to petitioner resulted because, as discussed below, we are able to determine the merits of petitioner's ineffective assistance claim from the state court record and we hold, on the merits, that petitioner was not denied effective assistance of trial counsel. For the same reason, we hold that a fundamental miscarriage of justice would not result from the denial of an evidentiary hearing in federal court because no violation of petitioner's constitutional rights occurred. Accordingly, the district court did not err in denying petitioner's request for an evidentiary hearing.
Effectiveness of trial counsel
Petitioner was represented by counsel at his state postconviction hearing and was given a full and fair opportunity to present evidence to demonstrate that, because his trial counsel failed to call a PCP expert as a witness, his Sixth Amendment rights were violated. The only witness to testify for petitioner at the postconviction hearing was petitioner himself. He testified that he had been represented by two attorneys from the public defender's office because his first attorney left the public defender's office shortly before his case went to trial. Public defender Andy Walker represented petitioner for approximately eighteen months. Public defender Paul Madison took over the case approximately three months before trial. According to petitioner, Walker had advised him on the involuntary intoxication defense and told petitioner that he had arranged for an expert to testify at trial about the effects of PCP. Petitioner testified that he told Madison before his trial began about Walker's plan to call a PCP expert, but Madison was only interested in discussing the possibility of a plea. Petitioner did not enter a plea and Madison tried the case. Madison did not call a PCP expert to testify at trial.
Petitioner's postconviction counsel did not call either of petitioner's two trial attorneys--Walker or Madison--as witnesses at the postconviction hearing. Nor did he call the PCP expert who allegedly would have testified at trial, or any other PCP expert. The state trial court found petitioner's testimony to be "not credible." McCann v. State, No. 584515, slip op. at 9. As a result, the state trial court concluded:
[Petitioner] has failed to substantiate his allegation that an expert existed who could testify to the effects of PCP on [petitioner's] intent at the time of the offense.
No evidence was adduced showing that if such an expert did...
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