James Koste v. Dave Dormire ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3791
___________
James Koste, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri
Dave Dormire, *
*
Appellee. *
___________
Submitted: March 24, 2003
Filed: October 7, 2003
___________
Before McMILLIAN, RICHARD S. ARNOLD and HALL,1 Circuit Judges.
___________
McMILLIAN, Circuit Judge.
This case is before us on remand from the United States Supreme Court. James
Koste filed the present action in the United States District Court2 for the Eastern
District of Missouri seeking a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The district court denied Koste’s petition, see Koste v. Dormire,
1
The Honorable Cynthia H. Hall, Circuit Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
2
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
No. 4:98CV1709 (E.D. Mo. Sept. 25, 2000) (hereinafter “District Court Order”), and
certified two claims for our review: (1) a claim of ineffective assistance of counsel
based upon Koste’s assertion that his trial counsel was acting under a conflict of
interest during his change-of-plea hearing and (2) a claim of ineffective assistance of
counsel based upon Koste’s assertion that his trial counsel should have pursued a
mental evaluation before he pled guilty, see id. (Sept. 25, 2000) (Certificate of
Appealability). Upon review, we concluded that Koste was entitled to relief on the
first of these claims, declined to reach the second claim, and remanded the case to the
district court with instructions to issue the writ pending an opportunity for the state
to retry Koste. Id., 260 F.3d 872 (8th Cir. 2001), cert. granted and judgment vacated,
535 U.S. 967 (2002). The state filed a petition for a writ of certiorari in the United
States Supreme Court. On April 1, 2002, the Supreme Court granted certiorari,
vacated our judgment, and remanded the case to us for further consideration in light
of Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237 (2002) (Mickens), filed five days
earlier. We now affirm the judgment of the district court.
I.
Jurisdiction was proper in the district court pursuant to 28 U.S.C. § 2254.
Jurisdiction is proper in this court pursuant to 28 U.S.C. §§ 2106, 2253.
II.
The following summary of the background is based upon the record on appeal
(hereinafter “Record”). On May 24, 1994, Koste was indicted under Missouri state
law on five counts of sodomy with a child under the age of fourteen. Each count
involved the same child and referred to the same period of time in which the offense
was alleged to have occurred. An assistant public defender, Robert Lundt, entered
an appearance on Koste’s behalf. Lundt had represented Koste in a prior, separate
state court criminal case.
-2-
On October 24, 1994, Koste filed a pro se “Motion to Dismiss Counsel”
alleging that he was receiving ineffective assistance from Lundt. See Record at 147-
50. Koste also filed a pro se “Motion for Pretrial Mental Exam” asking the state trial
court to “order a mental evaluation for a determination on a multiple personality
disorder and any other psychological defect as a result of abuse or trauma.” Id. at
151.3
Lundt continued to represent Koste for approximately five months, during
which Lundt filed motions to suppress and a witness endorsement on Koste’s behalf.
Meanwhile, Koste’s trial was continued on several occasions at the requests of both
defense counsel and the prosecutor.
On March 27, 1995, the state trial court granted Lundt permission to withdraw
as Koste’s attorney, and Terri Johnson, another assistant public defender, entered an
appearance on behalf of Koste. Lundt and Johnson worked together in the same
public defender’s office. Koste’s trial was postponed several more times, with the
last continuance setting a trial date of November 13, 1995.
On November 13, 1995, a jury was selected for Koste’s trial, and court was
adjourned until the next morning. On the morning of November 14, 1995, Koste filed
a pro se “Motion of Conflict of Interest.” See id. at 175-76. In this pro se motion,
Koste alleged that he was being denied effective assistance of counsel because
“[a] conflict has been created between movant and his attorney, due to a motion to
vacate, set aside or correct judgment and sentence in Cause Number 921-1150 against
attorney’s said office.” Id. at 175. Koste was referring to a claim of ineffective
assistance of counsel which he had asserted in a motion for post-conviction relief
challenging his conviction in the prior case for which Lundt had been his attorney.
3
Spelling errors in Koste’s pro se materials have been corrected herein.
-3-
Also on the morning of November 14, 1995, Johnson notified the state trial
court that Koste wished to change his plea of not guilty to a plea of guilty pursuant
to a plea agreement. The state trial court thereupon conducted a change-of-plea
hearing at which Koste pled guilty to each of the five counts in the indictment.
During the hearing, the state trial court questioned Koste regarding the voluntariness
of his guilty plea and found that Koste had entered his guilty plea freely and
voluntarily. See id. at 45 (Transcript of Oral Proceedings (“Transcript”) at 4). The
prosecutor summarized the facts which would have been proven if the matter had
proceeded to trial, and Koste admitted that he committed the acts alleged. See id. at
46-48 (Transcript at 5-7). Consistent with the plea agreement, the state trial court
sentenced Koste to five concurrent 30-year terms of imprisonment without parole,
each to run concurrently with a life sentence that he was already serving on his prior
conviction. Id. at 51-52 (Transcript at 10-11) and 43 (Transcript at 2).
The following exchanges then took place between the state trial court and
Koste and the state trial court and Johnson:
THE COURT: Your attorney in this matter is Ms. Terri Johnson.
Did your attorney represent you throughout this proceeding?
[KOSTE]: She did represent me, Your Honor.
THE COURT: Have you had sufficient time to discuss your case
with your attorney prior to pleading guilty?
[KOSTE]: I don’t feel so, Your Honor.
THE COURT: Okay, the Court herein finds that – I stayed here
last night myself to afford you an opportunity to spend two or three
hours with your lawyer; that I had brought you to Court early so you
could be with your lawyer.
-4-
Your lawyer indicated to me in your presence that she visited you
at jail once. You were returned from the penitentiary, is that right?
[KOSTE]: One time for five minutes, Your Honor.
THE COURT: Okay. The Court finds that you have had
sufficient time to discuss your case with your lawyer and I was here this
morning at 9 o’clock.
Did your attorney do everything you asked her to do?
[KOSTE]: No.
THE COURT: Okay. Did you give her any names or addresses
of any witnesses?
[KOSTE]: Yes, sir.
THE COURT: Ms. Johnson, I saw your investigator talking to
you. Did you order things done for this man on his behalf this morning?
MS. JOHNSON: Yes, Your Honor. But, Mr. Koste was having
a dispute as to what witnesses would be called in this case.
THE COURT: I am not going to get involved in the trial
technique strategy, all I want to know – I saw your investigator in the
courtroom and you were giving him some directions.
MS. JOHNSON: That’s correct, Your Honor.
....
THE COURT [speaking to Koste]: Anything else you want to tell
me about your lawyer before I decide whether I believe you received
effective assistance of counsel?
....
-5-
[KOSTE]: I do believe that my attorney and I are at a conflict of
interest due to my appeal on my other case as I stated in my motion, and
I refer to it.
THE COURT: Okay. The Court found that none exist. The Court
found that we selected this jury, we let you listen to the tape, the video
tape and it was not raised until this morning that I was informed that you
had a suit against them, but you had filed a [motion for post-conviction
relief], is that correct?
[KOSTE]: Yes, sir.
THE COURT: The Court is not going to try that [motion for post-
conviction relief] as being no legal suit against Ms. Johnson and the
Court herein denies that.[4]
Anything further?
MS. JOHNSON: No, Your Honor.
Id. at 53-56 (Transcript at 12-15).
After judgment was entered based upon Koste’s guilty plea, he filed a pro se
motion for post-conviction relief in state court. See id. at 68-77. He claimed, among
other things, that he was denied effective assistance of counsel because Johnson was
acting under a conflict of interest at the time he entered his guilty plea. His pro se
motion for post-conviction relief stated the following:
4
As stated above, Lundt represented Koste in a prior criminal case, which was
the basis for the referenced motion for post-conviction relief. Lundt and Johnson
worked in the same public defender’s office, and Johnson had replaced Lundt as
Koste’s counsel in the case that was at bar. These facts underlie Koste’s conflict-of-
interest claim and also explain the state trial court’s seemingly inconsistent references
to “a suit against them” and “no legal suit against Ms. Johnson.” Record at 56
(Transcript at 15).
-6-
[A] conflict did exist as counsel was also involved in cause number
921-150 whereas movant is claiming ineffective counsel. This conflict
forced movant to make statements without the advice of conflict-free
counsel. . . . This conflict did so prejudice counsel that counsel refused
to converse with movant and prepare for trial. Counsel did visit movant
one time prior to picking jury for five minutes[.] [B]y the trial court’s
refusal to relieve this counsel at movant’s request the trial court did
operate to deny movant of conflict free counsel.
Id. at 71-72.
The state trial court appointed the Special Public Defender’s Office to represent
Koste in the post-conviction relief proceedings. Koste’s new attorney filed an
amended motion for post-conviction relief which fully incorporated Koste’s pro se
motion, added some claims for relief, and requested an evidentiary hearing. See id.
at 84-93. One of the claims added in the amended motion for post-conviction relief
alleged ineffective assistance of counsel for failure to obtain a mental evaluation. Id.
at 87. In response, the state moved to dismiss Koste’s motion for post-conviction
relief for failure to state a claim upon which relief could be granted.
The state trial court denied Koste’s request for an evidentiary hearing on the
ground that he had “failed to allege grounds that would entitle him to relief if true and
that are not refuted by the record.” Koste v. State, PCR No. 3473, Div. No. 5, slip op.
at 2-3 (Mo. Cir. Ct. May 10, 1996) (Findings of Fact, Conclusions of Law, Order and
Judgment). In addressing Koste’s ineffective assistance claim based upon his trial
counsel’s failure to obtain a mental evaluation, the state trial court noted that “[t]he
record here reflects that movant was fully able to understand the proceedings, and
movant has alleged no facts which would have indicated to his attorney that his
competency was at issue.” Id., slip op. at 4. Regarding Koste’s pro se motion asking
for a court-ordered mental evaluation, the state trial court reasoned that “[t]he filing
of this motion by movant does not indicate a lack of competency, but would seem to
indicate the contrary.” Id. at 4 n.1. The state trial court denied Koste’s motion for
-7-
post-conviction relief. Id. at 6. Koste appealed, arguing in terms of whether the state
trial court should have at least held a hearing on his claims for post-conviction relief.
The Missouri Court of Appeals affirmed the denial of Koste’s motion for post-
conviction relief and set forth its reasons in an unpublished supplemental
memorandum. Koste v. State, No. 71817 (Mo. Ct. App. Jan. 13, 1998) (hereinafter
“Missouri Court of Appeals Memorandum”). Regarding Koste’s ineffective
assistance claim based upon the alleged conflict of interest, the Missouri Court of
Appeals explained:
Mr. Koste lastly argues that the trial judge erred in refusing to
conduct a hearing to determine whether he had a conflict of interest with
his trial counsel. Mr. Koste alleges that his trial counsel had a conflict
of interest based on Mr. Koste’s challenge to the effectiveness of her
counsel in another proceeding. Mr. Koste has failed to allege facts
showing how his defense was prejudiced and his plea was rendered
involuntary due to the alleged actions or inactions of his trial counsel
because of the alleged conflict of interest. Instead, Mr. Koste argues
that the alleged conflict caused his counsel to inadequately prepare for
trial and also deprived him of conflict-free advice. These conclusory
assertions do not show how the matters complained of resulted in
prejudice to his interests. The motion court did not clearly err in
denying Mr. Koste an evidentiary hearing on these allegations because
the record conclusively establishes that his plea was knowingly and
voluntarily entered and that he did not meet his initial burden of
pleading facts, not conclusions, not refuted by the record which entitle
him to relief.
Id. at 7-8.
Regarding Koste’s ineffective assistance claim based upon trial counsel’s
failure to obtain a mental evaluation, the Missouri Court of Appeals explained:
-8-
Mr. Koste also claims that the motion court erred in failing to
conduct a hearing to determine whether his trial counsel refused to
pursue a mental evaluation. Mr. Koste claims that had such an
evaluation been conducted, it would have revealed that he suffers from
multiple personality disorder. Mr. Koste filed a pro se motion for a
mental evaluation in this case on November 1, 1994.
After reviewing the files and the record, we conclude that there is
nothing to suggest that Mr. Koste’s counsel was aware or should have
been aware of any mental defect of Mr. Koste. . . . Mr. Koste never said
or did anything at his guilty plea hearing that would have caused the
judge or his trial counsel to suspect that he suffered from multiple
personality disorder or any other mental disease. Moreover, Mr. Koste
does not claim that he ever requested his trial counsel to obtain a mental
evaluation to determine whether he suffered from multiple personality
disorder. In fact, he does not even claim that his trial counsel knew or
should have known that he filed a pro se motion for a mental evaluation.
Under these circumstances, the motion court did not clearly err in
denying Mr. Koste’s request for an evidentiary hearing on this matter.
Id. at 6-7.
Koste thereafter brought the present habeas action in the United States District
Court for the Eastern District of Missouri, pursuant to 28 U.S.C. § 2254, asserting
several claims for relief including the two ineffective assistance claims discussed
herein. As to each of these two claims, the district court applied the standards in
§ 2254(d) and concluded that the decision of the Missouri Court of Appeals was not
contrary to clearly established federal law or based upon an unreasonable
determination of the facts in light of the evidence presented. See id. at 8-10.
In a panel opinion filed on August 13, 2001, we initially reversed the district
court’s decision on the reasoning that the Supreme Court’s decision in Holloway v.
Arkansas, 435 U.S. 475 (1978) (Holloway), clearly established that, where a timely
objection has been made regarding an attorney’s existing conflict of interest, the trial
court is constitutionally required to determine whether an actual conflict exists.
-9-
Because Koste had brought a timely pro se motion alleging an existing conflict of
interest resulting from his pending ineffective assistance claim, we concluded that the
state trial court was required under Holloway to inquire into the conflict issue.
Because the state trial court had taken no action to explore the matter, we held that
the Missouri Court of Appeals’ decision, upholding the denial of Koste’s motion for
post-conviction relief, was contrary to clearly established federal law as determined
by the Supreme Court. Having disposed of the case on the conflict-of-interest issue,
we did not reach Koste’s ineffective assistance claim based upon his counsel’s failure
to obtain a mental evaluation.
On April 1, 2002, the Supreme Court entered its order remanding the case to
us for further consideration in light of its recent decision in Mickens.
III.
As in the case at bar, Mickens involved a petition for a writ of habeas corpus
filed in federal court pursuant to 28 U.S.C. § 2254. The petitioner, Walter Mickens,
was seeking relief from a state capital murder conviction and death sentence
following a jury trial. Mickens asserted, among other things, that his trial attorney
had acted under a conflict of interest because, at the time of the murder, the attorney
had been representing the victim of the murder for which Mickens was tried and
convicted. A state court judge had dismissed criminal charges against the murder
victim (due to his death) and, a few days later, appointed the attorney who had been
representing the murder victim on the dismissed criminal charges to represent
Mickens on the murder charge. In Mickens’s case, the appointed attorney did not
disclose his prior representation of the murder victim, a juvenile whose files remained
confidential under state law. Mickens did not learn of his attorney’s prior
representation of the murder victim until the murder victim’s criminal files were
inadvertently produced to Mickens’s federal habeas counsel.
-10-
After the conflict issue was raised in the federal habeas action, the district court
held an evidentiary hearing to examine the underlying facts. The district court denied
Mickens relief because he had not shown prejudice. Initially a panel of the Fourth
Circuit reversed, but subsequently the Fourth Circuit, sitting en banc, affirmed the
district court’s denial of habeas relief. Mickens v. Taylor, 240 F.3d 348 (4th Cir.
2001). The Supreme Court granted certiorari.
In defining the issue before it, the Court noted that there are exceptions to the
requirement in Strickland v. Washington, 466 U.S. 668, 685-86 (1984), that prejudice
be shown in order to prevail on an ineffective assistance of counsel claim. The Court
explained:
We have spared the defendant the need of showing probable
effect upon the outcome, and have simply presumed such effect, where
assistance of counsel has been denied entirely or during a critical stage
of the proceeding. When that has occurred, the likelihood that the
verdict is unreliable is so high that a case-by-case inquiry is
unnecessary.
Mickens, 122 S. Ct. at 1240-41.
The Court continued:
We have held in several cases that “circumstances of that
magnitude” may also arise when the defendant’s attorney actively
represented conflicting interests. The nub of the question before us is
whether the principle established by these cases provides an exception
to the general rule of Strickland under the circumstances of the present
case.
Id. at 1241.
-11-
Examining its relevant precedents, the Supreme Court stated of Holloway that
it “creates an automatic reversal rule only where defense counsel is forced to
represent codefendants over his timely objection, unless the trial court has determined
that there is no conflict.” Id. at 1241-42 (citing Holloway, 435 U.S. at 488(“[W]henever a trial court improperly requires joint representation over timely
objection reversal is automatic.”)).
Addressing next its decision in Cuyler v. Sullivan, 446 U.S. 335 (1980)
(Sullivan), the Supreme Court observed that: “[n]either counsel nor anyone else
objected to the multiple representation, and counsel’s opening argument at Sullivan’s
trial suggested that the interests of the defendants were aligned.” 122 S. Ct. at 1242.
Thus, under those circumstances, the Court explained, “[w]e declined to extend
Holloway’s automatic reversal rule . . . and held that, absent objection, a defendant
must demonstrate that ‘a conflict of interest actually affected the adequacy of his
representation.’” Id. (quoting Sullivan, 446 U.S. at 348-49).
Finally, the Supreme Court addressed its decision in Wood v. Georgia, 450
U.S. 261 (1981) (Wood), the applicability of which was the source of much debate
in the case before the Court. In Wood, the Supreme Court had originally granted
certiorari to consider an equal protection issue, but then discovered that there was an
underlying due process issue because the petitioners had been represented by their
employer’s attorney, under an apparent conflict of interest. Upon discovering the
apparent conflict, the Court ordered the case returned to the state trial court “‘to
determine whether the conflict of interest that th[e] record strongly suggests actually
existed.’” Mickens, 122 S. Ct. at 1242-43 (quoting Wood, 450 U.S. at 273). The
Supreme Court in Mickens then explained Wood as follows:
Because “[o]n the record before us, we [could not] be sure
whether counsel was influenced in his basic strategic decisions by the
interests of the employer who hired him,” we remanded for the trial
-12-
court “to determine whether the conflict of interest that this record
strongly suggests actually existed.”
. . . As used in the remand instruction,[5] . . . we think “an actual
conflict of interest” meant precisely a conflict that affected counsel’s
performance –as opposed to a mere theoretical division of loyalties. It
was shorthand for the statement in Sullivan that “a defendant who shows
that a conflict of interest actually affected the adequacy of his
representation need not demonstrate prejudice in order to obtain relief.”
(emphasis added in Mickens).
Id. at 1242-43 (internal citations and footnote omitted) (quoting Wood, 450 U.S. at
273; Sullivan, 446 U.S. at 349-50).
The Supreme Court thus went on to reject Mickens’s argument that, where the
trial judge has failed to make a Sullivan-type inquiry notwithstanding an apparent
attorney conflict of interest, reversal is automatic regardless of whether the conflict
affected the attorney’s performance. Id. at 1244. The Supreme Court concluded that,
where the trial court knew or reasonably should have known about a potential
attorney conflict of interest and yet failed to make an inquiry, the petitioner, in order
to void the conviction, must show that the conflict of interest had an adverse effect
on his or her counsel’s performance. Id. at 1245.
5
The remand instruction in Wood v. Georgia, 450 U.S. 261, 273 (1981), states:
The judgment below is vacated and the case remanded with instructions
that it be returned to the State Court of Fulton County. That court
should hold a hearing to determine whether the conflict of interest that
this record strongly suggests actually existed at the time of the probation
revocation or earlier. If the court finds that an actual conflict of interest
existed at that time, and that there was no valid waiver of the right to
independent counsel, it must hold a new revocation hearing that is
untainted by a legal representative serving conflicting interests.
-13-
We now apply Mickens to the case at bar. At the outset, we review the nature
of the attorney conflict of interest alleged by Koste. As stated above, Koste initially
asserted that there was a conflict of interest in his pro se motion filed on the day of
trial, which instead became the day of his change-of-plea hearing. Johnson, herself,
never alleged a conflict of interest or suggested that her ability to represent Koste had
been compromised. Koste’s conflict of interest argument was based upon the fact
that, at the time of his change-of-plea hearing, his trial attorney, Johnson, worked in
the same office with Lundt, against whom Koste had a pending ineffective assistance
claim arising out of his prior, separate criminal case. Mickens now makes it clear
that, under these circumstances, Koste is not entitled to automatic reversal of his
conviction. 122 S. Ct. at 1241-42 (“Holloway thus creates an automatic reversal rule
only where defense counsel is forced to represent codefendants over his timely
objection, unless the trial court has determined that there is no conflict.”) (citing
Holloway, 435 U.S. at 488).
In Mickens, the Supreme Court cautioned that it was only addressing the effect
of a trial court’s failure to inquire into a potential conflict upon the Sullivan rule that
deficient performance of counsel must be shown. The Court noted that the parties
had assumed that Sullivan would apply absent an exception for failure to inquire. Id.
at 1245. The Court observed:
The case was presented and argued on the assumption that (absent
some exception for failure to inquire) Sullivan would be applicable–
requiring a showing of defective performance, but not requiring in
addition (as Strickland does in other ineffectiveness-of-counsel cases),
a showing of probable effect upon the outcome of trial. That assumption
was not unreasonable in light of the holdings of Courts of Appeals,
which have applied Sullivan “unblinkingly” to “all kinds of alleged
attorney ethical conflicts.” They have invoked the Sullivan standard not
only when (as here) there is a conflict rooted in counsel’s obligations to
former clients, but even when representation of the defendant somehow
implicates counsel’s personal or financial interests.
-14-
Id.
Referring specifically to conflict issues based upon successive representations
(as was the case in Mickens), the Court stated “[w]hether Sullivan should be extended
to such cases remains, as far as the jurisprudence of this Court is concerned, an open
question.” Id. at 1246.
Thus, following Mickens, there remains an open question in the present case
as to whether Johnson even had a sufficient conflict of interest to warrant application
of Sullivan. The transcript of the change-of-plea hearing suggests that, at that time,
the state trial court understood the nature of Koste’s conflict argument but questioned
whether a conflict of interest actually existed, where Johnson had not actually
represented Koste in the criminal case from which Koste’s pending ineffective
assistance claim had arisen. See Record at 56 (Transcript at 15) (The Court: “The
Court is not going to try [Koste’s pending motion for post-conviction relief] as being
no legal suit against Ms. Johnson and the Court herein denies that.”). For purposes
of the present analysis, however, we will assume without deciding that the state trial
court had enough information to know that Johnson was acting under a conflict of
interest sufficient to require application of Sullivan. Given that assumption, we will
further assume, consistent with Mickens, that “it was at least necessary, to void the
conviction, for [Koste] to establish that the conflict of interest adversely affected
[Johnson’s] performance.” 122 S. Ct. at 1245. As a practical matter, we understand
this standard to require Koste to show that Johnson’s performance was actually
deficient in some specific way and that the deficiency was causally connected to the
conflict of interest.
In the post-conviction relief proceedings, Koste did allege that the conflict
affected Johnson’s performance by: (1) causing her to prepare inadequately for trial
and (2) preventing her from giving him conflict-free advice. The Missouri Court of
-15-
Appeals found neither to warrant relief or entitlement to a hearing because Koste’s
“conclusory assertions [did] not show how the matters complained of resulted in
prejudice to his interests.” Missouri Court of Appeals Memorandum at 7. The
Missouri Court of Appeals further observed that Koste “ha[d] failed to allege facts
showing how his defense was prejudiced and his plea was rendered involuntary due
to the alleged actions or inactions of his trial counsel because of the alleged conflict
of interest.” Id.In ruling upon Koste’s § 2254 habeas petition, the district court quoted the
Missouri Court of Appeals’ reasoning and upheld the state court’s decision as “not
based on an unreasonable determination of the facts in light of the evidence
presented.” District Court Order at 9-10.
We first note that the Missouri Court of Appeals’ rejection of Koste’s
ineffective assistance claim for failure to prove prejudice resulting from the alleged
conflict of interest is not entirely consistent with the applicable standard as explained
in Mickens. As discussed above, the Supreme Court stated in Mickens that,
following Sullivan and Woods, the standard remains that “‘a defendant who shows
that a conflict of interest actually affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief.’” 122 S. Ct. at 1243 (quoting Sullivan,
446 U.S. at 349-50) (emphasis added in Mickens). In other words, even though Koste
failed to show prejudice, he nevertheless could have established a basis for relief by
showing that the alleged conflict of interest had an actual adverse effect upon
Johnson’s performance as his counsel.
As noted above, Koste generally alleged in the state courts that Johnson’s
performance was deficient because she had not adequately prepared for trial nor
provided him with conflict-free advice. However, as the Missouri Court of Appeals
suggested, Koste failed to allege, much less show, that Johnson’s trial preparation or
legal advice was deficient in any specific way or that any deficiency in her
-16-
performance was causally connected to the alleged conflict of interest arising out of
his ineffective assistance claim against Lundt.6 In sum, Koste has not sufficiently
shown that Johnson’s alleged conflict of interest adversely affected her performance
as his counsel.7
Consequently, upon reconsideration of this ineffective assistance claim, we
affirm the district court’s denial of relief pursuant to 28 U.S.C. § 2254.
IV.
We now consider the remaining claim certified by the district court for
appellate review. In the district court, Koste asserted that he was denied effective
assistance of counsel as a result of his trial counsel’s failure to obtain a mental
evaluation before he entered his guilty plea. Koste has consistently based this claim
upon the allegation that, during the time the underlying criminal charges were
pending in state court, his trial attorneys knew or should have known that he suffered
6
Koste has specifically argued in this habeas action in federal court that
Johnson failed in the state trial court to challenge an arguably multiplicitous
indictment on double jeopardy grounds and failed to ensure that Koste’s plea was
knowing and voluntary. See Brief for Appellant at 18-24. However, even if we were
to consider these two newly asserted arguments, they would not advance Koste’s
legal position because neither relates to the adequacy of Johnson’s trial preparation
or her advice to Koste.
7
We recognize that, unlike in the present case, the district court in Mickens held
an evidentiary hearing to consider the facts underlying the petitioner’s conflict-of-
interest claim. However, in Mickens, 122 S. Ct. at 1240, the Supreme Court
recognized that the petitioner had shown cause for his failure to raise the conflict
issue in state court because, through no fault of his own, he had not learned of the
conflict until after the federal habeas proceedings had begun. By contrast, in the
present case, Koste had several opportunities in the state court proceedings to assert
more specific facts to support his claim for post-conviction relief based upon his
attorney’s alleged conflict of interest.
-17-
from a multiple personality disorder. Koste now argues on appeal that the relevant
record on this issue is inadequate, notwithstanding his diligent efforts, and that he is
therefore at least entitled to an evidentiary hearing in federal court.
As described above, Koste first asserted a claim of ineffective assistance of
counsel for failure to obtain a mental evaluation in his amended motion for post-
conviction relief filed in the state trial court. In that amended motion, he alleged that
he had a multiple personality disorder which counsel should have known about and
investigated. The state trial court denied him post-conviction relief upon review of
the record, but without a hearing.8 Koste appealed to the Missouri Court of Appeals
arguing only that he should have been granted an evidentiary hearing in the state trial
court on this matter. The Missouri Court of Appeals affirmed both the state trial
court’s denial of an evidentiary hearing and its denial of post-conviction relief. As
quoted above, the Missouri Court of Appeals reasoned:
Mr. Koste never said or did anything at his guilty plea hearing that
would have caused the judge or his trial counsel to suspect that he
suffered from multiple personality disorder or any other mental disease.
Moreover, Mr. Koste does not claim that he ever requested his trial
counsel to obtain a mental evaluation to determine whether he suffered
from multiple personality disorder. In fact, he does not even claim that
his trial counsel knew or should have known that he filed a pro se
motion for a mental evaluation.
Missouri Court of Appeals Memorandum at 7.
8
As stated above, Koste first suggested that he suffers from a multiple
personality disorder when he filed his pro se “Motion for Pretrial Examination” in the
state trial court in his underlying criminal case. Addressing that pro se motion, the
state trial court, in denying Koste’s motion for post-conviction relief, reasoned that
“[t]he filing of this [pro se “Motion for Pretrial Examination”] by movant does not
indicate a lack of competency, but would seem to indicate the contrary.” Koste v.
State, PCR No. 3473, Div. No. 5, slip op. at 4 n.1 (Mo. Cir. Ct. May 10, 1996).
-18-
In the present habeas action, the district court held, upon application of the
standards in 28 U.S.C. § 2254(d), that the Missouri Court of Appeals’ decision was
not contrary to clearly established federal law or based on an unreasonable
determination of the facts in light of the evidence presented. District Court Order at
8. We agree with the district court that Koste failed to establish grounds for relief
under § 2254(d) because it was not unreasonable for the Missouri Court of Appeals
to conclude, on the record before it, that Koste’s trial counsel performed within “the
wide range of professionally competent assistance,” notwithstanding counsel's failure
to have Koste mentally evaluated. See Strickland v. Washington, 466 U.S. at 690(“[A] court deciding an actual ineffectiveness claim must judge the reasonableness
of counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct. A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment. The court must then determine
whether, in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance. In making that
determination, the court should keep in mind that counsel’s function, as elaborated
in prevailing functional norms, is to make the adversarial testing process work in the
particular case. At the same time, the court should recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decision in
the exercise of reasonable judgment.”).
Koste nevertheless argues on appeal that he is at least entitled to an evidentiary
hearing in federal court under 28 U.S.C. § 2254(e)(2).9 He cites Williams v. Taylor,
9
28 U.S.C. § 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that –
-19-
529 U.S. 420 (2000), for the proposition that, having diligently pursued this claim in
state court, he cannot be charged with having failed to develop the factual basis for
his claim in state court, and he should now have the opportunity to develop the facts
in federal court. Brief for Appellant at 28-29.
In Williams v. Taylor, 529 U.S. at 437, the Supreme Court explained:
Diligence will require in the usual case that the prisoner, at a
minimum, seek an evidentiary hearing in state court in the manner
prescribed by state law. . . . For state courts to have their rightful
opportunity to adjudicate federal rights, the prisoner must be diligent in
developing the record and presenting, if possible, all claims of
constitutional error. If the prisoner fails to do so, himself or herself
contributing to the absence of a full and fair adjudication in state court,
§ 2254(e)(2) prohibits an evidentiary hearing to develop the relevant
claims in federal court, unless the statute’s other stringent requirements
are not met. Federal courts sitting in habeas are not an alternative forum
for trying facts and issues which a prisoner made insufficient effort to
pursue in state proceedings.
In the present case, Koste did request an evidentiary hearing on this
ineffectiveness assistance claim in his motion for post-conviction relief in state court.
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
-20-
However, in asserting this ineffective assistance claim, he alleged nothing more than
the following: “Trial counsel was ineffective for failing to have psychiatric
examination of movant. Movant has a multiple personality disorder that counsel
should have known about and investigated.” Record at 87. In other words, Koste
made no effort in his motion for post-conviction relief to develop the record or assert
any facts to support the claim that counsel should have known about and investigated
his alleged multiple personality disorder. Under the circumstances, it was not
unreasonable for the state trial court to deny him an evidentiary hearing. Any
inadequacy in the state court record was largely attributable to Koste himself.
Consequently, because there has been no suggestion that the requirements in
§ 2254(e)(2)(A), (B) have been met, we hold that the district court did not err in
denying Koste an evidentiary hearing in federal court. Accord Williams v. Taylor,
529 U.S. at 437-40 (where petitioner failed to develop factual basis for a claim in
state court, he had not diligently pursued the claim; because he had not met the
requirements of § 2254(e)(2)(A), (B), he was not entitled to an evidentiary hearing
in federal court on that claim).
Upon consideration of this ineffective assistance claim, we affirm the district
court’s denial of relief pursuant to 28 U.S.C. § 2254.
V.
The judgment of the district court is affirmed.
______________________________
-21-