Robert Cochran v. Dave Dormire ( 2012 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 11-3765
    ___________________________
    Robert D. Cochran
    lllllllllllllllllllllPetitioner - Appellant
    v.
    Dave Dormire, Superintendent; Chris Koster
    lllllllllllllllllllllRespondents - Appellees
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: November 13, 2012
    Filed: December 14, 2012
    [Published]
    ____________
    Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
    ____________
    PER CURIAM.
    Robert Cochran appeals the district court's1 denial of his petition for a writ of
    habeas corpus under 
    28 U.S.C. § 2254
    . We affirm. Because we affirm the denial of
    1
    The Honorable Howard F. Sachs, United States District Judge for the Western
    District of Missouri.
    Cochran's petition on the merits, we do not address Respondents' contention that
    Cochran's petition is untimely.
    I.
    Anthony Hurt was shot and killed during a burglary of his home on the evening
    of June 14, 1996. Arthur Burns, Hurt's roommate, was arriving home in his car on
    June 14 when he observed two black males running out the front door of Hurt's home.
    Burns pursued the two, but he soon crashed his car and returned to Hurt's home.
    Finding Hurt fatally shot, Burns called the police. The police arrived around 7:00
    P.M.
    Later that night, police questioned Ronsell Williams in connection with the
    crimes. Williams confessed he, Cochran, and Wornel Mitchell had burglarized Hurt's
    home. According to Williams, Hurt returned home unexpectedly during the burglary,
    and Cochran shot Hurt as Williams and Mitchell ran out the front door. Mitchell
    surrendered to police on June 15, confessed to the burglary, and also claimed Cochran
    shot Hurt. Questioned by police, Cochran denied he was involved. He admitted he
    saw Williams and Mitchell on June 14, but he claimed he left them before the crimes
    took place to visit a friend, James Green. Cochran also stated that after visiting
    Green, he visited his girlfriend, Jackie Reed. According to Cochran, he and Jackie
    spent the night in a room at the Bluebird Motel reserved for them by Malcolm,
    another of Cochran's friends.
    At Cochran's trial, Williams and Mitchell testified against Cochran.2
    Additionally, Police Sergeant Jay Pruetting testified police had been unable to
    confirm Cochran's claim that he parted with Williams and Mitchell to visit Green.
    2
    Cochran's first trial ended in a mistrial. Cochran was convicted following a
    second trial. We take these facts from the state court.
    -2-
    Pruetting also testified that police had questioned staff at the Bluebird Motel and at
    several other motels in the area and found no record of Cochran, Jackie Reed, or
    Malcolm at any of the motels ("Pruetting's motel testimony"). Cochran's trial counsel
    did not object to Pruetting's motel testimony.
    Jackie Reed and her mother Mary Reed testified on Cochran's behalf. Neither
    woman had a criminal record. The Reeds testified Cochran had visited Jackie Reed
    on June 14, 1996 for two short periods, first at 6:30 P.M. and again between 7:15 and
    7:30 P.M. Jackie Reed further testified Cochran returned around 10:00 P.M., at
    which time they left to spend the night in a motel. She believed they stayed at either
    the Bluebird Motel or the Skyview Motel. Green and Malcolm were not called to
    testify.
    The jury convicted Cochran of one count of second-degree murder, one count
    of first-degree burglary, and one count of armed criminal conduct. Cochran received
    a life sentence on the murder conviction and fifteen-year sentences on each of the two
    remaining convictions, all to run concurrently. His direct appeals were unsuccessful.
    Cochran then filed a Missouri Supreme Court Rule 29.15 motion for post-
    conviction relief. Cochran argued Pruetting's motel testimony was hearsay to which
    his trial counsel should have objected. He argued the admission of Pruetting's motel
    testimony prejudiced his alibi defense because it undermined the credibility of his
    entire statement to the police. He also argued his trial counsel was deficient in failing
    to investigate Green as an alibi witness. He argued Green's testimony would have
    corroborated Cochran's statement to police and thus supported Cochran's alibi defense
    as a whole.3
    3
    Cochran raised additional claims in his 29.15 motion and in his federal habeas
    petition in the district court, but on this appeal he raises only his trial counsel's failure
    to object to Pruetting's motel testimony and failure to investigate Green.
    -3-
    Cochran's trial counsel testified at his 29.15 hearing. However, some ten years
    had passed since Cochran's trial, and his trial counsel could not recall anything about
    Cochran's case.4 She could only provide generic testimony about her usual trial
    practices. She stated it was not her practice to call all potential alibi witnesses.
    Instead, she would call the witness who would "come off the best," taking the
    criminal history of the potential witnesses into account. She described the difficulty
    of contacting potential witnesses who, due to a pending criminal charge or
    incarceration, were represented by attorneys—attorneys might advise their clients
    against testifying and prevent her from contacting their clients directly. Finally, she
    testified she always developed a strategy before trial.
    Green was deposed in connection with Cochran's 29.15 motion because he
    could not be present at the hearing. Green confirmed Cochran visited him on June
    14, 1996, "earlier than evening, [or] earlier evening." Green testified he spoke with
    the police either late on June 15 or early on June 16 and told them Cochran had
    visited him on June 14. Green acknowledged he was incarcerated on February 19,
    1998, the last day of Cochran's trial. He testified no one from the public defender's
    office contacted him between June 14, 1996 and the end of February 1998. At the
    time of Cochran's trial, Green had two convictions for drug possession on his record.
    Green stated he would have responded to a request to testify on Cochran's behalf.
    Applying Strickland v. Washington, 
    466 U.S. 668
     (1984), the Missouri state
    court denied Cochran's motion. It concluded that the crimes occurred around 6:30
    P.M. on June 14. The court concluded that while Pruetting's motel testimony may
    4
    The state court allowed Cochran to file his 29.15 motion out of time. Cochran
    claimed he timely filed a 29.15 motion, but on bad advice of counsel, he filed in the
    wrong court, where the motion lingered for eight years before Cochran discovered his
    mistake. As stated above, because we affirm denial of Cochran's petition on the
    merits, we do not address Respondents' argument that Cochran's current federal
    petition is untimely.
    -4-
    have constituted hearsay, Cochran had not proven he suffered any prejudice as a
    result of his trial counsel's failure to object. First, Jackie Reed's testimony—that she
    and Cochran had spent the night at either the Bluebird or the Skyview
    motel—supported Cochran's statement to police. Second, the court noted Jackie's
    testimony that she and Cochran did not leave for the motel until 10:00 P.M.. Since
    Pruetting's motel testimony did not relate to Cochran's alibi for the time the crimes
    were committed, the court concluded, Cochran had not shown prejudice.
    The state court also concluded Cochran had failed to prove his trial counsel had
    not investigated Green. The court noted the generic testimony of Cochran's trial
    counsel that she always investigated alibi witnesses and that potential witnesses who
    were incarcerated and represented by attorneys were problematic. The court
    emphasized that, under Strickland, counsel is strongly presumed to have provided
    competent assistance, and the court ruled that Cochran had failed to show his trial
    counsel's decision not to call Green was not merely a strategic decision.
    The Missouri Court of Appeals affirmed, and Cochran subsequently filed a
    federal habeas petition alleging ineffective assistance of counsel. The district court
    largely adopted the state court's factual findings and denied Cochran's petition. On
    appeal, Cochran contends his trial counsel was ineffective by (1) failing to object to
    Pruetting's motel testimony and (2) failing to investigate Green as a potential witness.
    II.
    We may grant a petition for habeas corpus under § 2254 only if the state court
    adjudication "resulted in a decision that was contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by the Supreme Court
    of the United States" or "resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented in the State court
    proceeding." 
    28 U.S.C. § 2254
    (d). "[A] determination of a factual issue made by a
    -5-
    State court shall be presumed to be correct. The applicant shall have the burden of
    rebutting the presumption of correctness by clear and convincing evidence." 
    28 U.S.C. § 2254
    (e). Finally, "a state-court factual determination is not unreasonable
    merely because the federal habeas court would have reached a different conclusion
    in the first instance." Wood v. Allen, 
    558 U.S. 290
    , 
    130 S. Ct. 841
    , 849 (2010).
    To succeed on a claim of ineffective assistance of counsel, a defendant has the
    burden of showing (1) trial counsel was deficient and (2) the defense was prejudiced
    as a result. Strickland, 
    466 U.S. at 687
    . To demonstrate deficient performance, a
    defendant must show "counsel's representation fell below an objective standard of
    reasonableness." 
    Id.
     at 687–88. To show prejudice, "[t]he defendant must show that
    there is a reasonable probability that, but for counsel's unprofessional errors, the
    result of the proceeding would have been different. A reasonable probability is a
    probability sufficient to undermine confidence in the outcome." 
    Id. at 694
    .
    A. Failure to object to Pruetting's motel testimony
    We agree with the district court that the failure of Cochran's trial counsel to
    object to Pruetting's motel testimony does not entitle Cochran to habeas relief. Even
    if we assume that Pruetting's motel testimony constituted hearsay and that the failure
    of Cochran's trial counsel to object constituted deficient performance, there is no
    reasonable probability the outcome of Cochran's trial would have changed had
    Pruetting's motel testimony been disallowed.
    We acknowledge Cochran's argument that Pruetting's motel testimony impacted
    the credibility of Cochran's entire statement to the police. However, as we note
    above, a state court's determination is not unreasonable simply because we might
    have reached a different conclusion. See Wood, 
    130 S. Ct. at 849
    . The state court
    determined that Cochran failed to prove prejudice because Pruetting's motel
    testimony did not specifically relate to the time frame of the crimes. The state court
    -6-
    also noted Jackie Reed's testimony—that she and Cochran spent the night of June 14
    in a motel—supported Cochran's statement to police. On these facts, we cannot say
    the state court's determination that Cochran failed to prove prejudice was contrary to
    Strickland. Pruetting's motel evidence consisted of one short statement regarding the
    outcome of police inquiries. Considering the significant body of testimony from
    Williams, Mitchell, Mary Reed, additional state witnesses, and four additional
    defense witnesses, we find no reasonable probability that the admission of Pruetting's
    motel evidence altered the outcome of Cochran's trial.
    B. Failure to investigate Green as a witness
    We find no basis on which to upset the state court's determination that Cochran
    failed to carry his burden of proving his trial counsel did not investigate Green. To
    prove his trial counsel did not investigate Green, Cochran relies on Green's testimony
    that no one from the public defender's office contacted Green between June 4, 1996
    and the end of February 1998. The state court noted that Green was incarcerated at
    the time of Cochran's trial. It also cited the testimony of Cochran's trial counsel
    regarding her general practice of always interviewing alibi witnesses and the
    difficulties of procuring testimony from potential witnesses who were incarcerated
    and represented by attorneys. On this record we cannot say the state court's
    determination was unreasonable.5 The single claim that Green was not contacted by
    Cochran's trial counsel, even if accepted, does not establish that Cochran's trial
    counsel failed to investigate Green. Cochran has not provided the clear and
    5
    Cochran claims that given the difficulties of locating evidence years after his
    trial, the state court held him to an "impossible" standard of proof when it determined
    he had failed to prove his trial counsel did not investigate Green. However, the fact
    that gathering evidence of his trial counsel's performance was made more difficult by
    the passage of time does not alter the legal standard of Strickland under which
    Cochran bears the burden of proof.
    -7-
    convincing evidence we require to rebut the presumption that the state court's
    determinations were correct. See 
    28 U.S.C. § 2254
    (e).
    Additionally, we find no reasonable probability that Green's testimony would
    have changed the outcome of Cochran's trial. Based on the facts Burns reported to
    police and the time police arrived at Hurt's home, it was not unreasonable for the state
    court to determine that the crimes were committed around 6:30 P.M. on June 14.
    Assuming the crimes took place at 6:30 P.M., the time frame for Cochran's alibi was
    covered by the testimony of Jackie and Mary Reed. According to Green's deposition,
    Green could only testify that Cochran visited him at some point in the early evening
    of June 14. This evidence is not sufficiently strong to create a reasonable probability
    that Green's testimony would have altered the outcome of Cochran's trial, especially
    since Jackie and Mary Reed provided direct alibi testimony. Thus, the state court's
    determination that Cochran failed to show prejudice was not contrary to or an
    unreasonable application of federal law.
    III.
    For the reasons stated above, we affirm the district court's denial of Cochran's
    petition.
    ______________________________
    -8-
    

Document Info

Docket Number: 11-3765

Judges: Riley, Wollman, Melloy

Filed Date: 12/14/2012

Precedential Status: Precedential

Modified Date: 11/5/2024