Sanders v. Trickey

• Decision Date: 24 May 1989
• Docket Number: No. 88-2182EM,88-2182EM
• Parties: Robert SANDERS, Appellant, v. Myrna TRICKEY, Superintendent, Missouri Eastern Correctional Center, and William L. Webster, Missouri Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 205

875 F.2d 205

Robert SANDERS, Appellant, v. Myrna TRICKEY, Superintendent, Missouri Eastern Correctional Center, and William L. Webster, Missouri Attorney General, Appellees.

No. 88-2182EM.

United States Court of Appeals Eighth Circuit.

Argued April 10, 1989.

Decided May 24, 1989.

Howard B. Eisenberg, Carbondale, Ill. (appointed), for appellant.

Patrick King, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before FAGG, FLOYD R. GIBSON and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

Robert Sanders (appellant), a Missouri state prisoner, appeals from a judgment entered July 28, 1988 in the Eastern District of Missouri, Eastern Division, Clyde S. Cahill, District Judge, which adopted the report and recommendation of Magistrate William S. Bahn and denied appellant's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254 (1982). Appellant was convicted of first degree robbery, Mo.Rev.Stat. Sec. 569.020 (1978), on December 21, 1982 following a jury trial. He was sentenced to life imprisonment as a persistent offender.

Appellant commenced the instant habeas action alleging that, under Strickland v. Washington, 466 U.S. 668, (1984), he was prejudiced at trial by the ineffectiveness of his counsel. He claims that his trial counsel was ineffective because she failed to interview an alleged accomplice who appellant claims might have testified that appellant was innocent of the robbery for which he was convicted. Appellant also claims that his trial counsel was ineffective because she failed to subpoena properly or call to testify several potential witnesses who appellant asserts would have impeached two other witnesses who identified appellant at trial as a participant in the robbery.

We hold that defense counsel's decision not to interview the alleged accomplice did not constitute ineffective assistance of counsel because it reflected a valid strategic consideration. We also hold that appellant has failed to show that he was prejudiced either by defense counsel's failure to interview the alleged accomplice, or her failure to subpoena or call the potential impeachment witnesses.

We affirm.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

The robbery for which appellant was convicted occurred on December 22, 1981 at Finlay's Fine Jewelry (Finlay's) counter in the Stix, Baer & Fuller department store at the Westroads Mall in St. Louis County, Missouri. Kevin Peistrup (Peistrup), an employee of Finlay's working at the counter, was on his knees straightening out a display case when he was approached by a man and a woman. When Peistrup asked the man and woman whether he could be of assistance, the man pulled a gun and ordered Peistrup to stand back. The woman attempted to open the jewelry display cases without success. Peistrup was ordered to open them for her. Peistrup complied with this demand. The woman emptied the cases.

Meanwhile Steve Huber (Huber), a second Finlay's employee then at the back of the jewelry department, noticed several people standing by Peistrup and went over to help him. As Huber approached Peistrup, a second man shouted a warning to the gunman, who pointed his gun at Huber and held him at bay. The robbers escaped with more than $80,000 in jewelry which has never been recovered.

The police showed several photos of potential suspects to Peistrup and Huber. At first, Peistrup picked out a photo of one David Little (Little) as possibly being that of the gunman. It appears that Huber also may have identified Little as the gunman. Later, however, both Peistrup and Huber identified appellant's picture in a photo array as that of the gunman. Six months later both picked appellant out of a line-up. At trial, they also identified appellant as the gunman.

Before trial, appellant retained Susan Roach (Roach) as his trial counsel. As part of her preparation for trial, Roach telephoned Denise Irona (Denise) ¹, a woman being held for separate trial as the suspected female robber. Appellant apparently had told Roach that he thought it possible that Denise might testify at his trial that she had participated in the robbery but that he had not. After this phone conversation and for various reasons, Roach abandoned the idea of calling Denise to testify at appellant's trial. She did not speak to her again. Denise later pleaded guilty to participating in the robbery.

Roach also attempted but failed to subpoena three police officers she had hoped would impeach the identifications by Peistrup and Huber of appellant. At one point during the trial Roach obtained a half-day continuance so that she could obtain the officers' testimony. When she was unable to do so, the trial judge refused to grant a further continuance.

Roach decided not to call another potential witness who had been working at the department store at the time of the robbery. The witness apparently had expressed some doubts as to appellant's guilt. Roach interviewed this witness, but decided not to call her because Roach thought that the witness was hostile, that her information was "worthless", that the witness was potentially uncontrollable, and that she might possibly blurt out some information prejudicial to appellant while on the witness stand.

Appellant was convicted of first degree robbery and was sentenced to life imprisonment. Roach withdrew as appellant's counsel following his sentencing. Appellant's conviction was affirmed on direct appeal. State v. Sanders, 661 S.W.2d 52 (Mo.Ct.App.1983). Appellant then pursued a collateral attack on his conviction in the St. Louis County Circuit Court pursuant to Missouri Supreme Court Rule 27.26 (Rule 27.26 proceeding), claiming in part that Roach had provided inadequate assistance of counsel at trial under Strickland, supra. The state Circuit Court rejected this claim. The Missouri Court of Appeals, however, reversed, holding that Roach's failure to interview Denise constituted ineffective assistance of counsel. The Missouri Supreme Court accepted transfer and reversed the Court of Appeals, holding that Roach's performance as defense counsel had not been ineffective. Sanders v. State, 738 S.W.2d 856 (Mo.1987).

Appellant then commenced the instant habeas action in the Eastern District of Missouri, again claiming that Roach's performance had been ineffective. The district court adopted the magistrate's report and recommendation and denied the petition. We granted a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253 (1982). This appeal followed.

For the reasons set forth below, we affirm.

II.

In Strickland, supra, the Supreme Court set forth a two-step analysis which we must apply in evaluating a claim of ineffective assistance of counsel. First, appellant "must show that counsel's performance was deficient", in that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment". Strickland, supra, 466 U.S. at 687. The standard of conduct is that of a reasonably competent attorney. Id. To comply with this requirement, appellant must prove that his counsel's assistance fell below an objective standard of reasonableness, considering all of the circumstances faced by the attorney at the time in question. Id. at 688-89; York v. Lockhart, 856 F.2d 61, 63 (8th Cir.1988).

There is a "wide range" of reasonable professional assistance. A court must avoid second-guessing trial strategy. Accordingly, appellant must overcome a "strong presumption" that his counsel's actions constituted reasonable trial strategy under the circumstances. Strickland, supra, 466 U.S. at 689; Walker v. Lockhart, 852 F.2d 379, 381 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1551, 103 L.Ed.2d 854 (1989). See also United States v. Cronic, 466 U.S. 648, 658, (1984) ("we presume that the lawyer is competent to provide the guiding hand that the defendant needs [and] the burden rests on the accused to demonstrate a constitutional violation").

Second, appellant must show that he was prejudiced by his counsel's ineffectiveness, or that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt". Strickland, supra, 466 U.S. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Finally, as in all proceedings under 28 U.S.C. Sec. 2254, we must presume that state court findings of fact are correct if reliably and specifically made and set forth in writing after a full and fair hearing. 28 U.S.C. Sec. 2254(d) (1982); Drake v. Wyrick, 640 F.2d 912, 914-15 (8th Cir.1981); Franklin v. Wyrick, 529 F.2d 79, 82-83 (8th Cir.), cert. denied, 425 U.S. 962 (1976). A state court's finding that counsel rendered effective assistance, however, is not a finding of fact but a mixed question of law and fact reviewable de novo. Strickland, supra, 466 U.S. at 698, 104 S.Ct. at 2070; Walker, supra, 852 F.2d at 381. The underlying findings of fact, however, are entitled to the presumption of correctness. Strickland, supra, 466 U.S. at 698; Walker, supra, 852 F.2d at 381.

With these general principles in mind, we turn to appellant's claims.

III.

Appellant contends that Roach provided ineffective assistance of counsel in that she failed to interview Denise, and that this failure prejudiced him. He asserts that Roach's failure to interview Denise reflected incompetence because Roach might have learned that Denise was willing to provide exculpatory testimony by admitting participation in the robbery and stating that appellant was not the gunman.

It is undisputed that Roach never conducted an extensive interview of Denise prior to appellant's trial. The Missouri Supreme Court, however, found during its review of the Rule 27.26 proceeding that Roach had telephoned Denise but that "[e]vidently no information...