Paul v. U.S.

• Decision Date: 22 July 2008
• Docket Number: No. 05-3431.,05-3431.
• Parties: Jeffery William PAUL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

534 F.3d 832

Jeffery William PAUL, Appellant, v. UNITED STATES of America, Appellee.

No. 05-3431.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2007.

Filed: July 22, 2008.

Sean O'Brien, argued, Kansas City, MO, Jennifer A. Merrigan, Kansas City, MO, Robert L. McGlasson, Decator, GA, on the brief, for appellant.

Richard Broughton, Dept. of Justice, argued, Washington, DC, Steven Snider, AUSA, William Cromwell, AUSA, Forth Smith, AR, on the brief, for appellee.

Before COLLOTON, BEAM, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

A jury convicted Jeffery William Paul of murder, while aiding and abetting another, in violation of 18 U.S.C. §§ 2 and 1111(a), and for knowing use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924. The jury sentenced Paul to death under the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. This court affirmed Paul's conviction and sentence. United States v. Paul, 217 F.3d 989 (8th Cir.2000).

Paul then moved for a writ of habeas corpus under 28 U.S.C. § 2255, arguing, among other things, that he was denied his Sixth Amendment right to effective assistance of counsel at trial and sentencing. The district court¹ denied relief without a hearing, and denied Paul's application for a certificate of appealability. A panel of this court granted a certificate on two questions relating to the assistance of counsel: (1) whether trial counsel were ineffective for failing to investigate and present evidence of Appellant's mental, medical, and physical history, and (2) whether trial counsel were ineffective for failing to investigate and assert Appellant's incompetence to stand trial. On appeal, Paul also contends that he was mentally incompetent to proceed in the district court during this habeas corpus action. This court granted a certificate of appealability on the question whether Appellant has a constitutional right to competence during federal habeas corpus proceedings and, if so, whether that constitutional right was violated. For the reasons that follow, we affirm the district court's denial of Paul's § 2255 motion.

I.

Paul was convicted of murder, while aiding and abetting another, for the killing of 82-year-old Sherman Williams at the Hot Springs National Park in Arkansas.² According to evidence adduced at trial, on June 22, 1995, Paul and an acquaintance, Trinity Ingle, followed Williams from downtown Hot Springs to a walking trail in the National Park, where they first robbed and beat Williams, and then shot him in the head and shoulder. Paul and Ingle attempted to hide the body by dragging it away from the trail. Four days later, a hiker found Williams's body under logs and rocks, with hands and ankles bound by duct tape. A medical examiner testified that Williams suffered gunshot wounds to the head and chest, and that the wound to the head caused his death. Williams's vehicle was found in a remote area of the park, and Ingle's latent fingerprint was recovered from inside the car.

As explained in our opinion resolving Paul's direct appeal, several of Paul's acquaintances testified that he confessed to involvement in the murder. Kris Rogers testified that Paul admitted that he and Ingle had killed an old man in the park after beating him and kicking him in the head. According to Rogers, Paul stated that he and Ingle both shot Williams before dragging the body into the woods. Christine Lapaglia testified that Paul told her that he had killed someone when he kicked him and broke his neck. Cindy Wallace testified that Paul had a recurring dream about following an old man, taking his money, beating him severely, and then shooting him in the head. Dan Coughlin testified that Paul admitted that he and another man had robbed an old man, and then shot and killed him. Paul's older brother testified that Paul and Ingle had picked him up on the afternoon of Williams's murder in a vehicle that matched the description of Williams's stolen car. See Paul, 217 F.3d at 995. Rebecca Pingle testified that she saw Paul on the day of the killing and that Paul "was limping." Paul told Kris Rogers the day after Williams was killed that "his foot hurt." And after admitting to Rogers that he had been involved in Williams's killing, Paul showed Rogers his shoe, "which looked like it had been splattered with blood."

Paul left Arkansas shortly after the murder, and he was eventually apprehended in South Carolina in August 1996. After his arrest, Paul confessed to participating in Williams's murder, but denied shooting Williams himself. Paul stated that after he and Ingle followed Williams into the federal park, Ingle drew a .38 caliber revolver from his waist and pointed it at Williams, demanding Williams's money and car keys. According to Paul's post-arrest statement, Ingle instructed Paul to bind Williams's wrists and ankles using duct tape, after which Ingle struck Williams using the butt of his gun and then kicked Williams twice in the head, while Paul kicked him once in the chest. Paul stated in the interview that he started to leave the scene when Ingle said that he was not going to do prison time for the robbery. Paul said the two men turned and walked back to Williams, where Ingle shot him twice. Paul explained that he and Ingle then dragged the body approximately thirty feet off the hiking trail, and that Paul hid the victim's wallet under some rocks. Ingle was convicted in a separate trial for aiding and abetting first degree murder and use of a firearm during and in relation to a crime of violence. He was sentenced to life imprisonment. See United States v. Ingle, 157 F.3d 1147 (8th Cir.1998).

Paul's trial counsel presented no witnesses during the guilt phase of proceedings, and relied on cross-examination of prosecution witnesses to develop evidence in support of a defense. During the penalty phase, Paul's counsel presented testimony from Paul's mother, Paula Paul, and an audio recording of Ingle, created surreptitiously by the government, in which Ingle made statements to a cellmate that arguably supported Paul's mitigation case.³ After a short deliberation, the jury decided to impose a sentence of death.

Paul filed his § 2255 motion, spanning 340 pages, on January 30, 2002. The district court denied relief on January 31, 2005. With respect to alleged ineffective assistance of counsel regarding investigation of Paul's personal history, the district court, citing Saunders v. United States, 236 F.3d 950, 952 (8th Cir.2001), held that Paul's allegations were insufficient to allow an assessment of potential prejudice to the defense, because he had failed to identify the conjectural witnesses and the substance of their testimony. Alternatively, the court found no basis to conclude that the evidence discussed generally by Paul likely would have changed the result of the trial, because the proposed testimony would have been "cumulative at best." The court observed that the jury unanimously found four mitigating factors, that eight jurors found a fifth mitigating factor, and that the jury thus apparently accepted the mitigation testimony of Paul's mother. As for counsel's assistance on the issue of Paul's competency, the court ruled that trial counsel was sufficiently diligent, and that it was highly unlikely that the court would have ordered another competency hearing if counsel had requested it. In response to this order, Paul filed a motion to reconsider or to vacate the order, pursuant to Federal Rule of Civil Procedure 59(e) and 60(b), and submitted witness declarations to support his claim of ineffective assistance of counsel. The district court denied the motion, concluding that the arguments and affidavits raised issues that were previously addressed, and did not alter the court's conclusions. (A 1995).

II.

The first issue identified in the certificate of appealability is whether Paul's constitutional right to effective assistance of counsel was violated when his attorneys failed to investigate and present evidence of Paul's mental, medical, and physical history. Paul argues that counsel's failure in this respect prejudiced him at both the guilt and penalty phases of the trial.

To establish ineffective assistance of counsel, Paul must show that his counsel's performance was deficient, and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, Paul must demonstrate a reasonable probability that the outcome would have been different but for the deficient performance. Malcom v. Houston, 518 F.3d 624, 626 (8th Cir.2008). A reasonable probability is less than "more likely than not," Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), but it is more than a possibility. White v. Roper, 416 F.3d 728, 732 (8th Cir.2005). A reasonable probability "is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Paul argues that counsel failed to interview and present prospective witnesses who could have strengthened his case at both phases of the trial. He points to several declarations gathered from these witnesses by post-conviction counsel to demonstrate that favorable evidence could have been presented on his behalf. Paul contends that if this evidence had been submitted to the jury, there is a reasonable probability that the jury would have acquitted him of capital murder or imposed a sentence of life imprisonment rather than death.

The government defends the professional competence of Paul's trial counsel, emphasizing that counsel spent several months preparing for trial, hired a mitigation specialist to compile background materials and to locate witnesses, requested additional funds (albeit unsuccessfully) when the specialist exhausted what was authorized by the district court, sought psychiatric experts to examine Paul, presented a mitigation...