Scoggins v. Hall , 765 F.3d 53 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2338
ALLEN SCOGGINS,
Petitioner, Appellant,
v.
TIMOTHY HALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Kayatta, Circuit Judges.
Alan D. Campbell for appellant.
Annette C. Benedetto, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Martha Coakley, Attorney General,
Commonwealth of Massachusetts, was on brief, for appellee.
August 26, 2014
KAYATTA, Circuit Judge. Allen Scoggins was convicted of
first-degree murder in 1998 and is currently serving a life
sentence in a Massachusetts prison. He filed this petition for a
writ of habeas corpus under 28 U.S.C. § 2254, seeking to invalidate
his conviction on the ground that his court-appointed attorney
provided ineffective assistance by forgoing the opportunity to
interview a prosecution witness, Barbara Holbrook, before trial,
and declining to interview or to call at trial any of a number of
witnesses who, he claims, could have rebutted her testimony. The
district court denied the petition, reasoning that the state
court's rejection of the ineffective-assistance claim did not
constitute an unreasonable application of the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), for evaluating such
claims. We agree, and thus affirm.
I. Background
We take the facts largely as recounted by the
Massachusetts Supreme Judicial Court ("SJC") decision affirming
Scoggins's conviction, supplemented with other record facts
consistent with the SJC's findings. See Yeboah-Safeh v. Ficco, 556
F.3d 53 (1st Cir. 2009); see also Commonwealth v. Scoggins, 439
Mass. 571 (2003).
At around 1:20 A.M. on May 16, 1997, a taxicab, its
lights on and its engine running, rolled slowly onto a lawn near
Wyman Street in Brockton, Massachusetts. Its meter read $3.00, but
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the fare would never be paid. Its driver, Ishmael Rivera, lay
dead, mere feet away, after having been shot three times, including
once in the face and once in the chest. A coroner would later
report that each shot alone would have been sufficient to cause
Rivera's death.
The man who fired the shots, petitioner Allen Scoggins,
decamped to South Carolina shortly thereafter. While there, he
spent time with his uncle, Vernon Campbell ("Campbell"), and
Campbell's then-girlfriend, Barbara Holbrook. And although Scoggins
was indicted for first-degree murder in June of 1997, he managed to
evade detection until August of that year, when Holbrook went to
the police to file a domestic-violence complaint against Campbell.
Either while or soon after filing the domestic-violence complaint,
Holbrook told police that she knew of Scoggins's whereabouts and
that Scoggins told her that he murdered Rivera in an attempted
armed robbery gone wrong. Scoggins was detained soon afterwards.
While in custody, Scoggins confessed that he was Rivera's
final fare and that when he entered Rivera's taxicab, he carried
with him a loaded, borrowed gun. He further admitted that he
brandished the gun after Rivera made a wrong turn, and that the gun
he carried and brandished was the same gun that killed Rivera.
Though he claimed he was intoxicated at the time of the shooting
and could not remember everything that transpired, he was adamant
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that he acted in self-defense. He also said that he was sorry for
taking Rivera's life.
At trial, Holbrook testified that when Scoggins was in
South Carolina, Scoggins lived with his cousin Annette Campbell,
and would often play cards with Campbell and Holbrook. She further
testified that over a game of cards between Holbrook, Scoggins,
Campbell, and another cousin, Jermaine Campbell, at the home of a
friend named Pam Price, Scoggins "talked about the murder," saying
"that he called a cab to go -- he didn't say a [specific]
destination. He was going to stick up the cab driver. The cab
driver got scared, tried to call the police; but the cab driver was
going to jump out the car. And [Scoggins] just got scared, and he
jumped out the car and shot him." She also said that Scoggins
"[j]okingly" suggested that he "couldn't take cabs anymore."
On cross, Holbrook fared poorly. She partially recanted
portions of her statement to the police -- and portions of her
testimony. Specifically, she conceded that several statements by
Scoggins that she previously testified had been said in her
presence had instead been relayed to her by Campbell.1 Holbrook
did not, however, recant all of her testimony. She also did not
1
Holbrook said that Campbell, not Scoggins, told her that
Scoggins brought the gun that he used in the murder down to South
Carolina and that Scoggins had not been alone in the cab. She
further denied -- contrary to the statement she had given police --
that she ever directly asked Scoggins whether he was the one who
killed Rivera.
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concede that everything she said Scoggins said had been reported to
her by others.2 In his closing argument, Scoggins's counsel
exploited Holbrook's shaky performance, telling the jury, "Barbara
Holbrook, I thought to put her before you as a credible witness is
an insult to your intelligence. This girl had no . . . idea of
what was going on . . . . She adopted everything anybody said to
her. I asked her, 'Did you say that?' 'No. I heard it from Vernon
Campbell.' 'Well, didn't you read the statement? You said he did,
or he didn't.' . . . 'Well, I did, but I didn't say that. Vernon
Campbell said that.'" Ultimately, he asked the jury, "[w]ould you
want to trust your future, and the fate of your family to Barbara
Holbrook? Is that the kind of witness you want to rely on to
convict somebody of first degree murder -- because of Barbara
Holbrook? I think not."
The jury found Scoggins guilty of first-degree murder on
theories of premeditation and felony murder, and Scoggins received
a life sentence. Represented by new counsel, Scoggins appealed.
In that appeal, he also filed a 50-page pro se brief in which he
raised the argument, raised here, that trial counsel should have
interviewed and brought to testify Campbell, Price, and Jermaine
Campbell. However, neither Scoggins nor his appellate counsel
2
Specifically, the ambiguous testimony on cross did not
compel a finding that Holbrook recanted her claim that Scoggins
said that he planned to stick up the cab driver, and, further, that
Scoggins shot the driver.
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advanced the argument, also raised here, that Scoggins's trial
counsel should have interviewed Holbrook before trial. The appeal
failed.
After filing a timely habeas petition and securing a
stay, Scoggins commenced an effort to secure collateral review in
state court by filing a second motion for new trial. In that
motion, Scoggins first presented the argument that trial counsel
was ineffective for having failed to interview Holbrook. In
support of that argument, Scoggins included an affidavit from
Holbrook claiming that, had she been interviewed prior to trial,
she would have told Scoggins's attorney that she "did not hear Mr.
Scoggins make any statements about this case." Rejecting that
argument, the Massachusetts Superior Court expressly found that
"the doctrine of waiver bars the defendant's current claims."
Adding belt to suspenders, the court further found that counsel's
decision not to interview Holbrook was not manifestly unreasonable,
and thus could not support an ineffectiveness claim. Finally, the
court found Holbrook's affidavit to be incredible, noting among
other things that it directly contradicted the testimony that she
gave at trial.
After unsuccessfully appealing the denial of his second
motion for a new trial, Scoggins returned to his stayed action in
the district court, pressing the arguments he now presses on
appeal. The district court denied the petition, but issued a
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Certificate of Appealability on Scoggins's claim that trial
counsel's failure to interview Holbrook, and failure to interview
or call at trial Campbell, Price, and Jermaine Campbell,
constituted ineffective assistance. See 28 U.S.C. § 2253(c).
Scoggins appealed. We have jurisdiction under 28 U.S.C. § 2253(a).
II. Review of Strickland claims under AEDPA
Scoggins argues that the state court proceedings violated
the Sixth Amendment both because his trial counsel neither
interviewed Holbrook before she testified nor contacted Campbell,
Price, or Jermaine Campbell to rebut her testimony. To prove a
Sixth Amendment violation based on the failings of defense counsel,
a petitioner must demonstrate both "(1) that 'counsel's performance
was deficient,' meaning that 'counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment'; and (2) 'that the deficient
performance prejudiced the defense.'" United States v. Valerio,
676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). In assessing the adequacy
of appointed counsel, we "indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance," see Strickland, 466 U.S. at 689, finding
deficiency only "where, given the facts known [to counsel] at the
time, counsel's choice was so patently unreasonable that no
competent attorney would have made it." Knight v. Spencer, 447
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F.3d 6, 15 (1st Cir. 2006) (internal quotation marks omitted).
And, to establish prejudice, a defendant must demonstrate "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.
Adding more to Scoggins's burden in this case are the
limitations on our review imposed by 28 U.S.C. § 2254, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), which governs the standards by which we review
collateral attacks on state-court convictions. That provision,
"designed to confirm that state courts are the principal forum for
asserting constitutional challenges to state convictions," see
Harrington v. Richter, 131 S. Ct. 770, 787 (2011), authorizes us to
reverse a state court's adjudication of the merits of a
petitioner's legal claim only where the state-court adjudication
either:
(1) 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
(2) 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).
Scoggins rests his claim on the argument that the state
court's adjudication resulted in a decision constituting an
"unreasonable application" of federal law. He therefore must
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demonstrate "that the state court's ruling on the claim . . . was
so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement." Richter, 131 S. Ct. at 786-87.
Additionally, to the extent that Scoggins's constitutional
arguments depend on factual premises the state court rejected, we
are required by statute to "presume[] . . . correct" the state
court's factual determinations, leaving to Scoggins the weighty
"burden of rebutting the presumption of correctness by clear and
convincing evidence." See 28 U.S.C. § 2254(e)(1); see also Coombs
v. Maine, 202 F.3d 14, 18 (1st Cir. 2000). In short, we do not
lightly undertake to substitute our judgments for those of the
courts of the various sovereign states that fall within our
jurisdiction, see, e.g., Coleman v. Thompson, 501 U.S. 722, 748
(1991) ("Federal intrusions into state criminal trials frustrate
both the States' sovereign power to punish offenders and their
good-faith attempts to honor constitutional rights.") (internal
citation, alteration, and quotations marks omitted), and our review
of their work is particularly deferential when the question is
counsel's effectiveness. Richter, 131 S. Ct. at 788 ("The standards
created by Strickland and § 2254(d) are both highly deferential,
and when the two apply in tandem, review is doubly so.") (internal
citations and quotation marks omitted).
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III. Analysis
We address first Scoggins's claim that Campbell, Price,
and Jermaine Campbell, if called, could have "contradicted"
Holbrook's testimony by saying that Scoggins never said anything
about a shooting of a cab driver in Holbrook's presence. None of
these three individuals have themselves so testified or affirmed.
More importantly, any such contradiction of Holbrook's testimony
would likely have caused the factfinder -- and government counsel
-- to ask how Holbrook otherwise could have recounted the details
she recounted. A crucial part of her testimony was that Scoggins
shot Rivera as or after Rivera exited the cab, which was exactly
where the body was found. Either she heard Scoggins say what she
claimed he said, or Campbell, et al., told her he said it, or she
was extraordinarily lucky in making it up. Only the third,
unlikely scenario would help Scoggins; the other two would be
harmful.
Campbell, too, twice told police that Scoggins pulled a
gun on the cab driver to get money -- precisely the other
inculpatory fact to which Holbrook testified. Putting him on the
stand as a friendly witness -- he was, after all, Scoggins's uncle
-- only to have him possibly tripped up by his prior statements
might reasonably have been seen as a big risk, especially when the
defense could likely offer no explanation for how Holbrook could
know the cab driver was shot outside the cab. Weighing these risks
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against the possible (though unlikely) upsides of such a line of
inquiry is precisely the sort of task that our adversarial system
entrusts to counsel, rather than to the hindsight of a later,
reviewing court. In any event, in order to reject Scoggins's claim
under the applicable standards of review, we need only conclude
that the state court acted reasonably in determining that defense
counsel's decision to refrain from calling Campell, Price, and
Jermaine Campbell was not beyond the pale of reason. Because we
have no trouble doing so, we reject Scoggins's claim that the
failure to pursue a line of inquiry involving Price and the two
Campbells constituted deficient performance.
The argument concerning the failure to interview Holbrook
raises different issues. Initially, it appears that Scoggins did
not timely raise this argument under Massachusetts procedure, and
thus waived the argument. Indeed, this is precisely what the
Massachusetts Superior Court held: When Scoggins tried to raise the
claim on his second motion for new trial, the court rejected the
argument on the ground that it should instead have been brought in
his initial motion for a new trial and preserved on Scoggins's
direct appeal thereof. Hence, the state court's rejection almost
certainly rests on waiver -- an adequate, alternative state law
ground that places the argument's merits beyond the reach of our
review. E.g., Beard v. Kindler, 558 U.S. 53, 55 (2009) ("A federal
habeas court will not review a claim rejected by a state court 'if
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the decision of [the state] court rests on a state law ground that
is independent of the federal question and adequate to support the
judgment.'" (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991))). The respondent, however, makes not a peep about this
procedural shortcoming, treating the Holbrook argument as if it is
properly preserved. And because we may straightforwardly reject
Scoggins's petition on the merits without reference to the state
court's reliance on this ground, as that reliance implicates no
question concerning our jurisdiction, we need not consider here an
argument that the state neglected to raise and to which, as a
consequence, Scoggins has had no chance to respond.
Turning to the merits of the argument, we skip over the
perhaps puzzling question of why defense counsel did not at least
telephone Holbrook to see what she might offer to say. We turn,
instead, to the easier question of whether such a call would have
made any difference. The record does contain a document signed by
Holbrook claiming that, had counsel contacted her, she would have
readily informed him that she heard nothing from Scoggins about the
case. In denying Scoggins's second motion for a new trial, the
Massachusetts Superior Court found this affidavit not credible.
The affidavit flatly contradicted both Holbrook's volunteered
statements to the police and her testimony at trial, and it offered
no explanation for how she could have made up the portions of her
testimony in which she recounted subtle details of the crime.
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Thus, we simply see nothing in the record that would permit us to
determine that the state court was demonstrably wrong to conclude
that, of the inconsistent statements Holbrook has given, the one
she gave at trial was the truthful one. In light of our deference
to the state court's conclusion, Scoggins's assertion that failing
to interview Holbrook resulted in prejudice lacks the type of
record support that would compel a reasonable jurist to agree. For
this reason alone, and even accepting for argument's sake that
trial counsel should have at least spoken to Holbrook, the
Strickland claim fails. See, e.g., United States v. Valerio, 676
F.3d 237, 246 (1st Cir. 2012) (reiterating that Strickland claims
require a showing both that (1) counsel's performance was
deficient, and (2) that the deficient performance prejudiced the
defense).
IV. Conclusion
For the aforementioned reasons, we affirm the district
court's denial of Scoggins's petition for habeas corpus relief. So
ordered.
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