Wilson v. Kemna, 93-1228

• Decision Date: 04 January 1994
• Docket Number: No. 93-1228,93-1228
• Parties: Johnny E. WILSON, Appellant, v. Mike KEMNA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 145

12 F.3d 145

Johnny E. WILSON, Appellant, v. Mike KEMNA, Appellee.

No. 93-1228.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 10, 1993.

Decided Jan. 4, 1994.

Dennis James Campbell Owens, Kansas City, MO, argued, for appellant.

Stacy Louise Anderson, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon and Ronald L. Jurgeson, Kansas City, MO, on the brief), for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

HENLEY, Senior Circuit Judge.

Johnny E. Wilson appeals the district court's ¹ judgment denying his petition for writ of habeas corpus. We affirm.

Wilson was convicted of first degree assault for the stabbing of Joe Dobda. The stabbing occurred late one night at the residence of Carolyn Churchill. ² Though several people were outside the house during the incident, only Wilson, Dobda, and Churchill witnessed any of the relevant events leading up to the stabbing. Wilson and Dobda both testified at trial, presenting two very different versions of what happened. Wilson claimed that he acted in self-defense while Dobda stated that Wilson was the aggressor. Churchill did not testify.

Wilson filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. He claimed his trial counsel was constitutionally ineffective for failing to call Churchill. The judge dismissed the motion as untimely, and the Missouri Court of Appeals affirmed the dismissal. State v. Wilson, 795 S.W.2d 590 (Mo.Ct.App.1990). No evidentiary hearing was held.

Wilson subsequently made the same ineffective assistance claim in his habeas petition. The district court found that though the claim had been procedurally defaulted, there was cause for the default because Wilson's failure to timely file his Rule 29.15 motion was due to prison officials' repeated refusals to provide the services of a notary public. Nevertheless, the court held that Wilson had not satisfied the prejudice element of the cause and prejudice test because his counsel had not been constitutionally ineffective. The court denied Wilson's petition without a hearing.

Wilson's principal argument on appeal is that the district court was required to conduct an evidentiary hearing, for the state courts never did so, and relevant facts remained in dispute. ³ In particular, Wilson notes that his attorney stated in a post-trial hearing that he talked to Churchill about potential testimony but determined she would not be a helpful witness. In an affidavit submitted to the district court, Churchill claims the attorney never contacted her.

Generally, an evidentiary hearing is required in a habeas proceeding if petitioner " 'alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing.' " Houston v. Lockhart, 982 F.2d 1246, 1250 (8th Cir.1993) (quoting Spillers v. Lockhart, 802 F.2d 1007, 1009 (8th Cir.1986)). However, the petitioner is not entitled to a hearing where the record clearly indicates that his claims are either barred from review or without merit. Reynolds v. Caspari, 974 F.2d 946, 948 (8th Cir.1992); Wiles v. Jones, 960 F.2d 751, 754 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 423, 121 L.Ed.2d 345 (1992).

We agree with the district court that Wilson's claim is procedurally barred. Though he may have established cause for his default, he has not shown sufficient prejudice resulting from the alleged constitutional error. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (To establish the prejudice prong of the cause and prejudice test, petitioner must show that errors infected "his entire trial with error of constitutional dimensions.").

Alternatively, Wilson's ineffective assistance claim is without merit. Upon review of Churchill's affidavit, ⁴ we conclude that her testimony would not have affected the jury's verdict. Though certain statements are consistent with Wilson's story, the affidavit is largely consistent with Dobda's testimony, ⁵ and nothing in the affidavit supports a self-defense claim. Moreover, Churchill's credibility at trial would have been questionable considering she was married to the defendant at the time. Consequently, Wilson cannot establish prejudice resulting from his attorney's allegedly deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984) (To establish a claim of ineffective assistance, a defendant must show not only (1) that counsel's performance was deficient but also (2) "that there is a reasonable...