William Armstrong v. Mike Kemna ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1424
___________
William A. Armstrong, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mike Kemna, *
*
Appellee. *
___________
Submitted: January 10, 2007
Filed: July 24, 2008
___________
Before RILEY, HANSEN, and SMITH, Circuit Judges.
___________
RILEY, Circuit Judge.
This matter is before our court for the second time. Following William
Armstrong’s (Armstrong) unsuccessful attempts to obtain relief in the Missouri state
courts from his convictions for first degree murder, first degree assault, and armed
criminal action, Armstrong applied for a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court denied Armstrong’s application. On appeal, we affirmed
in part, but remanded to the district court for the limited purpose of considering two
ineffective assistance of counsel claims. See Armstrong v. Kemna (Armstrong I), 365
F.3d 622, 630-31 (8th Cir. 2004). On remand, the district court again denied habeas
relief. We now reverse.
I. BACKGROUND
This case originated from the events surrounding a nightclub altercation on
January 6, 1996. On that date, Armstrong and a few companions, including his
brother Solomon Armstrong (Solomon), his foster brother Antwon Hamilton
(Hamilton), and his friend Charles Brown (Brown), had traveled together from their
homes in Milwaukee, Wisconsin, to Hayti Heights, Missouri. Later that evening, the
group went to a nightclub, where an argument erupted between Terrell McGee and
Diane Davis. The argument escalated to involve many other nightclub patrons,
including McGee family members, Davis family members, and Armstrong. The
nightclub owner ordered everyone involved in the argument outside, and the argument
continued in the parking lot. During the melee, several gunshots were fired, killing
Carlos McGee, and wounding Yolanda Childress and Devonne Davis.
Armstrong was charged with and tried for one count of first degree murder, two
counts of first degree assault, and three counts of armed criminal action. Solomon,
Hamilton, and Brown (collectively, the out-of-state witnesses) returned to Milwaukee
and did not travel back to Missouri to testify at Armstrong’s trial. It is the absence of
the out-of-state witnesses from Armstrong’s trial and the actions of Armstrong’s trial
counsel, a Missouri state public defender, that lie at the heart of this second habeas
appeal.
At Armstrong’s trial, the state presented testimony from nineteen witnesses.
Recognizing the importance of the testimonies of the out-of-state witnesses to
Armstrong’s defense, trial counsel attempted to secure their attendance at trial. One
option for doing so existed under the Uniform Act to Secure the Attendance of
Witnesses From Without a State in Criminal Proceedings (Uniform Act), which
Missouri adopted and enacted in 1959. See Mo. Rev. Stat. § 491.420 (describing
procedure for summoning a witness from another state to testify in Missouri). Under
subsection 491.420(1),
-2-
If a person in any state, which by its laws has made provision for
commanding persons within its borders to attend and testify in criminal
prosecutions . . . in this state, is a material witness in a prosecution
pending in a court of record in this state, . . . a judge of such court may
issue a certificate . . . stating these facts and specifying the number of
days the witness will be required. The certificate may include a
recommendation that the witness be taken into immediate custody and
delivered to an officer of this state to assure his attendance in this state.
Also under Missouri’s Uniform Act, the term “summons” includes “a subpoena, order
or other notice requiring the appearance of a witness.” Id. § 491.400(2).
Because the Uniform Act is reciprocal and operative only in those states that
have adopted it or similar legislation for compelling witnesses to travel to and testify
in other states, see New York v. O’Neill, 359 U.S. 1, 4 (1959), trial counsel contacted
Wisconsin authorities1 to determine whether Wisconsin participated in the Uniform
Act and how she could subpoena the out-of-state witnesses to testify at Armstrong’s
trial. Trial counsel inquired whether Wisconsin was “part of the interstate compact”
concerning subpoenaing out-of-state witnesses. During a pretrial hearing on July 23,
1996, approximately one month before trial, trial counsel informed the trial court she
had contacted the Milwaukee County Sheriff’s Department (Sheriff’s Department) and
determined Wisconsin was “not part of the Interstate Compact for Subpoenaing
Witnesses.” Trial counsel attempted to communicate to the trial court her
understanding regarding the procedure for subpoenaing the out-of-state witnesses,
stating the public defender’s office would have to pay a witness fee and mileage to the
court in the county in which the witnesses were located, upon which a subpoena
1
The record contains conflicting information regarding whether trial counsel
contacted the Wisconsin Attorney General’s Office, the Milwaukee County
(Wisconsin) Sheriff’s Department, or both, to inquire about Wisconsin’s participation
in the Uniform Act. The term “Wisconsin authorities” in this opinion shall refer to
both entities, unless specifically noted otherwise.
-3-
would be issued.2 Despite the fact the Sheriff’s Department characterized the order
as a “subpoena,” trial counsel personally believed the subpoena was more akin to and
“sounded more like a summons . . . since [Wisconsin was] not part of the interstate
compact.” Trial counsel then moved for an order allowing Armstrong to proceed in
forma pauperis so the public defender’s office could avoid a charge from the Sheriff’s
Department for delivery of the subpoena. The trial court entered this order on July 29,
1996.
Contrary to trial counsel’s mistaken belief, Wisconsin had adopted and enacted
the Uniform Act in 1970. See Wis. Stat. § 976.02 (entitled “Uniform act for the
extradition of witnesses in criminal actions”). Subsection 976.02(2), which describes
the procedure for summoning witnesses from Wisconsin to testify in another state,
provides that if a judge from a state recognizing the Uniform Act certifies a person
within Wisconsin is a material and necessary witness in a criminal prosecution, and
such certification is presented to a Wisconsin court in the county in which the person
is located, the Wisconsin court shall issue a summons directing the witness to testify
in the other state’s prosecution. Id. § 976.02(2)(a), (b). Like Missouri’s Uniform Act,
the term “summons” as used in Wisconsin’s statutory provision “includes a subpoena
order or other notice requiring the appearance of a witness.” Id. § 976.02(1).
Notwithstanding trial counsel’s earlier representation to the trial court regarding
her intent to subpoena the out-of-state witnesses, trial counsel thereafter spoke with
her supervisor, and they decided it would be best either to provide the out-of-state
witnesses bus tickets to Missouri or to allow them to travel to Missouri themselves
and be reimbursed. Trial counsel decided against subpoenaing the out-of-state
witnesses because she (mistakenly) believed such subpoenas would be unenforceable.
2
The state concedes Wisconsin authorities correctly informed trial counsel of
the proper procedure under Wisconsin’s version of the Uniform Act for subpoenaing
witnesses from Wisconsin to testify in another state, and further concedes the record
indicates trial counsel was aware of this procedure.
-4-
As Armstrong’s trial date approached, however, the option to provide bus tickets
never materialized because trial counsel’s attempts to communicate with the out-of-
state witnesses were unsuccessful and, in trial counsel’s words, because the out-of-
state witnesses “never actually requested that [the public defender’s office] make the
bus arrangements, so [trial counsel] didn’t do that.” Approximately one week before
trial, trial counsel arranged a conference call to discuss travel arrangements with
Solomon and Hamilton. Both Solomon and Hamilton lived with Armstrong’s mother.
When Armstrong’s mother answered the call, she informed trial counsel Solomon was
asleep and Hamilton was not home. With regard to Brown, trial counsel’s investigator
spoke with Brown about six or seven months before trial, but subsequent attempts to
contact Brown were unsuccessful.
On the night of August 22, 1996, following the first day of Armstrong’s two-
day trial, Solomon called trial counsel and stated he would travel by bus to Missouri
that night to testify at his brother’s trial the next day. Based on Solomon’s statements,
trial counsel believed Solomon would purchase his own bus ticket and accept
reimbursement later. Trial counsel asked Solomon to call her office upon his arrival
in Missouri. However, Solomon never contacted trial counsel or showed up at
Armstrong’s trial.
Thus, on August 23, 1996, the second and final day of Armstrong’s trial, trial
counsel orally moved for a continuance to allow the out-of-state witnesses time to
travel to Missouri to testify. Armstrong interrupted and told the trial court the out-of-
state witnesses were absent because trial counsel failed to subpoena them and also
failed to clarify whether the state would pay for their costs of traveling to Missouri.
According to Armstrong, the out-of-state witnesses lacked sufficient funds to travel
to Missouri. Armstrong explained to the court, “I tried to use my power to subpoena,
but [trial counsel] never sent them subpoenas.” The trial court inquired whether
Wisconsin was “part of our Interstate Compact as far as . . . acquiring attendance for
out-of-state witnesses.” Trial counsel responded, “No. I called the attorney general’s
-5-
office and they said no.” Trial counsel further stated the out-of-state witnesses
previously had indicated they would be present at Armstrong’s trial, but later failed
to make themselves available for phone conferences with her. Armstrong reiterated
his previous argument regarding trial counsel’s actions and omissions, including the
failure to subpoena the witnesses. The trial court rejected Armstrong’s argument,
relying, in part, on trial counsel’s understanding that “Wisconsin was not a part of this
Interstate Compact agreement,” and noting Armstrong had been aware of his trial date
for over two months and “had ample opportunity” to request his family testify at trial.
Thus, the trial court denied the motion for a continuance.
Thereafter, the case was submitted, and the jury convicted Armstrong on all
counts. Armstrong was sentenced to life imprisonment without parole on the murder
count and to 60 years imprisonment on the remaining counts.
After an unsuccessful direct appeal and a motion for post-conviction relief,
Armstrong filed an application for a writ of habeas corpus under 28 U.S.C. § 2254.
Following an evidentiary hearing at which the district court heard testimony from both
trial counsel and Armstrong, the district court denied habeas relief. On appeal, we
affirmed in part, but remanded the case to the district court to consider whether, in
light of the fact Wisconsin had adopted the Uniform Act, trial counsel’s failure to
secure the attendance of the out-of-state witnesses or to obtain a continuance
constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984). See Armstrong I, 365 F.3d at 630-31.3
On remand, the district court again denied Armstrong’s application for habeas
relief. The district court found trial counsel took reasonable steps to discern whether
3
In Armstrong I, we noted the record was void of any reference to either
Missouri’s or Wisconsin’s version of the Uniform Act, despite those two statutes
being “critical to disposing of Armstrong’s ineffective assistance claims.”
Armstrong I, 365 F.3d at 628.
-6-
Wisconsin had adopted the Uniform Act and was justified in relying on information
from the Wisconsin authorities that Wisconsin did not participate in the Uniform Act.
Thus, trial counsel’s decision not to issue what she believed would be an
unenforceable subpoena fell “within the wide range of professionally competent
assistance sanctioned by Strickland.” Additionally, the district court held trial counsel
took reasonable steps to attempt to secure the out-of-state witnesses’ attendance and
was not required to forward bus tickets unilaterally without ever having discussed
specific travel arrangements with the witnesses. With regard to the continuance issue,
the district court found Armstrong failed to demonstrate prejudice as required under
Strickland. This appeal followed.
II. DISCUSSION
A. Standard of Review
As we noted in Armstrong I, although the Missouri state courts did not review
Armstrong’s ineffective assistance claims on the ground that Armstrong filed his state
post-conviction relief motion late, the district court found cause to avoid procedural
default on the claims.4 Armstrong I, 365 F.3d at 627 n.2. Because there is no state
court adjudication of these issues, we need not apply the deferential standard of
review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214. See Reagan v. Norris, 365 F.3d 616, 621 (8th
Cir. 2004). Instead, we review the district court’s factual findings for clear error and
its legal conclusions de novo. Id.4
Citing the Supreme Court’s decision in Day v. McDonough, 547 U.S. 198(2006), the state urges this court for the first time in these habeas proceedings to
consider, sua sponte, whether Armstrong’s habeas application is untimely. Because
a statute of limitations defense “is not ‘jurisdictional,’” we “are permitted, but not
obligated, to consider” the timeliness of Armstrong’s application. Id. at 205, 209(citations omitted). We decline the state’s invitation to do so, given our conclusion
“‘the interests of justice would be better served’ by addressing the merits” of the
habeas application before us. See id. at 210 (quoting Granberry v. Greer, 481 U.S.
129, 136 (1987)).
-7-
B. Ineffective Assistance of Counsel
To succeed on a Sixth Amendment ineffective assistance of counsel claim,
Armstrong must demonstrate (1) trial counsel’s performance was so deficient as to fall
below an objective standard of the customary skill and diligence displayed by a
reasonably competent attorney, and (2) trial counsel’s deficient performance
prejudiced the defense. See Strickland, 466 U.S. at 687-94. “Judicial scrutiny of
counsel’s performance is highly deferential, indulging a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional judgment.”
Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006) (quoting Bucklew v. Luebbers,
436 F.3d 1010, 1016 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 689)), cert.
denied, 127 S. Ct. 980 (2007). To avoid second-guessing trial counsel’s assistance in
the face of a guilty verdict, we make every effort “to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.” Bell v. Cone, 535
U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689).
1. Trial Counsel’s Performance
We first address trial counsel’s failure to secure the attendance of the out-of-
state witnesses in light of the Uniform Act. The district court found—and we
agree—trial counsel evidenced her familiarity with Missouri’s participation in the
Uniform Act when she contacted Wisconsin authorities. We take issue, however, with
the district court’s determination that trial counsel took reasonable steps to investigate
Wisconsin’s participation in the Uniform Act. When conversing with Wisconsin
authorities, trial counsel used unclear or imprecise (and perhaps even incorrect)
terminology by inquiring whether Wisconsin was “part of the interstate compact” for
subpoenaing out-of-state witnesses. Thus, it should come as no surprise Wisconsin
authorities did not recognize the law to which trial counsel referred and denied
Wisconsin’s participation. Notwithstanding trial counsel’s misstatement, the record
indicates—and the state of Missouri concedes—Wisconsin authorities correctly
informed trial counsel of the proper procedure under Wisconsin’s version of the
-8-
Uniform Act for subpoenaing witnesses from Wisconsin to testify in another state.
In our view, this information, which mirrored the procedure for subpoenaing
witnesses under Missouri’s Uniform Act, should have alerted trial counsel of
Wisconsin’s adoption of the Uniform Act, and of her ability effectively to subpoena
the out-of-state witnesses. At the very least, trial counsel had a duty to investigate the
law further in the face of unclear information, rather than relying solely upon the
statements of Wisconsin authorities.
The district court found that, despite trial counsel’s repeated references to the
“interstate compact” in describing her conversation with Wisconsin authorities, trial
counsel in fact meant to refer to the Uniform Act, noting trial counsel’s specific
reference to the Uniform Act in the motion for a new trial filed on Armstrong’s behalf.
Thus, the district court concluded “trial counsel was justified in believing the
Wisconsin State Attorney General’s Office . . . when it informed her Wisconsin did
not participate in the Uniform Act.” (emphasis added). We disagree. The record does
not support such an interpretation of trial counsel’s communications with Wisconsin
authorities. A review of trial counsel’s colloquies with the trial court and her
testimony during the district court’s evidentiary hearing in these habeas proceedings
indicates trial counsel repeatedly referred to the “interstate compact,” rather than
referencing the Uniform Act itself. The district court’s finding wholly ignores the
relevance of trial counsel’s misstatement when inquiring about Wisconsin’s
participation in the “interstate compact,” her familiarity with Missouri’s adoption of
the Uniform Act, and her awareness of Wisconsin’s subpoena procedure. The court’s
finding borders on illogical circularity to deem trial counsel’s belief reasonable when
it was trial counsel’s misstatement which led Wisconsin authorities to deny
participation in the “interstate compact.” The reasonableness of trial counsel’s
conduct is further challenged by the fact that, despite trial counsel’s misstatement,
Wisconsin authorities nevertheless correctly informed trial counsel how to subpoena
witnesses from Wisconsin by using a process substantially similar to Missouri’s
subpoena process under the Uniform Act.
-9-
Indeed, the sole basis for trial counsel’s belief she could not effectively
subpoena the out-of-state witnesses, and that any subpoena would be unenforceable,
appears to have arisen solely from her inexplicable belief that Wisconsin was “not part
of the interstate compact.” Armstrong’s cross-examination of trial counsel during the
district court’s evidentiary hearing is illustrative of trial counsel’s confusion on this
point:
[Armstrong:] Okay. So is it a subpoena or is it a summons?
[Trial counsel:] [Wisconsin authorities] call it a subpoena, but it
sounded more like a summons to me since
[Wisconsin was] not part of the interstate
compact.
[Armstrong:] Well, wouldn’t a subpoena be a summons? A
subpoena is a summons for you to appear
somewhere.
[Trial counsel:] It’s my understanding that a subpoena has—is
enforceable. If a person does not show up, then
the judge can issue a warrant and that person can
be arrested. It’s my understanding that the
summons does not have that power behind it.
[Armstrong:] Well, couldn’t the Court do the same? If the
Court in Milwaukee, Wisconsin, issued a
summons for the witnesses, wouldn’t they be
authorized—if the witnesses didn’t show up . . .
wouldn’t they have the authority to arrest those
witnesses?
[Trial counsel:] It’s my understanding, since [Wisconsin was] not
part of the interstate compact, no, they would not
do that.
This exchange further emphasizes trial counsel’s mistaken logic, for even assuming
trial counsel could have reasonably believed the subpoena “sounded more like a
summons” and thus would be unenforceable, a cursory review of Missouri’s Uniform
Act and the Wisconsin Uniform Act would have revealed the term “summons”
-10-
includes “a subpoena, order or other notice requiring the appearance of a witness.”
See Mo. Rev. Stat. § 491.400(2); see also Wis. Stat. § 976.02(1).
As the Supreme Court noted in Strickland, “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. On the other hand, strategic choices
“resulting from lack of diligence in preparation and investigation [are] not protected
by the presumption in favor of counsel.” Kenley v. Armontrout, 937 F.2d 1298, 1304
(8th Cir. 1991); see also Wiggins v. Smith, 539 U.S. 510, 527 (2003) (“Strickland
does not establish that a cursory investigation automatically justifies a tactical decision
. . . . Rather, a reviewing court must consider the reasonableness of the investigation
said to support that strategy.” (citing Strickland, 466 U.S. at 691)). Evaluating the
reasonableness of trial counsel’s conduct from her perspective before and during the
trial, we cannot say trial counsel satisfied her duty to investigate thoroughly and
diligently the law relevant to subpoenaing the out-of-state witnesses. Given trial
counsel’s familiarity with Missouri’s own participation in the Uniform Act, her
awareness of Wisconsin’s subpoena procedure under the Uniform Act, and the
importance of securing the out-of-state witnesses’ attendance at trial, we believe a
reasonably competent attorney would have investigated and researched the law further
to determine her authority—and, in this case, her certain ability—to subpoena the out-
of-state witnesses.
Operating under the mistaken assumption regarding the enforceability of any
potential subpoenas, trial counsel believed she had only two options to get the out-of-
state witnesses to attend Armstrong’s trial: (1) issue subpoenas, which trial counsel
believed would be unenforceable in the event the out-of-state witnesses failed to
attend trial; or (2) allow the out-of-state witnesses to travel to Missouri on their own
initiative and either provide bus tickets to them in advance or reimburse their travel
expenses later. Trial counsel admitted she was skeptical the witnesses would attend
Armstrong’s trial “since they wouldn’t make themselves available for phone calls.”
-11-
Furthermore, Armstrong told trial counsel on several occasions the out-of-state
witnesses lacked sufficient funds to travel to Missouri. Thus, whether or not trial
counsel personally believed the subpoenas would be unenforceable if the witnesses
failed to attend Armstrong’s trial, we find it difficult to understand the logic of trial
counsel’s decision to forego even attempting to subpoena the witnesses, particularly
when Armstrong’s trial date drew near, when trial counsel was unsuccessful in her
attempts to contact the witnesses to make alternative arrangements, and when the
witnesses lacked funds to travel at their own expense. See Garton v. Swenson, 417
F. Supp. 697, 702 (W.D. Mo. 1976) (“The notion that a witness could and would
travel at his own expense rather than at the State’s is untenable on its face, to say
nothing of the risk involved in failing to have an important witness under subpoena.”).
In defending the reasonableness of trial counsel’s conduct, the state characterizes the
out-of-state witnesses as uncooperative and unmotivated to travel to Missouri, yet
such characterizations only further emphasize the importance of (1) trial counsel’s
need to determine whether she could subpoena the witnesses and compel them to
attend Armstrong’s trial, and (2) subpoenas to compel attendance. Furthermore, as
we indicated in Armstrong I, “[r]egardless of the amount or lack of assistance
provided to trial counsel by Armstrong and his witnesses, the proper focus is on trial
counsel’s performance.” Armstrong I, 365 F.3d at 628 n.3.
We agree with the district court that trial counsel was not required to
unilaterally forward bus tickets to the out-of-state witnesses without having discussed
specific travel arrangements with them. However, it is difficult to separate or
uncouple trial counsel’s later course of conduct from her initial decision not to
subpoena the out-of-state witnesses when that decision was based on trial counsel’s
inadequate and incomplete investigation of the applicable law. “Counsel need not
attain perfection, but he [or she] must exercise reasonable diligence.” Laws v.
Armontrout, 863 F.2d 1377, 1386 (8th Cir. 1988) (en banc) (quotation omitted). Trial
counsel did not exercise reasonable diligence; thus, Armstrong satisfied the first prong
of Strickland.
-12-
2. Prejudice to Armstrong’s Defense
Having concluded Armstrong has satisfied the first prong of Strickland, we now
consider whether trial counsel’s deficient performance prejudiced Armstrong’s
defense. To demonstrate Strickland prejudice, Armstrong “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.” 466 U.S. at 694. To conduct this
analysis, we are required to add the expected testimony of the three out-of-state
witnesses to the totality of evidence that was actually presented at trial. See
McCauley-Bey v. Delo, 97 F.3d 1104, 1105-06 (8th Cir. 1996), cert. denied, 520 U.S.
1178 (1997).
In our previous opinion, we remanded to the district court for reconsideration
of Armstrong’s ineffective assistance of counsel claims. In doing so, we directed the
district court to “address both prongs of the Strickland analysis, providing the court’s
findings of fact and conclusions of law.” Armstrong I, 365 F.3d at 628 (emphasis
added). Despite our clear instruction, the district court concluded Armstrong’s trial
counsel was not ineffective under the first prong of Strickland and failed to address
the Strickland prejudice prong. The district court cursorily concluded Armstrong
demonstrated no prejudice on account of his trial counsel’s failure to secure a
continuance, but the court engaged in no analysis of whether there is a reasonable
probability the result of Armstrong’s trial would have been different had his trial
counsel properly secured the testimony of the out-of-state witnesses. Because the
district court failed to follow our instruction to address both prongs of the Strickland
analysis, we are now faced with addressing the prejudice inquiry for the first time in
these proceedings. For the reasons described below, we conclude the existing record
is inadequate for this purpose, in part, because Armstrong has not been given an
adequate opportunity to present competent evidence of the out-of-state witnesses’
expected testimony. We reverse and remand for further development of the record
-13-
and so that the district court may conduct the Strickland prejudice analysis in the first
instance. See, e.g., Briggs v. Pa. R. Co., 334 U.S. 304, 306 (1948) (observing that the
Supreme Court has “consistently held that an inferior court has no power or authority
to deviate from the mandate issued by an appellate court” (citations omitted)); United
States v. Montgomery, 462 F.3d 1067, 1072 (9th Cir. 2006) (“Failure to follow this
court’s instructions on remand is grounds for the case to be re-remanded for
compliance with our instructions.” (citations omitted)); see also Burns v. Gammon,
173 F.3d 1089, 1094 (8th Cir. 1999) (remanding and declining to address in the first
instance whether the § 2254 petitioner demonstrated deficient performance and
prejudice under Strickland).
As it stands, the record fails to disclose, with any degree of reliability, just what
testimony the absent witnesses would have given at Armstrong’s trial, a deficiency
that has plagued this case from the start. See Armstrong I, 365 F.3d at 625, 628 n.3
(noting the state trial court “was not provided the absent witnesses’ expected
testimony” when it denied Armstrong’s midtrial request for a continuance to secure
their attendance). Because Armstrong’s motion for state postconviction relief was
untimely, no motion hearing was held. And none of the absent witnesses testified at
the § 2254 hearing.
Instead, the existing record’s limited disclosure of the expected content of the
three absent witnesses’ testimony is derived from two sources: Armstrong’s
representations in his § 2254 application and his trial counsel’s testimony at the
district court’s habeas hearing held six years after the shooting. As our prior opinion
notes, Armstrong alleged the following in his federal habeas application: “[W]itnesses
would have testified that I did not have a weapon, nor was I arguing with anybody,
and that someone else from the McGee family were [sic] shooting at us. Someone
who they were arguing with in the club.” Id. at 625. No bases for those allegations
(except that they match Armstrong's own trial testimony) are set out in the application.
-14-
At the initial federal habeas hearing, Armstrong’s trial counsel testified the only
witness she was certain she spoke with before the trial was Solomon. She also
testified her investigator had talked to all three of the witnesses by telephone on at
least one, and maybe two, occasions. According to counsel, Brown told the
investigator (1) he observed an argument in the bar between a male and a female, (2)
someone from his group interceded, (3) he heard the shots as he exited the club, and
(4) he never saw Armstrong with a gun. Counsel also testified that, based on
conversations she had with her investigator, she believed Hamilton and Solomon
would have given similar testimony, including testimony Armstrong “did not have a
gun . . . [and] did not shoot [the victims].” Counsel specifically testified she did not
know and did not remember whether either witness would have testified to having
seen the shooting take place.
Absent from this record is so much as a signed statement, let alone an affidavit
or a sworn evidentiary deposition, from any of the three absent witnesses (one of
whom is Armstrong’s brother) indicating what their actual testimony would have been
at the original trial. Instead, we have only raw, untested hearsay, most of which is
twice removed (the declarant witnesses told the investigator who told trial counsel
who testified at the § 2254 hearing to the content of the secondhand, out-of-court
statements). Even though this hearsay testimony drew no objections during the
hearing—in fact, the State or the district court elicited the majority of the hearsay
testimony—we do not think that fact gives us license to disregard wholly the
diminished probative value of this evidence. The Federal Rules of Evidence do apply
to § 2254 proceedings. See Fed. R. Evid. 1101(e).
“Ordinarily, a defendant’s failure to present some evidence from the uncalled
witness regarding that witness’s potential testimony . . . would be fatal to an
ineffective assistance of counsel claim.” Harrison v. Quarterman, 496 F.3d 419, 428
(5th Cir. 2007) (citations omitted). Because of the inherently abstract nature of our
Strickland prejudice inquiry in the uncalled-witness context, see Evans v. Cockrell,
-15-
285 F.3d 370, 377 (5th Cir. 2002) (“[C]omplaints of uncalled witnesses are not
favored . . . because allegations of what the witness would have testified are largely
speculative.” (citation omitted)), federal appellate courts generally insist on a more
precise and more reliable showing of the uncalled witnesses’ expected testimony than
the showing made in the existing record. See Lawrence v. Armontrout, 900 F.2d 127,
130 (8th Cir. 1990) (“[I]f potential trial witnesses are not called to testify at a
postconviction review hearing, the petitioner ordinarily should explain their absence
and demonstrate, with some precision, the content of the testimony they would have
given at trial.” (citation and internal quotation marks omitted)); see also Rolan v.
Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (observing that, in this context, a showing
of Strickland prejudice “must be made based on the potential witness’s testimony to
the habeas court.”(citation omitted)); United States ex rel. Partee v. Lane, 926 F.2d
694, 701 (7th Cir. 1991) (“[A] habeas court cannot even begin to apply Strickland’s
standards to . . . a [missing witness] claim unless and until the petitioner makes a
specific, affirmative showing as to what the missing evidence or testimony would
have been. Without such a showing, it is . . . nearly impossible to determine whether
the petitioner was prejudiced by any deficiencies in counsel’s performance.” (citation
and internal quotation marks omitted)).
But we conclude Armstrong should not be required to rest his appeal on the
basis of the existing record because Armstrong, who was without counsel at the
§ 2254 hearing,5 was not given an adequate opportunity to develop the record with
respect to the out-of-state witnesses’ expected testimony. At the first evidentiary
5
It is unclear to us why Armstrong did not receive counsel for the first
evidentiary hearing. “The interests of justice require the court to appoint counsel
when the district court conducts an evidentiary hearing on the petition.” Hoggard v.
Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (citations omitted); see Rule 8(c), Rules
Governing Section 2254 Cases in the United States District Courts (“If an evidentiary
hearing is warranted, the judge must appoint an attorney to represent a petitioner who
qualifies to have counsel appointed under 18 U.S.C. § 3006A.” (emphasis added)).
-16-
hearing, the district court focused primarily on the first Strickland prong and
dismissed Armstrong’s argument that if he had legal counsel he “could have been
prepared by having [his] brothers . . . personally testif[y] . . . before the Court.” The
district court replied, “the issue here is not having them testify in front of me . . . it
would not have helped at all to have . . . your friends, brother, and your mother here.”
On remand, the district court declined to hold a second evidentiary hearing and,
contrary to our express instructions, again primarily confined its analysis to the first
prong of Strickland. Thus, Armstrong had little opportunity to improve the state of
the record following our remand. In the proceedings following this second remand,
Armstrong should have an adequate opportunity to present further evidence of what
the three out-of-state witnesses would have testified to had they been properly secured
to testify at Armstrong’s trial.
III. CONCLUSION
The district court’s judgment denying Armstrong’s § 2254 application is
reversed. The case is once again remanded to the district court to provide Armstrong
with a fair opportunity to develop the record concerning the actual content of the
absent witnesses’ testimony, and for the district court to conduct an analysis of
whether Armstrong has demonstrated prejudice under Strickland.
______________________________
-17-