U.S. v. White

• Decision Date: 02 September 2003
• Docket Number: No. 02-1940.,02-1940.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Monica Ann WHITE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

341 F.3d 673

UNITED STATES of America, Plaintiff-Appellant, v. Monica Ann WHITE, Defendant-Appellee.

No. 02-1940.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2003.

Filed: September 2, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc November 14, 2003.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Judge Colloton took no part in the consideration or decision of this case.

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Richard D. Westphal, argued, Asst. U.S. Atty., Rock Island, IL, for appellant.

Joanne M. Lilledahl, argued, Cedar Rapids, IA, for appellee.

Before BOWMAN, MURPHY, and BYE, Circuit Judges.

BYE, Circuit Judge.

The government appeals the district court's order granting Monica Ann White's 28 U.S.C. § 2255 petition. We reverse.

On January 14, 1998, White was indicted on charges of conspiracy to distribute cocaine base, possession with intent to distribute cocaine base, and distribution of cocaine base. The case was tried and a jury returned verdicts of guilty on all counts. The district court imposed a mandatory life sentence after determining White had two prior felony convictions and the charges involved more than fifty grams of cocaine base. White's convictions and sentence were affirmed on direct appeal. United States v. White, 198 F.3d 252, No. 98-3975, 1999 WL 758648, at * 3 (8th Cir. Sept.24, 1999). On June 22, 2000, White filed a § 2255 petition alleging, among other things, ineffective assistance of counsel. An evidentiary hearing was held, and on January 30, 2002, the district court granted White's petition finding she had received ineffective assistance of counsel. The district court vacated her convictions and ordered a new trial. This appeal followed.

I

The government alleged a conspiracy to distribute crack cocaine beginning on or about November 12, 1994, and continuing through January 14, 1998. The proof at trial focused primarily on three discrete events. The first occurred on November 12, 1994, while White was a passenger in a vehicle operated by Demitrius McWilliams which was stopped by police. McWilliams had no driver's license and was arrested. In the course of the traffic stop, White gave police a false name and was arrested because the person whose name she used was wanted on an outstanding warrant. Police searched the vehicle incident to arrest and discovered twenty-seven grams of crack cocaine under White's seat. White and McWilliams were taken to the police station and questioned. While at the police station, an officer overheard White on the telephone asking someone to find an individual named Dennis Lee. The officer also overheard White discussing keys and taking care of her lock box. Later, relying on information provided by McWilliams, police convinced a magistrate judge to issue a search warrant for White's home. When police arrived at White's home they found Michael King who claimed to have just arrived from Chicago. King had a set of keys to the premises in his possession, including a key to a backyard shed. Police confiscated the keys and allowed King to gather his belongings and leave. A search of the premises uncovered a lock box containing $800 cash, a .22 caliber handgun, and approximately 105 grams of crack cocaine in the backyard shed. Police gained access to the lock box and shed using keys found among White's personal belongings. White was tried and convicted in state court for possession of the twenty-seven grams discovered during the search of the vehicle.

The second incident occurred on September 28, 1997, at approximately 1:09 a.m., when police in Davenport, Iowa, stopped Kevin Horne and discovered approximately thirty-five grams of crack cocaine in his possession. Horne told police he obtained the crack from White at her apartment approximately 1½ hours earlier and was delivering it for her. Horne further stated he had been delivering crack cocaine for White for approximately four months. Police obtained a warrant to search White's apartment and found $3,600 cash but no drugs attributable to White.

The final incident occurred on November 19, 1997, after Rolando D'Sean Nelson agreed to assist police who were investigating White. At the behest of the police, Nelson arranged a controlled buy of crack cocaine from White. White picked Nelson up and drove him to her residence. While at the residence, White sold Nelson approximately one ounce of crack cocaine. On the return trip, Nelson paid White for crack cocaine she had previously fronted and White agreed to front Nelson an additional ounce of crack cocaine. Additionally, White and Nelson discussed the possibility of Nelson taking over part of White's drug business; an earlier police raid on White's house; and White's use of a "stash house" to hide crack cocaine. The police recorded these events on 4½ hours of audio tape.

On January 27, 1998, White was arrested and agreed to talk to police. White confessed to police she met Mike King through McWilliams and purchased 1/8 kilogram quantities of crack cocaine from him monthly for six months in 1994. After she was released from state prison in 1995 or 1996, White resumed her dealings with King and by 1997 was again buying crack cocaine on a monthly basis. White also admitted meeting with King several times in Chicago and the Quad Cities to purchase drugs.

White was indicted and counsel was appointed to represent her. Six days before trial, White wrote the district court asking for a different attorney. The court denied the request. On the first day of trial, White renewed her request complaining she was not being properly represented. The district court again denied the motion, finding White's allegations were insufficient to support her request for new counsel.

The trial lasted three days. The government called twenty-eight witnesses and presented various items of evidence, including White's confession and the tape-recorded statements detailing the sale to Nelson and White's involvement in the drug trade. White's attorney called no witnesses and offered no evidence; he relied exclusively on cross-examination. The jury deliberated less than an hour before returning guilty verdicts on all three counts. White renewed her complaints about counsel's representation and the district court appointed a second attorney to assist trial counsel at sentencing. The second attorney also represented White in her unsuccessful direct appeal. Following the denial of her direct appeal, White filed a pro se § 2255 petition and a public defender was appointed to represent her in the habeas proceedings.

In her habeas petition, White alleged, among other errors, ineffective assistance by trial counsel in all phases of the trial and at sentencing. White also alleged ineffective assistance by the second attorney at sentencing. The district court denied the petition as to all claims except ineffective assistance by trial counsel. The district court, relying on United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), concluded trial counsel's performance was sufficiently deficient to be presumptively prejudicial. Alternatively, the court found White had established prejudice under the second prong of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The government appeals, arguing the district court misapplied Cronic, trial counsel's performance was not deficient under Strickland, and White failed to establish Strickland prejudice. We reverse.

II

A district court's decision in a habeas claim of ineffective assistance of counsel presents a mixed question of fact and law. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988) (en banc). We review the ineffective assistance issue de novo, but findings of underlying predicate facts are reviewed under the clearly erroneous standard. Id.

Claims of ineffective assistance of counsel require a showing "(1) that [the] attorney's performance was deficient, falling below professional standards of competence; and (2) that the deficient performance prejudiced [the] defense." Blankenship v. United States, 159 F.3d 336, 338 (8th Cir.1998) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). "In assessing counsel's performance, courts defer to reasonable trial strategies and `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). A showing of prejudice requires a determination by the court that "there is a reasonable probability [sufficient to undermine confidence in the outcome] that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Courts also consider "whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

There are instances when counsel's errors are so great or the denial of counsel is so complete as to create a presumption of prejudice, eliminating the need to prove Strickland prejudice. Cronic, 466 U.S. at 659, 104 S.Ct. 2039. Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential necessarily leads to the conclusion a trial is unfair if the accused is denied counsel at a critical stage of the proceedings. The Supreme Court has repeatedly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. See, e.g., Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592(1976) (holding "an order preventing petitioner from consulting his counsel `about anything' during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the...