Williams v. Bowersox

• Decision Date: 25 August 2003
• Docket Number: No. 02-3540.,02-3540.
• Citation: 340 F.3d 667
• Parties: Anthony WILLIAMS, Petitioner-Appellant, v. Michael BOWERSOX, Superintendent, PCC, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.3d 667

Anthony WILLIAMS, Petitioner-Appellant, v. Michael BOWERSOX, Superintendent, PCC, Respondent-Appellee.

No. 02-3540.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2003.

Filed: August 25, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc Denied: September 29, 2003.

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

Susan K. Roach, argued, Chesterfield, MO, for appellant.

Stephen D. Hawke, argued, Asst. Atty. Gen., Jefferson City, MO, for appellee.

Before LOKEN, Chief Judge, HANSEN, and BYE, Circuit Judges.

BYE, Circuit Judge.

Anthony Williams appeals the district court's¹ denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. He argues the state court's rejection of his ineffective assistance of counsel claim was an unreasonable application of clearly established federal law. We disagree thereby affirming the district court.

I

Williams was charged in Missouri state court by indictment on April 19, 1994, with one count of murder in the first degree and one count of armed criminal action. The charges stem from the shooting death of a fourteen-year-old boy. The crime occurred in front of a building where a youth dance had been held, and where Williams and the victim had earlier argued.

At trial, Williams's defense counsel made an opening statement immediately after that of the state. Defense counsel informed the jury specific witnesses would be called to support the theory that police had misidentified Williams as the shooter. Despite these opening remarks, defense counsel did not call the witnesses. All witnesses mentioned by defense counsel in his opening statement were called by the state, except Eric Palmer and Kevin Mongrum. Both men had been interviewed before trial by defense counsel.

The jury convicted Williams, and he was sentenced to life imprisonment without the possibility of parole. Williams filed a pro se motion for post-conviction relief. Thereafter, counsel was appointed and the pro se motion amended. After a hearing, the motion was denied.

Williams appealed the denial of his motion as well as his conviction to the Missouri Court of Appeals. Among his arguments were several ineffective assistance claims, including the one he now brings before this court. Specifically, Williams questioned whether his lawyer was constitutionally deficient by failing to call witnesses he suggested would be called in his opening statement. The Missouri Court of Appeals consolidated the appeals, rejected all of Williams's arguments, and affirmed both the denial of post-conviction relief and the conviction.

In doing so, the Missouri Court of Appeals first correctly noted Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) provided the governing legal principle. State v. Williams, 973 S.W.2d 529, No. 69294 & No. 72624, slip op. at 9 (Mo.Ct.App. filed July 28, 1998) (unpublished memorandum opinion). It then held the Strickland standard was not satisfied by Williams. Id. at 14. The court observed defense counsel testified he made a decision not to call Eric Palmer and Kevin Mongrum because they were "hard-looking," "street tough" and one of them had admitted to being in a gang with Williams. Id. at 10. Also, the court reasoned:

In the discussion of defendant's second point, we pointed out that in order to prevail on his claim of ineffective assistance of counsel, defendant must overcome the presumption that counsel's challenged acts or omission were sound trial strategy. State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993). The choice of witnesses and defense tactics are ordinarily matters of trial strategy and will not support a claim of ineffective assistance of counsel. State v. Henderson, 826 S.W.2d 371, 378 (Mo. App. E.D.1992). In this case at bar, the majority of the witnesses that trial counsel mentioned in his opening statement were called by the state. At the evidentiary hearing, trial counsel testified that he thought he beat the state's case through his cross-examination of the state's witnesses. Trial counsel also testified that at the hearing he had voir dired the jury about the fact that defendant did not have to call witnesses. Trial counsel testified that he felt it was better to make an opening statement which would allow the jury to hear that there were "witnesses out there" that could support their story, instead of standing mute after the state's opening statement. We find that trial counsel's decision not to call witnesses was part of his trial strategy. The motion court did not err in denying defendant's claim of ineffective assistance of counsel.

Id. at 13-14.

After losing his appeal in state court, Williams sought habeas relief pursuant to § 2254 in federal district court. The district court determined the decision of the Missouri Court of Appeals was not contrary to established federal law. It, therefore, denied Williams's petition for a writ of habeas corpus, but it granted a certificate of appealability. Williams now appeals.

II

Williams contends the Missouri Court of Appeals's rejection of his ineffective assistance claim was an unreasonable application of clearly established federal law, and the district court, therefore, erred in denying his habeas petition. We disagree.

The determination as to whether counsel was constitutionally deficient is a mixed question of law and fact. Flieger v. Delo, 16 F.3d 878, 886 (8th Cir.1994). Accordingly, the district court's resolution of claims of ineffective assistance of counsel based on an undisputed factual record, of the sort we now have before us, is subjected to de novo review. Miller v. Dormire, 310 F.3d 600, 602 (8th Cir.2002) (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052).

If a claim has been adjudicated on the merits in state court, an application for writ of habeas corpus may be granted where the state court adjudication "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). An "unreasonable application" of federal law occurs when a "state court correctly identifies the governing legal principle from [the decisions of the Supreme Court] but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (discussing Williams v. Taylor, 529 U.S. 362, 403-404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see Sexton v. Kemna, 278 F.3d 808, 811 (8th Cir.2002) (analyzing Williams). The focus of the inquiry is "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694, 122 S.Ct. 1843.

The district court held Strickland was reasonably applied by the Missouri Court of Appeals. The issue before this court, therefore, is whether the district court reached the correct legal conclusion. In other words, did the Missouri Court apply Strickland in an "objectively unreasonable" manner.

It bears repeating an "objectively unreasonable" manner is different from an incorrect one. Williams, 529 U.S. at 409-410, 411, 120 S.Ct. 1495 (explaining a federal habeas court may not issue a writ under the unreasonable application clause "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly"); Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir.2003); Hoon v. Iowa, 313 F.3d 1058, 1061(8th Cir.2002). Therefore, "this court, just like the district court, may not grant a writ of habeas corpus unless the relevant state court decision is both wrong and unreasonable." Colvin, 324 F.3d at 587.

III

Strickland established the principle that in order to prevail on an ineffective assistance of counsel claim, a petitioner must "show that counsel's performance was deficient... [and] that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Owens v. Dormire, 198 F.3d 679, 681 (8th Cir.1999) (discussing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). "It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams, 529 U.S. at 391, 120 S.Ct. 1495. The "performance" prong of the two-part Strickland test requires the petitioner to show "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The "prejudice" prong of the Strickland analysis requires a showing that "the decision reached would reasonably likely have been different absent the errors." Id. at 696, 104 S.Ct. 2052.

The Missouri Court of Appeals stated, "trial counsel's decision not to call witnesses was part of his trial strategy," and, impliedly, concluded this trial strategy did not fall below the "objective standard of reasonableness" required of counsel. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To determine if this conclusion amounts to an unreasonable application of Strickland's performance prong, we must consider if Strickland and its progeny mean: when a counselor suggests to a jury certain witnesses will be called, those witnesses must be called.

As a preliminary matter, Williams directs our attention to Blankenship v. State, 23 S.W.3d 848 (Mo.Ct.App.2000). In Blankenship, a defense counsel (whose behavior at trial was described as "fumbling, stumbling and bumbling" by the trial judge) was deemed ineffective because in his opening statement he promised to present an expert witness whom he had not yet interviewed, and upon doing so decided not to call. 23 S.W.3d at 850. The Missouri Court of Appeals held Blankenship's defense counsel was ineffective because, due to his failure to investigate, he "really had no idea what [the expert witness's] testimony would be, prior to...