Leamon White, Petitioner-Appellee,
Don Roper, Respondent-Appellant.,
416 F.3d 728
September 9, 2005
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),
522 U.S. 948 , 118 S.Ct. 365, 139 L.Ed.2d 284
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.
531 U.S. 917 , 121 S.Ct. 275, 148 L.Ed.2d 200
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),
538 U.S. 981 , 123 S.Ct. 1785, 155 L.Ed.2d 671
On remand, the district court
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.
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
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.
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
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.), and cases cited, cert. denied,
525 U.S. 846 , 119 S.Ct. 115, 142 L.Ed.2d 92
(1998). The principle is certainly sound, but
we disagree that it applies in this case. The
strength of the presumption turns on the adequacy of
strategic choices made after
thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and
strategic choices made after less than complete
investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation.
Strickland, 466 U.S. at 690-91,
104 S.Ct. 2052. Here, the record establishes that
counsel's investigation was too superficial to
reveal the comparative strength of Raymond's and
Deonta's support for the defense of mistaken
identification, and to discover the powerful support
that Dorothy Merrell could provide for the defense
that Constantine was the third assailant.
In these circumstances, the
district court properly found it inexplicable that
only the boy with the weaker supporting testimony
was called, rather than both, and properly found no
apparent justification for failing to call Merrell.
In other words, the presumption of sound trial
strategy founders in this case on the rocks of
ignorance, as in Wiggins v. Smith, 539 U.S. 510,
527-28, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
The State further contends that
the district court misapplied Strickland's prejudice
standard in concluding: "Ultimately, the Court is
not confident in the jury's verdict and believes
there is a reasonable possibility that the outcome
would have been different had Deonta and Dorothy
testified." White v. Roper, slip. op. at 16 (emphasis
The State properly notes that the
Strickland prejudice standard requires proof of a
reasonable probability and argues that the
difference in terminology is significant enough to
constitute reversible error.
Initially, we note that the
district court, just three pages earlier in its 46-page
opinion, stated the correct "reasonable probability"
standard three times and quoted the Supreme Court's
summary of that standard, "A reasonable probability
is a probability sufficient to undermine confidence
in the outcome." Wiggins, 539 U.S. at 534, 123 S.Ct.
2527, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
The district court recognized
Strickland as the governing authority and framed its
analysis accordingly. The court focused on the
ultimate Strickland prejudice inquiry when it
concluded, taking into account the omitted testimony
of Deonta Kinney and Dorothy Merrell, that it was "not
confident in the jury's verdict." Thus, despite one
mistake in the court's opinion, we are satisfied
that it knew and correctly applied the familiar
Strickland prejudice standard.
In resolving a similar issue in
Woodford v. Visciotti, 537 U.S. 19, 23-24, 123 S.Ct.
357, 154 L.Ed.2d 279 (2002), the Supreme Court
The California Supreme Court's
opinion painstakingly describes the Strickland
standard. Its occasional shorthand reference to that
standard by use of the term "probable" without the
modifier may perhaps be imprecise, but if so it can
no more be considered a repudiation of the standard
than can this Court's own occasional indulgence in
the same imprecision.
Although the district court in
this case used the wrong word, rather than an
imprecise shorthand, like the Supreme Court in
Woodford we conclude that the district court's
single mistake in articulating the Strickland
prejudice standard was not a repudiation of that
standard. Therefore, on this record, we affirm the
court's conclusion that White is entitled to guilt
phase habeas relief under Strickland because he
proved that he was prejudiced by counsel's deficient
The judgment of the district
court is affirmed.