Lowell Cochrell v. James Purkett ( 1997 )

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No. 96-2111
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Lowell Cochrell, *
*
Petitioner-Appellant, *
*
v. * Appeal from the United States
* District Court for the Eastern
James Purkett, * District of Missouri.
*
Respondent-Appellee. *
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Submitted: January 17, 1997
Filed: May 7, 1997
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Before RICHARD S. ARNOLD, Chief Judge, ROSS and BEAM, Circuit Judges.
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ROSS, Circuit Judge.
Appellant Lowell Cochrell seeks reversal of the district court's1
denial of his habeas corpus petition on the ground that his claim was
barred as successive and that he failed to demonstrate cause to excuse the
successive claim. We affirm.
I.
Appellant was convicted of rape and was sentenced to 35 years
imprisonment as a second-time offender. The Missouri Court of Appeals
affirmed appellant's conviction and sentence. State v.
1
The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
Cochrell, 492 S.W.2d 22 (Mo. Ct. App. 1973). On May 13, 1973, appellant
filed his first federal habeas corpus petition, alleging that the
identification by the victim was the result of suggestive procedures and
that an improper jury instruction was given. In an unpublished opinion the
federal district court denied the petition on the merits.
Appellant then returned to state court and filed a motion for state
post-conviction relief under Missouri Supreme Court Rule 27.26, on August
9, 1974. Following an evidentiary hearing, the state court denied the
post-conviction motion. Appellant appealed the denial of the Rule 27.26
motion, raising the single claim for relief that trial counsel had been
ineffective for failing to interview Patrolman Gavin, the arresting
officer, prior to trial. Appellant argued that because trial counsel was
inadequately prepared for cross-examination of the officer's testimony,
counsel inadvertently opened the door to damaging testimony concerning
appellant's statements about a prior conviction for rape. On April 13,
1976, the Missouri Court of Appeals affirmed the denial of the Rule 27.26
motion, finding that counsel's decision not to interview Gavin was a matter
of trial strategy. Cochrell v. State, 537 S.W.2d 584, 585 (Mo. Ct. App.
1976).
Thereafter, appellant filed a second federal habeas corpus petition
on June 1, 1976, alleging that trial counsel was ineffective for failing
to interview Patrolman Gavin prior to trial. The district court denied the
petition on the merits, concluding that trial counsel was not ineffective.
Cochrell v. Wyrick, 420 F. Supp. 658, 661 (E.D. Mo. 1976). Appellant did
not appeal this decision.
On August 12, 1991, appellant filed his third federal habeas
petition, again raising the claim that counsel was ineffective for failing
to interview Patrolman Gavin prior to trial. The district court denied the
habeas petition on the ground that the claim was
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barred as successive because it had been addressed pursuant to appellant's
previous petition.
On appeal, appellant now contends that the claim of ineffective
assistance in his second habeas petition was examined under the "farce and
mockery" standard used prior to the standard adopted by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). As such,
appellant argues that the district court erroneously ruled his ineffective
assistance claim was successive because the claim was never reviewed under
the prevailing legal standard announced in Strickland. He thereby urges
that he has demonstrated good cause to excuse the successive nature of his
claim.
II.
After a state prisoner's first federal habeas petition has been
decided, federal courts generally cannot consider the merits of claims
raised in the prisoner's later federal habeas petitions. Instead, federal
courts must usually dismiss claims raised in subsequent petitions as
successive or abusive. A successive claim raises a ground heard and
decided on the merits in a previous petition, whereas an abusive petition
raises new claims that were available but were not relied upon in a prior
petition. Schlup v. Delo, 115 S. Ct. 851, 863 n.34 (1995). In order to
have the merits of a successive or abusive claim reviewed by a federal
court, the petitioner must demonstrate either cause and prejudice or actual
innocence. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992).
Appellant's claim of ineffective assistance was rejected on the
merits in appellant's second habeas petition. At that time, the Eighth
Circuit reviewed ineffective assistance claims under the "farce and
mockery" standard. See Cardarella v. United States, 375 F.2d 222, 230 (8th
Cir. 1967). Before relief could be granted under that standard, the court
had to find that counsel's acts or
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omissions made the proceedings a farce and a mockery of justice, shocking
to the conscience of the court. Id.
Following the denial of his second habeas petition, the Supreme Court
handed down Strickland v. Washington, establishing an objective
reasonableness performance standard for ineffective assistance of counsel
claims. While appellant is correct that the performance standard changed
following the denial of his habeas petition, that change cannot constitute
cause in the present action because appellant's claim was reviewed under
essentially the same test which was later announced in Strickland.
In rejecting appellant's second habeas petition in 1976, the district
court observed that other circuits "word the test for determining the
constitutional adequacy of counsel in terms of whether the defendant
received reasonably competent assistance of counsel. In our judgment, the
professional conduct of petitioner's counsel was fully adequate under
either test." Cochrell v. Wyrick, 420 F. Supp. at 661. The district court
in the present case concluded that because the previous court reviewed
counsel's performance under essentially the same standard adopted in
Strickland and found it adequate, there is no need to review the merits of
the claim again. We agree with the district court. This conclusion is
buttressed by language from Strickland:
To the extent that this [new standard] has already been the
guiding inquiry in the lower courts, the standards articulated
today do not require reconsideration of ineffectiveness claims
rejected under different standards. In particular, the minor
differences in the lower courts' precise formulations of the
performance standard are insignificant: the different
formulations are mere variations of the overarching
reasonableness standard.
Strickland, 466 U.S. at 696-97 (citation omitted). Because appellant's
claim was reviewed under essentially the same test
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which was later adopted in Strickland, no good cause exists for another
review of the claim. The district court did not err in concluding that the
claim is barred as successive.2
III.
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
We note that, as an alternative holding, the district court
below analyzed appellant's claim of ineffective assistance of
counsel under the Strickland standard and found it to be without
merit. We agree with the district court that appellant has
failed to establish that counsel performed deficiently by
choosing not to interview the arresting officer prior to trial.
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