White v. Roper

• Decision Date: 02 August 2005
• Docket Number: No. 04-2772.,04-2772.
• Citation: 416 F.3d 728
• Parties: Leamon WHITE, Petitioner-Appellee, v. Don ROPER, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

416 F.3d 728

Leamon WHITE, Petitioner-Appellee, v. Don ROPER, Respondent-Appellant.

No. 04-2772.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2005.

Filed: August 2, 2005.

Rehearing and Rehearing En Banc Denied September 9, 2005.^*

Stephen D. Hawke, AAG, argued, Jefferson City, MO, for appellant.

Charles W. Gordon, Jr., argued, Kansas City, MO (Ronald E. Partee on the brief), for appellee.

Before LOKEN, Chief Judge, BEAM and MELLOY, Circuit Judges.

LOKEN, Circuit Judge.

Leamon White was convicted of first-degree murder and sentenced to death by a Missouri state court in 1989. The Supreme Court of Missouri affirmed his conviction and sentence and the denial of state post-conviction relief. State v. White, 813 S.W.2d 862 (Mo. banc 1991), cert. denied, 502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992); State v. White, 873 S.W.2d 590 (Mo. banc 1994); White v. State, 939 S.W.2d 887 (Mo. banc), cert. denied, 522 U.S. 948, 118 S.Ct. 365, 139 L.Ed.2d 284 (1997). White then filed this petition for a federal writ of habeas corpus, which the district court denied. White appealed, and we held that certain constitutional issues were not procedurally barred from federal habeas review. White v. Bowersox, 206 F.3d 776 (8th Cir.), cert. denied, 531 U.S. 917, 121 S.Ct. 275, 148 L.Ed.2d 200 (2000). After a second appeal, we concluded that the district court had misconstrued our prior remand order. We again remanded the case, directing the court "to decide on their merits all claims alleged in the petition for writ of habeas corpus, not previously decided on their merits." White v. Luebbers, 307 F.3d 722, 731 (8th Cir.2002), cert. denied, 538 U.S. 981, 123 S.Ct. 1785, 155 L.Ed.2d 671 (2003).

On remand, the district court¹ held an evidentiary hearing on the remaining claims. In a thorough opinion, the court granted the writ, concluding that White's trial counsel provided ineffective assistance in failing to investigate and present exculpatory testimony by two witnesses in the guilt phase, and in failing to present mitigating evidence in the penalty phase. The State of Missouri appeals only the guilt phase determination, conceding that White is entitled to penalty phase relief. On appeal, the State argues that White failed to demonstrate counsel's constitutionally deficient performance, and that the district court misapplied the prejudice standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the Supreme Court of Missouri did not rule on the merits of this ineffective assistance claim after an evidentiary hearing, there is no state court ruling to which we must defer under 28 U.S.C. § 2254(d). After careful review of the record, we affirm.

I.

We briefly recite the facts critical to this appeal; additional background facts were detailed in our earlier opinions. In the early morning hours of January 6, 1987, three men went to the home of Don Wright and his girlfriend, Carol Kinney, to obtain crack cocaine. The trio murdered Wright and attempted to murder Kinney and a guest, Ernest Black. Kinney and Black survived and identified White as one of the three perpetrators at trial. The other two assailants were Roger Buckner, who was found guilty after a bench trial in which the death penalty was waived, and Cleveland Ford, who pleaded guilty to a non-capital offense. White's defense at trial was that Kinney and Black were mistaken in identifying White and that the third assailant was in fact a Jamaican drug trafficker named A.J. Constantine. Though other witnesses linked White to Buckner and Ford and tended to support the testimony of Kinney and Black, no physical evidence linked White to the crime scene.

Kinney's two young sons, Deonta and Raymond, were in the house at the time of the crime and saw the assailants. Both boys testified at Buckner's trial, which took place prior to White's trial. Both boys testified that one assailant spoke with a Jamaican accent and was known as "A.J." Deonta identified a picture of Constantine as A.J. Raymond could not identify the picture of Constantine as A.J. At White's trial, Raymond was called as a defense witness. He testified that White was not an assailant but again could not identify Constantine as the third killer. Deonta was not interviewed by trial counsel and did not testify. He would have testified that White was not an assailant and would have identified Constantine as the third killer.

Earlier on the night of the murder, the victims of the attack — Wright, Carol Kinney, Black, Deonta, and Raymond — were at the home of Dorothy Merrell and Carol's brother, Ben Kinney, who ran a crack house. In the district court's evidentiary hearing, Merrell testified that Buckner and a companion arrived looking for drugs while the others were there. Wright said he had drugs at his house and arranged to meet with Buckner at Wright's house later that night. Merrell testified that Buckner's companion was a Jamaican named Jay or A.J. Constantine. Similarly, Deonta told police after the attack that A.J. had been with Buckner at Merrell's house before the two came to Wright's house. Neither Deonta nor Mrs. Merrell knew White, and neither saw him on the night of the murder. Merrell was neither interviewed by defense counsel nor called as a witness at White's trial.

White's trial counsel, Robert Duncan, died in 1996, before the district court's evidentiary hearing. Second chair John O'Connor and Duncan's son, the defense investigator, both testified at the hearing. The district court concluded that counsel failed to conduct an adequate investigation because Duncan did not interview Deonta Kinney and Dorothy Merrell, did not attend Buckner's trial, and did not have copies of the boys' deposition transcripts from Buckner's case until the eve of trial. Lacking this important exculpatory information, counsel failed to call these two witnesses, who would have directly supported the defense theory of mistaken identification:

Deonta's testimony directly implicated Constantine and exculpated [White]. Deonta's identity was known to counsel, a reasonable investigation would have revealed his identification of Constantine as the man who entered with Buckner, and no plausible explanation has been offered as to why Deonta could not or should not have been called.

Coupled with this failure is the failure to call Dorothy Merrell ("Dorothy") to testify. . . . Dorothy identified Constantine's picture as a person she knew as a Jamaican drug dealer who went by the name "Jay" or "A.J." . . . Her testimony places Buckner and Constantine together shortly before the crime, and describes circumstances that led to Buckner's and Constantine's departure to Wright's house. Dorothy's potential for having information was known to counsel . . . .

White v. Roper, No. 97-1663, slip op. at 15-16 (W.D. Mo. June 14, 2004). The district court concluded that, by failing to investigate and call these two critical witnesses, "trial counsel's performance was so deficient as to fall below an objective standard of reasonable competence," and this deficient performance prejudiced White's defense. Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir.1995) (quotation omitted), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

On appeal, the State argues that the district court's decision is contrary to the principle that trial counsel's failure to call witnesses, in this case Deonta Kinney and Dorothy Merrell, is presumed to be reasonable trial strategy. See Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir.)...