Victor Carter v. Frank X. Hopkins ( 1996 )

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No. 95-2782
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Victor Carter, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Frank X. Hopkins, *
*
Appellee. *
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Submitted: March 13, 1996
Filed: August 8, 1996
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Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
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BEAM, Circuit Judge.
Victor Carter filed this petition for habeas corpus relief under 28
U.S.C. § 2254. He asserts that he received ineffective assistance of
counsel and was denied his Sixth Amendment right to a fair trial. The
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district court denied habeas corpus relief. We affirm.
I. BACKGROUND
On the morning of October 9, 1985, Jeffrey Peterson, a white male,
and his cousin John Flynn, went looking for Janelle Anzalone in the
vicinity of 19th Street and Lathrop Avenue in Omaha, Nebraska. Anzalone
allegedly owed Gerald Kincaid money which Peterson was attempting to
collect. While in the neighborhood,
1
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, adopting the report and
recommendation of United States Magistrate Judge David L. Piester.
Peterson and his cousin were involved in a confrontation with two black
individuals. Later that same morning, Peterson was shot and killed outside
Kincaid's home.
After the confrontation but before the shooting, two black
individuals, later identified as Victor Carter and his brother, George,
drove through Kincaid's neighborhood looking for Kincaid. They pulled up
alongside a car containing Peggy Hatfield and Scott Reynolds. Carter
threatened Hatfield with a gun as a warning to Kincaid to stay out of
Carter's neighborhood. He told Hatfield to tell Kincaid that his "crib
ain't nowhere to be messin' around, and my people ain't nobody to be
fuckin' with." Appendix at 220. Hatfield and Reynolds then drove to a
phone booth ten to fifteen blocks away to call Kincaid and warn him that
the Carter brothers were looking for him. By the time Hatfield and
Reynolds reached Kincaid by phone, however, Peterson had been shot.
During this time, the Carter brothers had apparently been circling
Kincaid's home awaiting further confrontation. In an attempt to flee to
safety, Peterson and Flynn started across the street to a neighbor's home.
As they did so, the Carter brothers sped by in their car, slammed on the
brakes and jumped out. After jumping from the car, Victor Carter shot
Jeffrey Peterson.
During the investigation into Peterson's murder, several witnesses
surfaced. To aid in the suspects' identification, a lineup was arranged
in which Carter and his two brothers participated. Hatfield and Reynolds
identified Carter and his brother George as Peterson's assailants.
Although they had not witnessed the murder, Hatfield and Reynolds had seen
the Carter brothers just before the murder and identified their car as the
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same car later connected to the Peterson shooting. In addition, Kincaid
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testified as an eyewitness to the murder.
The Carter brothers were arrested and taken to the police station for
questioning. They were charged with first degree murder, use of a firearm
in the commission of a felony, and being habitual criminals. Carter claims
that he repeatedly requested, but was denied, the assistance of counsel
during his post-arrest questioning at the police station.
During jury selection, Carter's counsel did not object to the
prosecution's striking of potential black jurors, despite Carter's claims
that he expressed concern over the elimination of blacks from his jury.
Carter was tried by an all-white jury. On April 10, 1986, Carter was
convicted on all charges.
Carter was sentenced to life in prison on the murder count and ten
years on the firearm count. His conviction and sentence were affirmed on
direct appeal by the Nebraska Supreme Court. State v. Carter, 413 N.W.2d
901 (Neb. 1987). Carter's motion for state postconviction relief was
denied and that denial was affirmed on appeal by the Nebraska Supreme
Court. Carter then filed a petition for a writ of habeas corpus in federal
court which was denied by the district court. Carter appeals that denial
to this court.
2
Kincaid's testimony has been the subject of much debate in
this case. Originally, Kincaid told police he had not seen the
actual shooting. Prior to trial, however, Kincaid stated that he
had seen the shooting and identified Victor and George Carter as
the shooters. Kincaid testified to the same at trial. In
postconviction proceedings, Kincaid claimed he was unable to
identify the Carter brothers as the shooters. Later, Kincaid
returned to his earlier testimony and claimed that his recantation
was the product of threats from a member of the Carter family at
the correctional center. Those threats were documented in the
correctional center's disciplinary proceedings. Both the jury and
the district court found Kincaid's trial testimony to be the most
credible version of events.
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II. DISCUSSION
Carter asserts that his counsel was ineffective for failing to object
to: (1) the prosecution's allegedly discriminatory use of peremptory
challenges; (2) the in-court identifications of Carter based on an
allegedly impermissibly suggestive out of court showup; and (3) the alleged
repeated denial of Carter's requests for counsel following arrest. He also
claims he was denied his Sixth Amendment right to a fair trial because of
his counsel's failure to request a continuance following the discovery of
eyewitness testimony.
To succeed on an ineffective assistance of counsel claim, Carter must
show that his counsel's performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). Deficient performance will only be found where counsel's
performance fell below an objective standard of reasonableness. Randolph
v. Delo, 952 F.2d 243, 246 (8th Cir. 1991), cert. denied, 504 U.S. 920
(1992). We evaluate counsel's performance not with the clarity of
hindsight, but in light of the facts and circumstances at the time of
trial. Id. In examining whether prejudice has resulted from counsel's
deficient performance, the ultimate focus is on "whether counsel's
deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair." Lockhart v. Fretwell, 113 S. Ct. 838,
844 (1993).
The district court's determination on an ineffective assistance of
counsel claim, both as to the deficient performance and prejudice
components, is a mixed question of law and fact. Sherron v. Norris, 69
F.3d 285, 290 (8th Cir. 1995). We review the district court's factual
determinations for clear error but its legal conclusions de novo. Id.;
Wilson v. Armontrout, 962 F.2d 817, 819 (8th Cir.), cert. denied, 506 U.S.
942 (1992).
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A. Batson Issue
Carter alleges that his trial counsel was ineffective for failing to
object to the prosecution's allegedly discriminatory use of peremptory
challenges. Carter claims that he had specific discussions with his lawyer
regarding the need for objections to juror strikes and yet his attorney
failed to make those objections. In Batson v. Kentucky, 476 U.S. 79
(1986), the United States Supreme Court held that the race-based exclusion
of potential jurors through the use of peremptory challenges violates the
Equal Protection Clause of the United States Constitution. In a subsequent
case, the Court held that Batson applies "retroactively to all cases, state
or federal, pending on direct review or not yet final" at the time of the
Batson decision. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Because
Carter had not yet been sentenced at the time of the Batson decision,
Batson applies to this case.
Applying the deferential Strickland standard, we conclude that the
district court correctly determined that Carter's counsel was not
ineffective for failing to raise the Batson issue during jury selection.
Although the theory behind Batson was available to counsel at the time jury
selection occurred here, Batson itself had not yet been decided. We have
stated previously that counsel need not "anticipate a change in existing
law" to render constitutionally effective assistance of counsel. Ruff v.
Armontrout, 77 F.3d 265, 268 (8th Cir. 1996). Therefore, counsel's failure
to make the Batson objections did not fall below the deferential standard
of reasonableness established in Strickland. Nor was counsel's performance
deficient for failing to raise the Batson issue on direct appeal. See
Randolph, 952 F.2d at 246.
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Counsel need not raise "every single conceivable argument" to be
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effective. Ruff, 77 F.3d at 268.
Carter cites Government of the Virgin Islands v. Forte, 865 F.2d 59
(3d Cir. 1989), in support of the proposition that his counsel was
ineffective in failing to make a Batson objection despite his contrary
requests. In that case, a consulting attorney informed the trial attorney
prior to trial that Batson was pending before the United States Supreme
Court. The consulting attorney also urged the trial attorney to preserve
possible Batson objections in the event that Batson proved helpful in the
future. In addition, Forte repeatedly discussed the matter with his trial
attorney and requested him to object to the jury's composition. Despite
this, Forte's trial counsel did not object to the prosecution's use of
peremptory challenges. On appeal, the court held that under those
"extraordinary" facts, trial counsel's failure to raise the Batson
objection was unreasonable. Forte, 865 F.2d at 63. Such extraordinary
facts do not exist in this case.
Carter claims that his alleged repeated expressions of concern about
facing an all-white jury position his case closer to Forte than to our
cases holding that failure to raise a Batson objection, in situations where
Batson had not yet been decided, was not ineffective assistance of counsel.
See, e.g., Ruff, 77 F.3d at 268; Randolph, 952 F.2d at 246. We disagree.
Initially, we note that even if Carter's allegations are true, trial
counsel in this case was only presented with a client's generalized concern
over the makeup of his jury. There was no involvement by an outside
attorney informing trial counsel of the need to preserve an objection or
of the fact that a case which could be dispositive of the jury selection
issue was currently pending in front of the United States Supreme Court.
Nor was there a specific legal
3
In so holding, we note our reluctance to second-guess trial
counsel's actions where, as here, no record of voir dire exists.
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constitutional basis offered for the objection as there was in Forte. As
the court in Forte took care to point out:
[W]e do not imply that any time a trial attorney does not carry
out her client's requests she may be held to be ineffective.
We are well aware that sometimes defendants make demands on
their attorneys to advance insubstantial or even scandalous
contentions and that even advancing a contention not of that
character might not be sound trial strategy.
Forte, 865 F.2d at 63. Consequently, the Forte case is distinguishable
from the facts at hand. Applying the deferential Strickland standard,
therefore, we find that the district court correctly determined that
Carter's counsel was not ineffective for failing to raise the Batson issue
during jury selection.
B. Identification
Carter next claims that his counsel was ineffective for failing to
object to the in-court identifications of him even though they were based
on an allegedly unconstitutionally suggestive pretrial showup. In this
case, the so-called showup occurred at the police station and included
Carter and his two brothers. We assume, without deciding, that Carter was
subjected to an impermissibly suggestive showup. See Robinson v. Clarke,
939 F.2d 573, 576 (8th Cir. 1991) (a showup is generally limited to those
instances in which only one suspect is set up for viewing by the
eyewitness). In order to prevail on this claim, however, Carter must show
not only that the showup was unduly suggestive, but also that it was so
impermissibly suggestive that there was a substantial likelihood of
irreparable misidentification. Trevino v. Dahm, 2 F.3d 829, 833 (8th Cir.
1993); U.S. v. Ramsey, 999 F.2d 348, 349 (8th Cir. 1993). "The central
question is whether, under the totality of the circumstances, the
identification was reliable despite any suggestive or inappropriate
pretrial identification techniques." Trevino, 2 F.3d at 833.
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After assuming the showup was impermissibly suggestive, the district
court carefully analyzed the applicable factors to determine whether the
in-court identifications were independently reliable. See Neil v. Biggers,
4
409 U.S. 188, 199-200 (1972). The district court determined the
identifications were independently reliable and that no substantial
likelihood of irreparable misidentification existed. We agree with that
conclusion and find it amply supported by the record. Because the
identifications were independently reliable and thus, admissible, counsel's
failure to object to their admission was not deficient performance.
Indeed, it was objectively reasonable not to make the meritless objection.
Consequently, Carter failed to show that his counsel was ineffective for
failing to object to the in-court identifications.
C. Denial of Counsel
Carter next argues that his counsel was ineffective for failing to
object to the alleged repeated denial of Carter's requests for counsel
following his arrest. Carter asserts that one week elapsed between the
time of the crime and the time he was provided with counsel. Before Carter
may ask a federal court to review this federal habeas claim, he must first
present the substance of the claim to the state courts. Jones v. Jerrison,
20 F.3d 849, 854 (8th Cir. 1994). Carter failed to present this claim to
the state courts and has further failed to show cause and prejudice to
excuse the default. Therefore, this claim was correctly denied as
procedurally defaulted. See id. at 855.
4
Those factors include: (1) the witness's opportunity to view
petitioner at the time of the crime; (2) the witness's degree of
attention to the suspect; (3) the accuracy of the witness's prior
descriptions; (4) the witness's level of certainty; and (5) the
length of time between the crime and the identification. Id.
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D. Right to a Fair Trial
Carter claims he was denied his Sixth Amendment right to a fair trial
in that his counsel failed to move for a continuance after notification
that the state would present Gerald Kincaid's eyewitness testimony of the
murder. If this claim were treated as a Sixth Amendment claim, we would
find that Carter waived the claim by failing to raise it either at trial
or on direct appeal. See, e.g., Wright v. Nix, 928 F.2d 270, 272 (8th
Cir.), cert. denied, 502 U.S. 838 (1991). However, this claim is simply
one more allegation of ineffective assistance of counsel and will be
treated as such.
We note that Carter's counsel was given Kincaid's statement two weeks
before trial. Carter seems to think that a longer preparation time would
have uncovered discrepancies in Kincaid's testimony. It is important to
note, however, that counsel had the opportunity to, and in fact did, cross-
examine Kincaid at trial. Carter does not allege that the outcome of his
trial would have been different had he had more time to prepare for the
eyewitness testimony. Therefore, Carter has failed to show prejudice
within the meaning of Strickland, i.e., that the result of his trial was
unreliable because of his counsel's failure to move for a continuance.
Strickland, 466 U.S. at 687. We have considered the remainder of Carter's
arguments and find them to be without merit.
III. CONCLUSION
Because we find no error in the district court's denial of Carter's
postconviction relief, we affirm.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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