Wade v. Armontrout

Decision Date12 August 1986
Docket NumberNo. 85-1852,85-1852
Citation798 F.2d 304
PartiesNathaniel WADE, Appellant, v. Bill ARMONTROUT, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Edward J. Griesedick, Jr., St. Louis, Mo., for appellant.

Stephen D. Hawke, Jefferson City, Mo., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

Nathaniel Wade, a state prisoner, filed a 28 U.S.C. Sec. 2254 petition for writ of habeas corpus in the district court. In his petition Wade argued that his constitutional rights were violated in the state court proceedings because (1) he was denied effective assistance of counsel; (2) the trial court abused its discretion in denying a request for continuance; (3) the indictment was insufficient; (4) there was a material variance between the indictment and the evidence at trial; and (5) there was no evidence to support his conviction as a persistent offender. The district court adopted the findings of the magistrate and held the petition was without merit and dismissed it. We affirm in part and reverse and remand in part.

On the evening of March 28, 1982 a police officer was dispatched to check out a report of prowlers at the Roadway Terminal in St. Louis, Missouri. The officer observed an individual running from the terminal lot to a station wagon. He saw the individual place something in the back of the car and then enter on the passenger side of the car. The officer stopped the car and observed approximately ninety items of assorted clothing contained in cellophane bags scattered in the rear of the car. Roadway personnel stated that some of the clothing in the car had been stolen from the terminal. Both Wade, the driver of the car, and Willie Dean, the passenger, were arrested.

The indictment was filed on June 11, 1982, and a public defender was appointed to represent Wade. Trial was set for July 26, 1982. Five continuances were granted; four were at Wade's request. On December 15, 1982 the public defender office was granted leave to withdraw because of a conflict of interest, and the special assistant public defender office was appointed to represent Wade. On December 28, 1982 Wade's counsel entered an appearance on his behalf. Trial was set for January 18, 1983.

Counsel started working for the special assistant public defender office, her first employment as an attorney, on December 16, 1982. She had approximately three weeks to prepare the case. On the day of trial, counsel informed the court that she was not prepared to try the case because she had visited with Wade only once, had not interviewed any of the state's witnesses, and had not visited the scene of the alleged offense. The court denied the motion for continuance, but granted counsel an opportunity to interview each state witness for five minutes before the witness testified. She also had the opportunity to interrogate the arresting officer in a pretrial suppression hearing.

Wade argues that he had an alibi which counsel failed to present at trial. He states he was home with his mother when the theft occurred, and that his mother would testify in his defense. He alleges that the codefendant, Willie Dean, called him and asked for a ride because his car would not start, and that Dean would have testified that he (Wade) was not involved in the theft. Counsel presented no defense evidence at trial. 1

Wade was found guilty of stealing, a violation of Mo.Rev.Stat. 570.040 (stealing, third offense). His conviction was affirmed on direct appeal. State v. Wade, 666 S.W.2d 869 (Mo.Ct.App.1984). Wade then filed a petition for writ of habeas corpus in the district court, which was dismissed. Wade appeals the dismissal of his claims and argues that we should reverse the decision of the district court, or alternatively remand the case for an evidentiary hearing. A petitioner is entitled to a hearing when the facts alleged, if true, would entitle him to relief. Brown v. United States, 656 F.2d 361, 363 (8th Cir.), cert. denied, 454 U.S. 1059, 102 S.Ct. 611, 70 L.Ed.2d 598 (1981).

Wade's first argument is that he was denied effective assistance of counsel because counsel was not prepared for trial, did not investigate the prosecution's case, did not investigate any defense witnesses, did not present any evidence of his alibi, and, in fact, offered no evidence at trial. The standard of review for ineffective assistance of counsel was set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court recognized that the right to effective assistance of counsel is necessary to protect the fundamental right to a fair trial. Id. at 684-85, 104 S.Ct. at 2063. In order to reverse a conviction on the ground that he was denied effective assistance of counsel, a defendant must show that counsel's performance was deficient and that this deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064. Counsel's performance is held to the standard of reasonable professional assistance, and she has a duty to bring "such skill and knowledge as will render the trial a reliable adversarial testing process." Id. at 688, 104 S.Ct. at 2065.

Investigation is an essential component of the adversary process. "Because [the adversarial] testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies ... 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' " Kimmelman v. Morrison, --- U.S. ----, ----, 106 S.Ct. 2574, 2589, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066-67).

In Kimmelman, the Supreme Court held that counsel's failure to conduct discovery, based on a mistaken belief that the State had an obligation to turn over inculpatory evidence, resulted in deficient performance. Id. at ----, 106 S.Ct. at 2588-89. Here, it was not just the discovery process that counsel failed to conduct, but practically the entire investigation of the case. The apparent extent of her investigation was one prior conversation with Wade. This failure to investigate was not the result of strategy or a reasonable decision not to investigate, but rather from a lack of preparation. Counsel failed to act as a...

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