Riley v. Wyrick, 82-2089

• Decision Date: 28 July 1983
• Docket Number: No. 82-2089,82-2089
• Citation: 712 F.2d 382
• Parties: Gary Leon RILEY, Appellant, v. Donald WYRICK, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 382

712 F.2d 382

Gary Leon RILEY, Appellant, v. Donald WYRICK, Warden, Appellee.

No. 82-2089.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 17, 1983.

Decided July 28, 1983.

Michael L. Lyons, St. Charles, Mo., for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.

Gary Leon Riley appeals from the district court's ¹ denial of his petition for a writ of habeas corpus. Riley contends that the state court denied him a fair trial by refusing to rehear his motion to suppress evidence when he was granted a new trial. Riley also argues that his trial counsel was ineffective in not objecting to the admission of the seized evidence at trial and consequently forfeiting appeal of the suppression ruling. For the reasons discussed below, we reverse the district court's judgment and remand with directions to issue the writ of habeas corpus unless the state court will allow Riley an untimely appeal of the trial court's suppression ruling.

I. Background

The events surrounding Riley's arrest and search are not entirely clear from the record before this Court. The state trial transcript discloses that the police stopped Riley and an associate, Dwayne Murrow, near the scene of an abandoned car accident. The police took Riley and Murrow back to the scene of the accident where a witness identified them as occupants of the car. Riley testified that the driver of the car then arrived on the scene and identified himself. The police ran a check on the license plate number and discovered that the car was implicated in a reported larceny of a can of oil from a service station. Riley could not produce any identification. The police loaded Riley and Murrow into a police van and took them to the precinct headquarters. When the two got out of the van, a police officer found a treasury check lying on the floor that had not been there before.

Inside the station, the police officers told Riley and Murrow that they would be "detained pending investigation." It is unclear from the record how much time elapsed before Riley was searched. Four officers were present at the time of the search. One told Riley to empty his pockets and take the "gum" out of his mouth. Riley refused and became verbally abusive. An officer then choked Riley until he spat out a cellophane packet containing three capsules later identified as heroin. He was booked for possession of heroin, possession of potent drugs, and two charges of stealing property worth under fifty dollars which apparently were later dropped.

Riley stood trial twice on the possession charges. Prior to the first trial, his public defender moved to suppress the heroin. The trial court held a hearing and denied the motion. At the close of all the evidence, the defense motioned for a mistrial based on a number of grounds, including the denied suppression motion and prosecutorial misconduct. The judge granted a new trial on the latter ground. Prior to the second trial, a new defense attorney, William O'Herin, again motioned to suppress the heroin. A different judge entered an order which states: "the motion to suppress evidence having heretofore been heard and overruled * * * this court does not consider this motion at this time." At trial, O'Herin proceeded on the theory that the officers planted the heroin on Riley. He did not object when the heroin was introduced into evidence. Riley was convicted and the Missouri Court of Appeals affirmed his conviction and five-year sentence on appeal. Missouri v. Riley, 583 S.W.2d 751 (Mo.App.1979).

Riley raised the issues now before this Court in Missouri state court pursuant to Mo.R.Crim.P. 27.26. After a hearing, the state court concluded that any error committed by the trial court in not allowing Riley a second suppression hearing prior to his second trial was not an appropriate issue for review in a Rule 27.26 proceeding for post-conviction relief. The court also concluded that O'Herin was not ineffective and did not object to the admission of the heroin because of a legitimate trial strategy. The Missouri Court of Appeals affirmed this judgment. Riley v. State, 620 S.W.2d 459 (Mo.App.1981). The federal district court subsequently denied Riley's section 2254 petition on the recommendation of the magistrate and this appeal followed.

II. Discussion

A. Right to a Second Suppression Hearing

Riley first contends that he was denied his fourteenth amendment right to fully and fairly litigate his fourth amendment claims when the trial court refused to rehear his motion to suppress before his second trial. He maintains that a different judge hearing the arguments of a different attorney could have reached a different result on the suppression issue. In Lewis v. Gourley, 560 F.2d 393, 394 (8th Cir.), cert. denied, 434 U.S. 987, 98 S.Ct. 618, 54 L.Ed.2d 483 (1977), we held that a second suppression hearing is not constitutionally required when the petitioner alleges no facts that are different from the facts developed in the prior motion to suppress. Here, Riley's attorney at the second trial apparently conceded, without the benefit of a transcript, that he had no new facts to offer with respect to the suppression motion; thus, a second hearing was not required. That concession under the circumstances present here is, however, an additional factor to be considered in determining the ineffective assistance of counsel issue to which we now turn.

B. Ineffective Assistance of Counsel

Riley asserts that he was denied effective assistance of counsel. In order to show an unconstitutional denial of effective counsel, the petitioner must demonstrate, first, that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances; and, second, that he was prejudiced by his attorney's incompetence. Harris v. Housewright, 697 F.2d 202, 204 (8th Cir.1982); Walker v. Solem, 687 F.2d 1235, 1236 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1789, 76 L.Ed.2d 357 (1983). Counsel is presumed effective, and the exercise of reasonable judgment--even if later proven unwise--does not constitute ineffective assistance. Harris v. Housewright, supra, 697 F.2d at 206. Thus, Riley bears a heavy burden in proving his ineffective assistance claim.

1. Attorney Incompetence

The first issue is whether Riley's attorney performed reasonably competently under the circumstances when he failed to object to the admission of the heroin at the second trial. Under Missouri law, O'Herin forfeited his client's right to appeal the suppression ruling by failing to object at trial. State v. Yowell, 513 S.W.2d 397, 402-403 (Mo.1974) (en banc); State v. Fields, 636 S.W.2d 76, 79 (Mo.App.1982). O'Herin testified in the Rule 27.26 hearing that he did not object to the admission of the heroin primarily because to do so would have been inconsistent with his trial strategy. Riley's defense was that the police set him up by planting the heroin at the time of the search. O'Herin thought the jury might view an objection to the admissibility of the heroin as an implicit confession of possession.

When defense counsel has a plausible strategic reason for failing to object, we are reluctant to second-guess such a tactical decision. See Comer v. Parratt, 674 F.2d 734, 737 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 125, 74 L.Ed.2d 108 (1982); Adail v. Wyrick, 671 F.2d 1218, 1220 (8th Cir.1982). If a tactical choice is wholly without reason, however, it jeopardizes a defendant's right to due process and is reviewable in federal habeas corpus proceedings. See Harris v. Housewright, supra, 697 F.2d at 209-211; Mullins v. Evans, 622 F.2d 504, 506 (10th Cir.1980). Moreover, the failure to object may in some instances be so derelict that the claim of ineffective assistance of counsel must be sustained. See Pinnell v. Cauthron, 540 F.2d 938, 942-943 (8th Cir.1976); United States v. Easter, 539 F.2d 663, 665 (8th Cir.1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977).

We can see no reasonable basis for O'Herin's tactical decision not to object at trial to the admission of the heroin. Riley's defense at trial and his suppression motion were not legally inconsistent. Riley was not precluded from challenging the constitutionality of evidence admitted against him simply because he also chose to contest the merits of the government's case. See, e.g., United States v. Caro, 637 F.2d 869 (2d Cir.1981); Thomas v. United States, 501 F.2d 1169 (8th Cir.1974). Moreover, O'Herin could have alleviated any danger that the jury might perceive a discrepancy between an objection to the admission of the heroin and Riley's defense by approaching the bench and making the objection out of the jury's hearing. O'Herin chose to forfeit appellate review of Riley's fourth amendment claim in order to place Riley, whose credibility was severely undermined on cross-examination, in a credibility contest with four police officers. We view this tactical choice as unreasonable under the circumstances. Riley thus has satisfied the first part of the ineffective assistance of counsel claim.

2. Prejudice

Riley has also shown that O'Herin's mishandling of his defense prejudiced him. Riley lost appellate review of his fourth amendment claim due to his attorney's concession that all facts were presented at the initial suppression hearing and his attorney's failure to object to the introduction of the questioned evidence at trial. ² In similar contexts, courts have found that a defendant has been denied effective assistance of counsel when the malfeasance or nonfeasance of his or her counsel effectively deprived the defendant of the right to appeal. See, e.g., Rodriguez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 1717, 23 L.Ed.2d 340 (1969) (attorney failed to file the notice of appeal)...