Jeremaine Perry v. Michael Kemna , 356 F.3d 880 ( 2004 )

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Jeremaine Perry was convicted in state court of second-degree murder and sentenced to life imprisonment. After exhausting his state post-conviction remedies, Mr. Perry filed a petition under 28 U.S.C. § 2254. The district court¹ denied Mr. Perry’s petition but granted him a certificate of appealability on one of his claims, and we then granted him a certificate of appealability on the four additional claims addressed in this appeal. We affirm the district court in all inspects.

I.

In an appeal from a judgment on a § 2254 petition, “[w]e review the district court’s findings of fact for clear error and its conclusions of law de novo.” Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir.2003). “[Wjith respect to any claim” that the state court “adjudicated on the merits,” we will grant relief only if that court’s decision is “contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or is “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).

II.

Samuel Duke, Sr., Mr. Perry’s grandfather, was shot twice in the head on January 2, 1993, and died that day. Mr. Perry, who was fifteen years old at the time, was arrested as a suspect in the murder, and eventually charged and convicted, following interviews with the police on January 2, 3, 4, and 7,1993.

Mr. Perry’s pretrial counsel was Dee Wampler, whom he retained on January 4 prior to his third interview. Mr. Perry asserts that Mr. Wampler rendered ineffective assistance by arranging for him to be interviewed by police once without the presence of counsel (on January 4) and again with counsel absent for a part of the time (on January 7), during which interviews Mr. Perry made damaging statements that were used against him at trial. Mr. Perry contends that the state court erroneously found that he and his parents decided that he should talk to the police despite Mr. Wampler’s express advice not to do so.

It is helpful to clarify the contents of the Missouri courts’ findings of fact relating to the ineffective assistance of counsel claim, as these findings are presumed to be correct absent “clear and convincing evidence” to the contrary presented by Mr. Perry, see 28 U.S.C. § 2254(e)(1). This “presumption of correctness applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. The statute makes no distinction between the factual determinations of a state trial court and those of a state appellate court.” King v. Bmoersox, 291 F.3d 539, 540 (8th Cir.2002) (internal quotations omitted), cert. denied, 537 U.S. 1093, 123 S.Ct. 693, 154 L.Ed.2d 641 (2002).

The Missouri Court of Appeals made the following factual findings in denying Mr. Perry’s ineffective assistance of counsel claim:

There was testimony at the evidentia-ry hearing that Wampler advised [Mr. Perry] against making both the January 4th and the January 7th statements to the police. Wampler testified that he initially advised [Mr. Perry] not to go to the interview on January 4, but that it was “their call. If Jermaine wanted to go it was — it would be his call; he’s the client.” Wampler testified that he did call to confirm the 1:30 appointment “as just a courtesy.” On cross-examination, Wampler testified that he advised the Perrys to not feel pushed into having to make the 1:30 appointment with the juvenile officer. Wampler testified that he “warned them about the pitfalls of talking to the police,” but the Perrys were “hell bent” on talking to the police and telling the truth.

Conversely, Eldo Rado Perry ([Mr. Perry’s] adoptive father) testified that he had not scheduled the appointments, but that the decision was made by Wam-pler. He testified that Wampler did not advise them against it, and told them to return on January 7 for an appointment with juvenile authorities. Mary Perry ( [Mr. Perry’s] mother) testified that going to the 1:30 p.m. appointment on January 4 was Wampler’s idea and that he made the phone call to arrange it. She testified that she did not want [Mr. Perry] to make a statement. [Mr. Perry] testified that when he went to the January 4 interview, it was what his attorney wanted him to do, and that he did not want to go, nor did his parents want him to go to the interview. He testified that Wampler set up the interview, and made the decision for him to talk to the police on January 7. [Mr. Perry] also testified that Wampler told him it was best to make the statement, and that Wampler never said he was better off not talking to the police.

Wampler testified that he did not remember whether he scheduled the January 7th meeting, or if someone else did. Wampler did state that his “general thought” was that if [Mr. Perry] talked to the police, it might result in him remaining under the juvenile system, and not be certified as an adult. Wam-pler accompanied [Mr. Perry] to the January 7 statement.

Giving deference to the motion court’s ability to judge the credibility of the witnesses, this court does not conclude that the court erred when finding this claim to be “without merit.” There was evidence indicating that the attorney’s performance was not deficient, as he testified that he advised [Mr. Perry] not to talk to the authorities, and [Mr. Perry] acted against that advice.

Perry v. State, 11 S.W.3d 854, 858-59 (Mo.Ct.App.2000). The district court, after citing the factual findings of the Missouri courts, stated:

Absent clear and convincing evidence to the contrary, the factual determinations of the state court are presumed to be correct. See 28 U.S.C. § 2254(e)(1). [Mr. Perry] has not presented this Court with clear and convincing evidence that would cause this Court to disregard factual determinations made by the Missouri courts. Therefore, as stated by the Missouri Court of Appeals, there is evidence tending to show that Mr. Wampler’s performance was within the bounds of competency in advising [Mr. Perry] not to make a statement to authorities on January 4th and 7th and that [Mr. Perry], at the behest of family members seeking the truth, made the statements anyhow. In light of the facts as found by the Missouri courts, this Court cannot say that the holding of the Missouri Court of Appeals is contrary to, or involved an unreasonable application of, clearly established federal law as is required before this Court can issue a writ of habeas corpus. See 28 U.S.C. § 2254(d)(1).

While the Missouri Court of Appeals made its findings of fact regarding Mr. Wampler’s behavior in the process of evaluating Mr. Perry’s ineffective assistance of counsel claim, which involved both questions of law and fact, the underlying-factual findings are entitled to deference. We agree with the district court that, in the course of rejecting Mr. Perry’s ineffective assistance of counsel claim, the Missouri Court of Appeals found it to be a fact that Mr. Wampler advised Mr. Perry against making both the January 4 and the January 7 statements to the police.

Indeed, Mr. Perry agrees in his brief that the Missouri courts made a factual finding that Mr. Wampler advised him not to talk to the police on both January 4 and 7. Discussing a statement made by Mr. Wampler during the January 7 interview, Mr. Perry argues that “[tjhis cannot be reconciled with the state court’s finding that Wampler’s advice to appellant was not to proceed with the interrogation.” Mr. Perry also notes that ‘Wampler claimed that he advised appellant not to talk to police on January 4 and 7, 1993, a position which the state court credited.” Mr. Perry’s argument is not that the Missouri courts did not find that Mr. Wampler advised him not to talk to the police on January 4 and 7, but that the presumption of correctness of this finding has either been overcome or is inapplicable. He has thus acquiesced in the district court’s determination that the state court found it to be a fact that Mr. Wampler advised him not to talk to the police, and he has consequently forfeited any claim based upon the premise that the state court never made such a factual finding.

In attempting to demonstrate that the state courts’ fact-finding was inconsistent and contradictory, and thus not entitled to a presumption of correctness, Mr. Perry relies upon evidence before the state post-conviction court that Mr. Wampler affirmatively allowed both interviews to proceed. A deputy juvenile officer testified that Mr. Wampler called to set up the date and time of the January 4 interview after indicating that Mr. Perry “wanted to come into the office and tell [the police] what happened.” During the audiotaped January 4 interview, the chief juvenile officer told Mr. Perry that Mr. Wampler had “authorized” Mr. Perry to “go ahead and talk to us in his absence” and that Mr. Wampler had “indicated to us that you can proceed.” And during the audiotaped January 7 interview, Mr. Wampler, who was present during the first part of the interview, affirmatively indicated to a detective that he was “ready to proceed to allow [Mr. Perry] to be questioned.”

None of this evidence, however, is inconsistent with or contradicts the state court’s finding that Mr. Wampler had advised Mr. Perry not to talk to the police on January 4 and 7. It does tend to show that Mr. Wampler left the ultimate choice of whether to talk to the police to his client and that he did not impede Mr. Perry’s desire to ignore his legal advice by making statements to the police. But the evidence does not constitute clear and convincing evidence sufficient to rebut the presumed correctness of the state court’s finding that Mr. Wampler advised Mr. Perry not to talk to the authorities and that Mr. Perry acted against that advice.

Mr. Perry also argues that the presumption of correctness is not dispositive of his right to relief on this claim because the Missouri courts made the “inherently contradictory findings” that, on the one hand, Mr. Wampler told him not to make a statement, but that on the other, Mr. Wampler had valid strategic reasons for advising him to confess. The Missouri Court of Appeals did note that Mr. Wampler had “state[d] that his ‘general thought’ was that if Movant talked to the police, it might result in him remaining under the juvenile system, and not be certified as an adult.” Perry v. State, 11 S.W.3d at 859. During the post-conviction hearing, however, in response to the question “And still, the meeting on the 7th was still against your advice?” Mr. Wampler had testified, “It was against my advice and admonition, and when Jeremaine said this is what he wanted to do, I said, ‘I’m with you. I will go with you. And we will go together, and that’s what we’ll do, and — and we’re off.’ ” Earlier in the post-conviction hearing, Mr. Wampler had provided a more nuanced explanation of his thoughts about the decision to submit to the January 7 interview, stating, “I talked to Jeremaine, and, you know, the general thought was that this is what he wanted to do, and he was a fine young man, fetching young man, and looked like if he did testify and cooperate, that there was a possibility that they wouldn’t certify him. And that was what we were shooting for: we didn’t want him certified.” We think that Mr. Wampler’s eventual recognition of the strategic benefits of cooperating with the police is not sufficiently contradictory to his initial “advice and admonition” that Jeremaine not talk to the police to allow a rejection of the Missouri courts’ factual findings. It is plausible that Mr. Wampler’s awareness of both Mr. Perry’s earlier fabricated statements to the police and Mr. Perry’s steadfast desire to come clean with the truth led him to abandon his attempt to prevent Mr. Perry from volunteering for another interview. We thus conclude that the Missouri courts’ findings were not inherently contradictory, and thus that their finding that Mr. Wampler advised Mr. Perry against speaking to the police on January 4 and 7 should be presumed correct.

Simply put, the Missouri courts decided to credit the testimony of Mr. Wam-pler and the deputy juvenile officer that Mr. Wampler had advised Mr. Perry not to speak with the police, and to discredit the testimony of Mr. Perry and his parents that Mr. Wampler had advised them to talk to the police. Federal habeas review “gives federal courts no license to redetermine [the] credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). We therefore reject this claim.

III.

Mr. Perry also contends that he did not waive his Miranda rights knowingly, voluntarily, and intelligently because of his limited intellect and maturity, and because of coercion and pressure applied by the police and juvenile authorities. The state argues that this claim is procedurally barred due to a failure to present it in state court.

To avoid a procedural default, a habeas petitioner must “present the same facts and legal theories to the state court that he later presents to the federal courts.” Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir.1994). In state court, Mr. Perry claimed that he “did not make a knowing and voluntary waiver of his constitutional rights to remain silent and to counsel because statements elicited from him were in violation of’ a Missouri juvenile court rule requiring the authorities to give juveniles certain warnings about their rights. The factual and legal bases for Mr. Perry’s claim in state court thus differed somewhat from those relied upon here, and it is therefore probably barred. We find it unnecessary, however, to resolve that question, as Mr. Perry’s claim clearly fails on the merits.

The United States Supreme Court has made clear that the validity of a Miranda waiver has “two distinct dimensions”'—whether the waiver is voluntary and whether it is knowing and intelligent. Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). We thus evaluate Mr. Perry’s claim that his waivers were “not knowing, voluntary and intelligent” within this bifurcated framework.

A.

We first address Mr. Perry’s argument that his Miranda waivers were not voluntary. The proper inquiry is whether the Miranda waiver “was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); United States v. Turner, 157 F.3d 552, 555 (8th Cir.1998).

Mr. Perry contends that the police utilized coercive tactics in obtaining his waiver by lying to him about his attorney’s instructions and subjecting him to repeated questioning. We reject these contentions. First, the record does not show that the police lied to Mr. Perry, as the truth of their statement to him that “Mr. Wampler has indicated to us that you can proceed [with the interview]” is consistent with the state court’s finding that Mr. Wampler had advised Mr. Perry against making statements to the police but had left the final decision on whether to talk in the hands of Mr. Perry and his parents. Mr. Perry’s argument that his waivers were involuntary because he “was repeatedly interrogated over the course of several days” is also plainly without merit. The waivers at issue undisputedly occurred before the beginning of each of Mr. Perry’s interviews. The quantity and frequency of questions asked within an interview cannot possibly have any effect on a waiver that precedes that interview.

To the extent that Mr. Perry is contending that the frequency and duration of the questioning rendered his confessions involuntary despite his waivers, we reject this contention as well. Mr. Perry voluntarily appeared at the police station for both of the interviews in which he made the damaging recorded statements used against him at trial. The duration of the questioning was not excessive: the January 4 interview lasted one hour, and the January 7 interview lasted one-and-a-half hours. Transcripts of each of the interviews reveal that, following Mr. Perry’s Miranda waivers, police investigators asked direct and straightforward questions, and no threats or promises of leniency were made. Mr. Perry has failed to show that his confessions were involuntary because he has failed to show that he was subjected to coercive police tactics.

B.

We also reject Mr. Perry’s argument that his waivers were not knowing and intelligent. A valid Miranda waiver “must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran, 475 U.S. at 421, 106 S.Ct. 1135. The Missouri Court of Appeals found that “under the totality of the circumstances, it is clear that [Mr. Perry] was fully aware that anything he said during each of his interviews could be used against him in an adult court proceeding.” State v. Perry, 954 S.W.2d 554, 563 (Mo.Ct.App.1997) (Perry I). Mr. Perry has not presented clear and convincing evidence sufficient to rebut the presumed correctness of these findings. Indeed, there is substantial evidence indicating that Mr. Perry subjectively understood and waived his rights to remain silent and to have counsel present. As the state court noted, transcripts from Mr. Perry’s interviews support a conclusion that he was informed of his rights and was afforded appropriate warnings before the beginning of each interview, and that he affirmatively indicated his understanding of those rights. Id. at 562-63. Mr. Perry thus cannot prevail on this claim.

IV.

Mr. Perry’s third claim is that his right to the effective assistance of counsel was violated by Mr. Wampler’s disclosure to the prosecution of privileged or secret information obtained from Mr. Perry during attorney-client conferences. The proper standard for evaluating Mr. Perry’s claim is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which Mr. Perry must show both deficient performance on Mr. Wampler’s part and resulting prejudice to his case.

Just prior to Mr. Perry’s trial, the special prosecutor disclosed to the trial court that he had met with Mr. Wampler and that he intended to call Mr. Wampler to testify that, prior to Mr. Perry’s confession to the police, Mr. Perry made a statement to Mr. Wampler that he had shot his grandfather twice. After an objection and a hearing to determine whether the statements were protected by the attorney-client privilege, the special prosecutor decided not to call Mr. Wampler as a witness. Mr. Perry contends that, despite the fact that the communications between Mr. Perry and Mr. Wampler were never placed before the jury, Mr. Wampler’s decision to provide the prosecution with statements made by Mr. Perry amounts to ineffective assistance of counsel in violation of Mr. Perry’s sixth amendment rights.

It is undisputed that Mr. Wampler met with prosecutors and provided them with statements made by Mr. Perry during attorney-client conferences that his parents attended. The Missouri Court of Appeals found that “such a meeting is unusual, if not improper,” Perry v. State, 11 S.W.3d 854, 861 (Mo.Ct.App.2000) (Perry II), and the district court found that “Mr. Wampler disclosed confidential information regarding Petitioner’s statements to Special Prosecutors in this case and thus fell below the standard expected of a reasonably competent attorney under similar circumstances.”

We agree with the district court that Mr. Wampler’s revelation to the prosecution of secret information relating to his representation of Mr. Perry was professionally unreasonable, whether or not Mr. Perry’s statements were protected by the attorney-client privilege. We also agree with the district court, however, that Mr. Perry has failed to make the requisite showing that Mr. Wampler’s actions prejudiced his defense.

Prejudice is shown only where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We concede that Mr. Wampler’s disclosures may have had some negative impact on Mr. Perry’s defense. The special prosecutor gave the following reason to the trial court for seeking to introduce Mr. Wampler’s statement: “I know what’s coming down the road. [The defendant’s going to ... say, they forced me to make a statement that wasn’t true ... [W]e have been told that his position is, I didn’t do this crime, that I confessed to something I didn’t do.” The information supplied by Mr. Wampler gave the special prosecutor insight into the defense strategy of challenging the reliability of Mr. Perry’s statements to the police. The mere possibility of Mr. Wampler testifying might have affected Mr. Perry’s defense strategy at trial. Because Mr. Wampler did not testify, however, the theory that his disclosures to the prosecution altered the jury’s verdict is too speculative to satisfy the “prejudice” requirement of an ineffective-assistance claim. Mr. Perry has failed to show that it was reasonably probable that Mr. Wampler’s actions changed the result of his trial.

V.

Mr. Perry was certified to stand trial as an adult by former Missouri Circuit Judge Thomas McGuire. Mr. Perry contends that the proceedings before Judge McGuire violated his rights to due process and equal protection of the law under the fifth and fourteenth amendments because Judge McGuire was prejudiced against Mr. Perry, who is black, because of his race. The due process clause guarantees a fair and impartial judge, of course, but we begin a consideration of this kind of claim with a presumption that decision-makers are honest and impartial. See Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir.1999) (per curiam).

Mr. Perry’s argument that Judge McGuire’s decision to certify him as an adult was motivated by racial bias is based on racially derogatory remarks that Judge McGuire allegedly made off the record. Paul Hungerford, Judge McGuire’s former bailiff, testified at a motion hearing before the trial court that while the petition to certify Mr. Perry as an adult was pending, Judge McGuire said “something to the effect that” Mr. Perry’s parents “had raised a nasty little nigger that killed the best niggers in Springfield.” Mr. Hungerford also admitted in his testimony, however, that he had had a disagreement with Judge McGuire over a job. In Judge McGuire’s deposition, which was introduced at the hearing, he denied ever having made the comments alleged by Mr. Hungerford or any other racist comments in connection with the case. The state trial court chose to believe Judge McGuire and to disbelieve Mr. Hungerford, and the state appellate court, in denying the claim, deferred to the trial court’s superior opportunity to determine the credibility of witnesses whom it observes. Perry I, 954 S.W.2d at 567-68 & n. 19.

Under § 2254(e)(1), the Missouri courts’ finding discounting Mr. Hungerford’s testimony is entitled to a presumption of correctness unless Mr. Perry can rebut the presumption by “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1). He has failed to present such evidence. A federal habeas court has no power to redetermine Mr. Hungerford’s credibility. See Marshall, 459 U.S. at 434, 103 S.Ct. 843. Furthermore, Mr. Perry has identified no other evidence in the record tending to show that Judge McGuire’s decision to dismiss the juvenile proceeding was the product of racial prejudice. Although Mr. Perry asks us to consider newspaper articles about events involving Judge McGuire unrelated to Mr. Perry’s proceedings, those articles were not in the record below and, in any event, are necessarily hearsay, and thus could not properly be before the court.

Mr. Perry argues that he was entitled to an evidentiary hearing in the federal district court in order to develop a factual basis for this claim. A federal habeas court’s power to conduct an eviden-tiary hearing is, however, sharply limited by 28 U.S.C. § 2254(e)(2)(B), which provides that, as a prerequisite to such a hearing, a petitioner must show that “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.” Because Mr. Perry does not even contend that he has any new evidence bearing on his actual innocence, it would be inappropriate to conduct new evidentia-ry inquiries at this stage in the proceedings. For all of the reasons stated, we deny this claim.

VI.

Mr. Perry was brought to trial and convicted by a jury in September, 1996, over three-and-a-half years after his original detention in juvenile court. He contends that this delay deprived him of his sixth amendment right to a speedy trial.

The state appellate court evaluated and rejected this claim using the principles outlined in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), under which a court faced with this kind of claim is obliged to consider the length of delay, the reason for the delay, whether the defendant asserted his right in the trial court, and any prejudice that the delay caused the defendant. Perry I, 954 S.W.2d at 565-66. The court first noted that the delay in bringing Mr. Perry to trial exceeded eight months, and was thus presumptively prejudicial, inviting further inquiry. Id. The court then found that the reason for the delay was a combination of Mr. Perry “engaging] in a vigorous defense, involving the filing of numerous motions, many of which were subsequently amended during the litigation process,” and the State “engaging] in a vigorous prosecution with its attendant motions, together with its applications for change of judge.” Id. at 566. Next, the court found that, as Mr. Perry admitted, he had failed to move for an earlier trial. Id. Finally, the court found that Mr. Perry’s evidence of prejudice from the delay due to his aging and change in personality was “speculative, at best.” Id. (internal quotations omitted).

The state court’s conclusion that Mr. Perry’s rights were not violated, arrived at after a careful consideration of the relevant circumstances noted above, was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence presented to the state court. See 28 U.S.C. § 2254(d). This claim therefore must fail.

Mr. Perry asserted, for the first time in the district court, that he was prejudiced because “evidence was lost” and “memories faded” during the time between arrest and trial. We agree with the district court that this argument is procedurally barred due to Mr. Perry’s failure to present it in state court.

VII.

For the reasons indicated, we affirm the district court’s denial of Mr. Perry’s petition.

1 . The Honorable Dean Whipple, Chief Judge, United States District Court for the Western District of Missouri.