Richard Dale Hoon v. State of Iowa, John F. Ault, Warden , 313 F.3d 1058 ( 2002 )

BRIGHT, Circuit Judge,

dissenting.

I respectfully dissent. When you ask the wrong question, you get a wrong answer. I think the majority here has done just that in agreeing with the Iowa Court of Appeals and reversing the thoughtful and incisive opinion of the federal district judge.

The majority adopts the same question for review as the Iowa court, namely whether Richard Dale Hoon showed that “there is a reasonable probability that but for counsel’s unprofessional errors, the result ... would have been different.” Op. at 1061 (citing Siers v. Weber, 259 F.3d 969, 974 (8th Cir.2001)). Both conclude that no prejudice existed because “[t]here was enough other evidence in the record that would convict Hoon of these crimes.” (J.A. at 168.)

The majority here reverses the district court on the ground that “the district court failed to give appropriate deference to the state court’s finding that Hoon suffered no prejudice as a result of his counsel’s error.” Op. at 1060. • I believe that the majority applied an incorrect standard. The standard is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (cited in Hoon v. State, No. 4-99-CV-90578 (Ia.2001), J.A. at 224). A reasonable probability is less than a preponderance. See Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Therefore, I believe the standard is not the “could have convicted” standard used by the majority, but rather the question to be answered from the record is whether the Iowa Court of Appeals unreasonably concluded that a complete redaction of Hoon’s co-defendant’s confession did not create a reasonable likelihood that the jury would find reasonable doubt as to Hoon’s guilt.

The district court undertook Hie correct inquiry, and considered what the evidence would look like absent trial counsel’s deficient performance. The district court undertook the analysis as set out in Strickland:

When a defendant challenges a conviction, the question is .whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt....

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect .... Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defen-dánt has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052 (emphasis added).

Here, the federal district court determined that, had Hoon’s counsel made sure Timothy Caskey’s confession was correctly redacted, under Iowa law the confession could not have even mentioned the existence of the third person (Hoon). In addition, the court would have been required to issue a limiting instruction to the jury. These changes would indeed appear to “alter[ ] the entire evidentiary picture.” Id. at 696, 104 S.Ct. 2052. The district court, following Strickland’s dictates, noted what evidence was untouched by the change and what evidence was altered. After redacting Caskey’s confession to include no reference to Hoon, Ailleen Foley’s testimony that Caskey and Hoon were the two intruders would be directly inconsistent with Caskey’s statement that he and David Carney (with no méntion of a third person) were the intruders. In addition, the jury would be instructed that Caskey’s confession, which did not mention the existence of a third intruder, could not be used against Hoon.

The federal district court noted Foley’s apparent confusion over who was the gunman, her several statements that she did not get a good look at the non-gunman, and her statements implying fear and anxiety during the break-in, would cast some doubt on her credibility. The court determined that the credibility battle between Caskey’s confession and Foley’s testimony, along with the jury instruction that the confession should not have been used against Hoon, was sufficient to create a reasonable probability that a jury would have reasonable doubt .as to Hoon’s guilt. (J.A. at 226.) Therefore, the district court properly concluded that there was a reasonable probability that Hoon would have been acquitted absent the violation, thereby showing prejudice.

I agree with the district court that the Iowa court was unreasonable in concluding that correcting for the Bruton violation does not “undermine confidence in the outcome” of the trial. Therefore, the Strickland requirements have been met here. I am mindful of the deference due a state court under the unreasonable standard, but I think the state court here unreasonably applied federal law.

Therefore, I respectfully dissent and would affirm the district court’s decision.