William Armstrong v. Mike Kemna ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2495
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William A. Armstrong, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Mike Kemna, *
*
Appellant. *
__________
Submitted: September 22, 2009
Filed: January 5, 2010
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Before RILEY, HANSEN, and SMITH, Circuit Judges.
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RILEY, Circuit Judge.
This case is before us for the third time. After William A. Armstrong
(Armstrong) was convicted in Missouri state court of first-degree murder and various
other charges, Armstrong filed an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The district court denied Armstrong’s application, and this court
remanded for the district court to consider Armstrong’s claims of ineffective
assistance of counsel. See Armstrong v. Kemna, 365 F.3d 622, 630 (8th Cir. 2004)
(Armstrong I). The district court found Armstrong’s counsel acted reasonably and
again denied Armstrong’s application. On appeal, this court found Armstrong’s
counsel did not exercise reasonable diligence and remanded for the district court to
determine whether counsel’s errors prejudiced Armstrong. See Armstrong v. Kemna,
534 F.3d 857, 866, 868 (8th Cir. 2008) (Armstrong II). On remand, the district court
found Armstrong was prejudiced and granted Armstrong’s application for habeas
relief. The government appeals the district court’s finding of prejudice. We reverse
and deny the writ.
I. BACKGROUND
At approximately 11:00 p.m., on January 5, 1996, Armstrong and his
companions—Armstrong’s biological brother, Solomon Armstrong (Solomon);
Armstrong’s foster brother, Antwon Hamilton (Antwon); Antwon’s biological brother,
Tyreese Hamilton (Tyreese); and Armstrong’s friend, Charles Brown
(Brown)—decided to drive from Milwaukee, Wisconsin, to Hayti Heights, Missouri,
to visit Antwon’s and Tyreese’s biological family. The group arrived in Hayti Heights
on January 6, 1996, at approximately 6:30 or 7:00 a.m., and drove to 108 North
Martin Luther King Drive. Armstrong later learned it was the residence of Channelle
Davis (Channelle), Antwon’s and Tyreese’s cousin.
That evening, several people came to Channelle’s residence, and the group
eventually decided to go to C.J.’s, a local nightclub. While the group was at C.J.’s,
an argument erupted between Diane Davis (Diane)1 and Terrell McGee (Terrell), who
were dating. The argument became heated, and several people witnessed Terrell slap,
push, or grab Diane. Tyreese joined in the argument to defend his cousin, Diane,
which prompted Terrell’s brother, Carlos McGee (Carlos), to join in the argument to
protect Terrell. As the argument escalated, other friends and family members of the
Davises, including the Hamiltons and the Armstrongs, became involved in the
altercation with the McGees. The bar owner, Charles Jones (Jones), pulled out a
handgun and ordered everyone out of the bar. Those involved in the argument left the
1
Most of the Davises referenced in this opinion are siblings. Diane is the sister
of Channelle, Levonne, J., Devonne, and T. Davis. Each of the Davis siblings are
cousins of Antwon and Tyreese, and several of them were also friends with
Armstrong.
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bar and resumed the argument in the parking lot. During the melee, several gunshots
were fired, killing Carlos, and wounding Devonne Davis (Devonne) and Yolanda
Childress (Yolanda).2
After the shootings, Armstrong’s companions—Solomon, Antwon, Tyreese,
and Brown—returned to Milwaukee, Wisconsin, and did not return to Missouri for
Armstrong’s trial. A jury convicted Armstrong of first-degree murder, two counts of
first-degree assault, and three counts of armed criminal action.
Following an unsuccessful direct appeal and a motion for post-conviction relief
in the Missouri courts, Armstrong filed an application for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern
District of Missouri. Armstrong raised various grounds for relief, including a claim
that Armstrong’s trial counsel was ineffective in failing to secure the testimony of
Armstrong’s out-of-state witnesses. The district court held an evidentiary hearing on
February 14, 2002.
Before discussing the merits of Armstrong’s application, the district court
recognized Armstrong’s state post-conviction motion was filed five days late. As a
result, the claims in his habeas application were procedurally defaulted. The district
court determined that a state-employed prison librarian provided Armstrong with the
wrong deadline for filing his post-conviction motion; therefore, Armstrong
demonstrated cause to excuse his procedural default. However, the district court
concluded Armstrong’s “claim of ineffective assistance of counsel . . . is without
merit, and, therefore, he cannot demonstrate prejudice arising from his procedural
default of the issue.”
2
Yolanda is a cousin of Carlos and Terrell.
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Armstrong appealed, and this court remanded “for the limited purpose of
considering whether trial counsel’s failure to secure the attendance of the out-of-state
witnesses or a continuance in light of the Uniform Act [To Secure the Attendance of
Witnesses From Without the State in Criminal Proceedings] constituted ineffective
assistance of counsel under Strickland.”3 Armstrong I, 365 F.3d at 630. On remand,
the district court again denied Armstrong’s application for habeas relief. The district
court concluded Armstrong’s “trial counsel took reasonable steps to secure” the
testimony of Armstrong’s out-of-state witnesses, and counsel’s actions “were
sufficient to satisfy her burden under Strickland.” With regard to the continuance
issue, the district court found Armstrong failed to demonstrate sufficient prejudice as
required under Strickland.
On appeal, this court concluded Armstrong’s trial counsel did not exercise
reasonable diligence and failed to take sufficient measures to secure the attendance of
out-of-state witnesses. See Armstrong II, 534 F.3d at 865-66. Thus, we found
Armstrong satisfied the first Strickland prong, which requires defendants to show trial
counsel’s performance fell below an objective standard of reasonableness. See id. at
866; Strickland v. Washington, 466 U.S. 668, 688-91 (1984). Because the record did
not contain sufficient evidence to determine whether Armstrong was prejudiced by the
absence of the out-of-state witnesses at trial, this court “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.”
Armstrong II, 534 F.3d at 868.
On January 20, 2009, the district court held a second evidentiary hearing. Four
witnesses testified at the hearing, including (1) Armstrong; (2) Armstrong’s biological
brother, Solomon; (3) Armstrong’s foster brother, Antwon; and (4) Erik Thomas
3
Strickland v. Washington, 466 U.S. 668 (1984).
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(Thomas), a witness for the government. After the hearing, the district court
concluded Armstrong was prejudiced by the absence of Solomon and Antwon from
Armstrong’s trial; therefore, Armstrong satisfied the second Strickland prong. The
district court granted Armstrong’s application for habeas relief. The government
appeals claiming (1) the district court erred in finding Strickland prejudice; and
(2) even if Armstrong were prejudiced under Strickland, Armstrong has not shown he
was sufficiently prejudiced to overcome his procedural default.
II. DISCUSSION
A. Standard of Review
“When considering an appeal from the granting of habeas corpus relief on the
ground of ineffective assistance of counsel, this court may engage in its own
independent review of the district court’s conclusion, because the issue of ineffective
assistance of counsel presents a mixed question of law and fact.” Laws v.
Armontrout, 863 F.2d 1377, 1381 (8th Cir. 1988) (en banc) (citations omitted). “The
district court’s findings of fact, however, are reviewable under the clearly erroneous
standard.” Id. (citations omitted).
B. Strickland Prejudice
“To show prejudice [under Strickland], ‘[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.” McCauley-Bey v. Delo, 97 F.3d 1104,
1105 (8th Cir. 1996) (quoting Strickland, 466 U.S. at 694). “A reasonable probability
is one sufficient to undermine confidence in the outcome.” Id. (citation omitted).
“‘[I]n determining the existence vel non of prejudice, the court must consider the
totality of the evidence before the judge or jury.’” Id. (internal marks omitted)
(quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)). Thus, to conduct our
analysis, we should add the testimony of Armstrong’s uncalled witnesses to the body
of evidence actually presented at his trial. See id. at 1105-06. In doing so, we shall
consider: “(1) the credibility of all witnesses, including the likely impeachment of the
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uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual
defense witnesses called; and (3) the strength of the evidence actually presented by
the prosecution.” Id. at 1106.
1. State’s Trial Evidence
We begin our analysis by evaluating “the strength of the evidence actually
presented by the prosecution.” Id. At Armstrong’s trial, nineteen people testified for
the state. These nineteen witnesses essentially comprise four different groups:
(1) staff from C.J.’s nightclub, (2) relatives of the Davises, (3) friends and relatives
of the McGees, and (4) police and other investigators or medical personnel.
a. Nightclub Staff
Jones, the owner of C.J.’s nightclub, testified that on the night of January 6,
1996, he witnessed Diane and Terrell pushing and arguing with each other inside his
bar. Jones stated the situation began to escalate as other people became involved in
the argument, so Jones took a handgun from his pocket and ordered those involved to
leave the bar. Jones did not see anyone else with a gun, but stated Armstrong looked
like he might have a gun, based upon the way Armstrong put his hand in his right
pocket and “backed sideways outside the door.”
Charles Doby (Doby) was working as the doorman at C.J’s nightclub on
January 6, 1996. Doby testified Armstrong went to the back of the club and got a gun
from someone. When Armstrong was standing beside Doby, Armstrong pulled the
gun out of his pocket and raised it up, not aiming at anyone, and Armstrong made
some gang references. Doby told Armstrong to get out of the bar, Armstrong left the
bar, and sometime thereafter, Doby heard shots fired outside. Doby did not see
anyone else with a gun that night.
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b. The Davises4
Six Davis siblings testified at Armstrong’s trial. Levonne Davis (Levonne)
testified she met Armstrong before the date of the shooting when she went to visit her
cousins, Antwon and Tyreese, in Milwaukee. The other Davis siblings did not say
whether they knew Armstrong before the date of the shooting,5 but they all visited
with Armstrong on January 6, 1996, when he stayed at Channelle’s house. That
evening a group of people, including the Davises, the Hamiltons, the Armstrongs, and
Terrell, gathered at Channelle’s house. J. Davis (J.), who was sixteen, testified he saw
Armstrong with a gun on the table at Channelle’s house. J. also saw the gun in
Armstrong’s hand.
Later, the group decided to go to C.J.’s nightclub. Two trips were made to the
bar that night. The first trip consisted only of the Armstrongs, the Hamiltons, and
Brown. Armstrong testified that after about one hour at the bar, his brothers could not
drive because they had been drinking heavily so Armstrong returned to Channelle’s
house and picked up the others. Although there is some confusion about who was in
the vehicle during the second trip to the nightclub, most parties said Armstrong
returned to Channelle’s residence and drove Channelle, Devonne, Diane, Terrell, and
another young woman named Diane Vaughn, back to C.J.’s nightclub. Channelle
testified she was in the front passenger seat of Armstrong’s vehicle when she saw a
gun in the car Armstrong was driving. Channelle stated the radio had been removed
from the vehicle, and a gun, which was covered with wires, had been placed in the
radio compartment.
4
Diane, Channelle, Levonne, J., Devonne, and T. Davis testified. We need not
reference T.’s testimony as he was not present at the time of the shootings at issue in
this appeal.
5
Armstrong testified he previously met both Levonne and Devonne during their
visits to Milwaukee.
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Inside the nightclub, J., Diane, Devonne, and Channelle, each testified Diane
and Terrell became involved in an argument which began to escalate as more people
got involved. Some of the Hamiltons and the Armstrongs intervened in the dispute
on Diane’s behalf, while some of the McGees intervened on Terrell’s behalf. At that
point, Jones, the bar owner, displayed a handgun and ordered the group out of the bar.
Devonne testified she saw Armstrong with a gun while inside the bar. Channelle
testified Armstrong was yelling, “G.D.,” which stands for “Gangster Disciple.” Diane
also heard Armstrong yelling “G.D.,” but Diane did not know what it meant.
After Jones ordered everyone to leave the nightclub, Levonne, J., Devonne,
Channelle, and Diane each testified they went outside and stood in the parking lot.
Each testified the argument continued outside the nightclub and they saw Armstrong
with a gun. Devonne, Channelle, and Diane testified they did not see anyone else in
the parking lot with a gun. Levonne witnessed Armstrong shooting down toward the
ground at Carlos, who had fallen. Devonne stated she saw Armstrong shoot at Carlos,
saw Carlos fall to the ground, and observed Armstrong begin shooting down toward
the ground. Channelle witnessed Armstrong shoot at Carlos as Carlos tried to run
away, Channelle then saw Carlos get shot and fall to the ground. Diane also testified
Armstrong began shooting at Carlos and Carlos fell to the ground. J. said he saw
Armstrong shooting, but J. ducked and did not see who Armstrong was shooting
toward. Devonne related that as Armstrong was firing at Carlos, Armstrong also shot
Devonne and Yolanda.
Immediately after the shooting, Armstrong, Solomon, Antwon, Tyreese, and
Brown ran to Solomon’s car in an attempt to flee. Both Devonne and Levonne
testified Devonne, wounded, followed the men to Solomon’s car and got in the car.
When the men realized the car was stuck in mud, the men left the car and ran to
Channelle’s residence, leaving Devonne behind.
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Armstrong, Solomon, Antwon, and Tyreese were arrested soon after the
shooting and, with the exception of Armstrong, they were released the following day.
After their release, the men returned to Milwaukee. Devonne and J. also traveled to
Milwaukee after the shooting and J. testified he stayed for about one year.
c. Friends and Relatives of the McGees
Several friends and relatives of the McGees were at C.J.’s on the night of
January 6, 1996, including Terrell and Carlos, their mother Rosie McGee (Rosie),
Rosie’s live-in boyfriend, Steve Winters (Steve), and Steve’s cousin, Michael Winters
(Michael). Also present were Terrell’s and Carlos’s first cousins, Yolanda and Felicia
Moore (Felicia). Terrell, Rosie, Michael, Yolanda, and Felicia each testified at
Armstrong’s trial.
Terrell met Armstrong earlier that day at Channelle’s house. Terrell testified
he saw Armstrong with a gun at Channelle’s house and Armstrong stated he had the
gun so “when he go to the club, nobody trip with him.” Terrell also reported that on
the way to the bar, Terrell noticed the radio was missing from the car Armstrong was
driving, and there was a gun in the radio compartment.
Later that evening, after Terrell and Diane began to argue at the bar, Yolanda,
Michael, Felicia, and Terrell each described Armstrong becoming involved in the
argument, pulling a handgun, and “hollering G.D.” Rosie denied seeing Armstrong
with a gun inside the bar, but someone told her Armstrong had a gun. Jones drew his
gun and told the group to leave the bar. The argument resumed in the parking lot, and
Terrell, Rosie, Michael, Yolanda, and Felicia affirmed they saw Armstrong take out
a gun and begin to fire, resulting in Carlos’s death and wounding Devonne and
Yolanda. After the shooting, Armstrong and his group fled.
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d. Police, Investigators, and Medical Personnel6
Officer Durrell Hayes (Officer Hayes) and Deputy Sheriff Billy Woodall
(Deputy Woodall) went to 108 North Martin Luther King Drive to arrest Armstrong,
Solomon, Antwon, and Tyreese, for their suspected involvement in the shootings.
Officer Hayes and Deputy Woodall testified that during the arrest, shots were fired
from outside the house, hitting Officer Hayes in the chest. Emerson Branch, a relative
of the McGees, was later tried and convicted of shooting Officer Hayes.
Deputy Sheriff Len Welsh (Deputy Welsh) was also involved in the shooting
investigation and reported on the evidence collected during the investigation. Deputy
Welsh described how a .32 caliber bullet was removed from Officer Hayes, and a .32
caliber bullet was found on Carlos’s gurney.
Andy Wagoner (Wagoner) is a firearms and tool marks examiner at the
Southeast Missouri Regional Crime Laboratory. In addition to the .32 caliber bullet
found on Carlos’s gurney, Wagoner testified another .32 caliber bullet was removed
from Carlos during an autopsy. Wagoner testified the bullet on Carlos’s gurney and
the bullet removed from Carlos’s body were fired from the same gun. Wagoner
concluded the bullet removed from Officer Hayes was fired from a different gun than
the bullets identified with Carlos because Carlos’s two bullets had class characteristics
“that [were] six lands and grooves inclined to the left,” and the bullet taken from
Officer Hayes had class characteristics “that [were] five lands and grooves inclined
to the right.” No gun was ever recovered and the gunshot residue tests performed on
Armstrong, Solomon, Antwon, and Tyreese, proved inconclusive.
6
The state presented testimony from the coroner and from the doctor who
performed Carlos’s autopsy, but their testimony is not relevant for purposes of this
appeal.
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2. Actual Defense Witnesses and Uncalled Witnesses
a. Actual Defense Witnesses
The defense called three witnesses to testify at trial on Armstrong’s behalf.
First, the defense recalled Felicia who previously told a police officer she heard
Armstrong’s gun make a clicking sound. Armstrong’s defense counsel may have been
attempting to show Armstrong’s gun was not the same type of gun as the gun used to
shoot the three victims at C.J.’s nightclub.
The second witness, Tonya Williamson (Tonya), Jones’s niece, saw part of the
argument between Diane and Terrell. Tonya also explained how other bar patrons
became involved in the altercation, and she heard Rosie encouraging her sons to fight.
Tonya stated that during the argument, her uncle pushed everyone outside and ordered
Tonya and her sister to go back inside, and they hid behind the bar. Tonya did not see
anyone with a gun inside the bar that night, but she knew her uncle kept a gun at the
bar.
Armstrong was the third and final witness for the defense. Armstrong testified
he went to Hayti Heights, Missouri, with Solomon, Antwon, Tyreese, and Brown to
visit Antwon’s and Tyreese’s cousins. Armstrong referred to Solomon, Antwon, and
Tyreese as his brothers. Armstrong explained the group went to Channelle’s
residence, played ball, slept, and then decided to go out. Armstrong and his brothers
went to C.J.’s, where his brothers were “drinking real heavy,” and could not drive.
Armstrong stated he only had a couple of drinks, so he went to pick up Channelle,
Terrell, Devonne, Diane, and Diane Vaughn, and brought them back to C.J.’s.
Armstrong admitted there was a hole in the car dashboard where the radio should have
been, but Armstrong denied having a gun in the radio compartment. Armstrong also
denied observing an argument inside the nightclub.
Armstrong said he was having a conversation with Jones, when Jones
exclaimed, “[W]ait a minute,” got up, and ran past Armstrong to the back of the bar.
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Armstrong described how all the club patrons rushed outside. Armstrong did not
know where his brothers were, so he started calling for them, and then he heard
Tyreese’s voice outside. Armstrong slipped through the people crowded at the door,
and was still standing in the club when Armstrong asked Tyreese what was happening.
Tyreese said, “man, they all here tripping.” Armstrong claimed he tried to encourage
Tyreese to “just let it go,” when a man behind Armstrong said, “get out, get out, get
out,” and showed Armstrong a gun. Armstrong does not know who the man was, and
said the man did not testify. Armstrong claimed he had never seen a gun before, so
he put his hands in the air and said, “okay, man, let me get my coat.” Armstrong
grabbed his coat and walked backwards outside.
Armstrong testified he saw Tyreese, Diane, and Antwon standing eight to
fifteen feet from the door, while Diane and Terrell were arguing with some other
people. Armstrong stated he asked Tyreese what was going on and tried to calm
Tyreese down by stating, “we didn’t come down here for that, let’s go.” Armstrong
said Tyreese stopped arguing and responded, “all right, let’s go.” Armstrong
described how he walked over to get Antwon, but Antwon was engaged in an
argument in another area of the parking lot and refused to leave. Armstrong reported
he began walking toward Carlos, but Michael cut Armstrong off and stated, “I advise
you to get your brothers.” Armstrong testified, the man had his hands in his pockets
and “the way he looked at me, he made a straight eye contact. . . . And at that time I
felt that maybe he had a gun on him.” Armstrong stated he backed away from
Michael and walked to Antwon who was telling the crowd he would fight them all.
The crowd approached them and Antwon asked, “What’s up?” Armstrong claims
someone responded, “this is what’s up,” and started shooting.
Armstrong ran to the car, but it was stuck in the mud. As the group tried to get
the car out of the mud, the same person started shooting again, so they ran to 108
North Martin Luther King Drive to hide. Armstrong insisted he did not brandish a
gun at C.J.’s nightclub, and he did not shoot Carlos, Devonne, or Yolanda.
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During cross-examination, the prosecutor asked, “are you saying you saw
somebody shoot, but you don’t know who they were?” Armstrong responded, “I
never saw a gun. The only thing I saw was the shots, well, when the fire come out of
it just fired and I ducked and ran.”
Armstrong testified Antwon, Solomon, Tyreese, and Brown returned to
Milwaukee sometime after the shooting. Armstrong noted that, while he was
incarcerated, Devonne and J. went to Milwaukee to stay with Armstrong’s brother and
Armstrong spoke to Devonne and J. on the telephone.
b. Uncalled Defense Witnesses
On January 20, 2009, the district court held Armstrong’s habeas corpus hearing,
and two of Armstrong’s out-of-state witnesses testified.7 Solomon, Armstrong’s
biological brother, was the first witness. Solomon testified his foster brother, Antwon,
wanted to go to Hayti Heights, Missouri, to visit family, so Solomon, Armstrong,
Antwon, Tyreese, and Brown traveled together. Solomon claimed he did not see
anyone in the car with a firearm. Solomon stated they went to 108 North Martin
Luther King Drive, which Solomon believed was the home of Diane Davis. That
night, the group decided to go to C.J.’s nightclub, and while they were at the
nightclub, a fight broke out between Diane and Terrell. Solomon walked over to the
fight with Antwon, but Armstrong remained seated at the table. Solomon stated the
bouncer had a firearm and asked Solomon’s party to leave. Solomon reported he
heard Rosie encourage Carlos and Terrell to fight.
Solomon went outside and Antwon, Tyreese, and the McGees followed.
Armstrong was still inside the bar getting his jacket. Solomon walked over to his car
and tried to get the car out of the mud. Solomon claims it was so dark outside he
7
Armstrong briefly testified on his own behalf, but we do not believe it is
necessary to recount his testimony here.
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could only see approximately five feet in front of him. When Solomon could not get
his car out of the mud, he went back and forth from his brothers to his car a couple of
times, trying to get them to help him. Solomon was walking back to his car when he
heard the gunshots. Solomon testified the gunshots came from the area of the parking
lot where “the McGees and my family was actually standing.” Solomon could not see
the people because it was too dark.
Solomon then stated, “[W]hen I the heard the gunshots, I immediately kind of
took cover behind my car to see what was going on, and that’s when pretty much
everybody just scattered.” Solomon heard between five and twelve shots, and never
saw anyone with a gun, but he did see the gun flash. Again, Solomon testified the
flash came from near the front entrance of the bar “where the McGees and also my
family were standing.” Solomon does not recall Armstrong in that area. Solomon
maintains Armstrong and the three other men joined Solomon at his car and tried to
push the car out of the mud, when someone started shooting at them. When the men
could not get the car extracted, the group ran to North Martin Luther King Drive, past
the men who were shooting at them. Solomon stated they went to either Channelle’s
or Diane’s house. While they were at the residence on North Martin Luther King
Drive, someone shot at the house. The men turned off the lights and hid in a hallway
where there was no phone to call for help. Solomon testified there was a series of
three drive-by shootings, and during the last drive-by shooting, Officer Hayes was
shot. Solomon, Armstrong, Tyreese, and Antwon were arrested. Solomon said, the
next morning everyone but Armstrong was released, and Solomon and the others
eventually returned to Milwaukee.
Solomon explained, before Armstrong’s trial, Armstrong’s defense attorney
called Solomon and asked him to testify on Armstrong’s behalf. Solomon told
Armstrong’s counsel he had no money or method of transportation, and counsel told
him to borrow the money and she would reimburse him. Solomon said he would have
attended Armstrong’s trial if he had the means.
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During cross examination, Solomon again stated Armstrong did not know about
the fight between Diane and Terrell, and Armstrong was still inside the bar when
Solomon and the others walked outside, followed by the McGees. Solomon claimed
he was in his car trying to get it out of the mud when the shots were fired. The
prosecutor asked, “So you were in the car, working it back and forth or whatever, at
the time you heard the shots?” Solomon replied, “Yes.” Solomon again indicated the
shots were coming from the front entrance of the bar. The prosecutor clarified that
Armstrong had been inside the bar and later exited the front entrance of the bar, which
is where the shots came from. Solomon stated he saw a flash from the area near the
front entrance of the bar, but he did not identify who fired the gun. Solomon then
took cover either behind or on the side of his car when the shots were fired. Solomon
asserted he continued to take cover until Armstrong pulled him and they started to run.
Solomon did not see Armstrong until after the shots were fired and Armstrong ran to
the car. Solomon again testified he never saw the shooter.
Armstrong’s foster brother, Antwon, also testified at Armstrong’s habeas
corpus hearing. At the time of the hearing, Antwon was incarcerated for a 1999
controlled substance conviction. Antwon testified he was sentenced to serve over
sixteen years imprisonment. Antwon explained he did not have any convictions at the
time of Armstrong’s trial. Antwon reported that on January 6, 1996, Antwon,
Armstrong, Solomon, Tyreese, and Brown drove to his cousin Diane’s home in Hayti
Heights, Missouri. Antwon testified various people came over to Diane’s home that
day, including Diane’s boyfriend Terrell, whom Antwon knew from previous visits
and considered to be a friend. Antwon testified he left for C.J.’s nightclub with
Armstrong, Solomon, Tyreese, and Brown. Antwon stated Diane and Terrell met
them at the club later. After a time in the nightclub, Antwon saw a commotion in the
front of the club, and when he asked what was going on, Terrell got defensive.
Tyreese said Terrell slapped Diane, so Antwon confronted Terrell. Antwon told
Terrell they should take it outside, so Antwon walked out and Terrell and his family
followed.
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Antwon testified he was under the influence of alcohol to the point “it made
[him] do things that [he] normally wouldn’t do in character,” for example, he felt more
aggressive. Antwon was ready to fight and the crowd gathered around him. Brown
notified Antwon’s friends and family in the bar that Antwon was going to get jumped,
so his brothers, including Armstrong, came outside to stand by him. Antwon said he
never saw a gun inside the bar, and outside the bar it was “real dark.” Antwon
testified Rosie was encouraging Carlos and Terrell to fight, while Solomon,
Armstrong, Tyreese, and Brown were next to Antwon trying to calm him down.
Armstrong told Antwon to let it go and said, “They got guns, man.” Antwon testified
he did not see anyone with a firearm. Armstrong tried to grab Antwon, but Antwon
resisted, and that is when Antwon heard the gunshots.
Antwon stated he and his group were standing facing the bar, while the McGees
were standing facing the road. Antwon asserted he turned around and saw fire from
gunshots as the shots were fired from the street toward the direction of the club.
Antwon testified he ran to their car, which was stuck in the mud, and put the car in
reverse, but the wheels were just spinning. Antwon said Solomon was in the car with
him, while Armstrong, Tyreese, and Brown were outside of the car. When the men
could not get the car out, they jumped out of the car and began to run toward the road.
Antwon stated they ran inside Channelle’s house. Antwon claimed he called his aunt
and told her someone was shooting at them. The police arrived and ordered Antwon
and his three brothers to lie on the floor. While they were being arrested, an officer
was shot and fell on top of them. Antwon described how someone walked into the
house where they were lying, pointed at them, and said they were the men at the
nightclub that night. Armstrong, Solomon, Antwon, and Tyreese were then arrested.
Antwon also testified that before Armstrong’s trial, Antwon was contacted by
an investigator for Armstrong’s attorney. Antwon does not recall whether the
investigator asked Antwon to testify at Armstrong’s trial. Antwon stated, if he had
been asked to testify, he would have, but only “[i]f they would have made the
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arrangements to get [him] there and protect [him],” because he was afraid for his life.
During cross-examination, Antwon denied telling an investigator from the attorney
general’s office that the shots came from directly behind him and to the right.
After Antwon testified, the state called Thomas, an investigator with the Public
Safety Unit of the Missouri Attorney General’s Office. Thomas conducted an
interview of Antwon on January 6, 2009, at the Federal Correctional Center where
Antwon was housed. Thomas asked Antwon about the shooting, and Antwon said he
was outside the club at the time of the shooting. Antwon stated Armstrong was
standing behind and to the right of Antwon. When Thomas asked Antwon where the
shots came from, Antwon explained, “[T]he shots came from right here,” and gestured
behind him and to the right. Antwon insisted Armstrong was not the shooter and said,
“I know for a fact he wasn’t the shooter and that he did not have a gun with him.”
Thomas asked Antwon if he would have returned to Missouri if Antwon had been
subpoenaed. Antwon replied he would not have returned because he was afraid of
getting shot.
3. Credibility of All Witnesses
We must also consider the credibility of the uncalled witnesses to determine
whether Armstrong was prejudiced by his counsel’s ineffective assistance. See
McCauley-Bey, 97 F.3d at 1106. Armstrong’s two uncalled witnesses are both subject
to impeachment. Antwon and Solomon have close personal relationships with
Armstrong—Antwon is Armstrong’s long-time foster-brother, and Solomon is
Armstrong’s biological brother. This relationship creates a potential bias and a motive
to provide false information, which could lead to the release of Antwon’s and
Solomon’s brother from prison. See Williams v. United States, 452 F.3d 1009, 1013
(8th Cir. 2006) (noting the extent of the witness’s personal relationship with the
defendant should be considered in evaluating the credibility of the witness). Neither
Antwon nor Solomon came forward to testify at Armstrong’s trial, despite receiving
telephone calls from Armstrong’s counsel or her investigator providing them with
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information about the trial and offering to reimburse them for their travel. See
McCauley-Bey, 97 F.3d at 1106 (recognizing the witness’s failure to come forward
promptly may impact the credibility of the witness).
At the time of the habeas hearing, Antwon was serving a 200-month prison
sentence for a 1999 drug conviction, which he received three years after Armstrong’s
trial. Antwon could not have been impeached for this offense at the time of
Armstrong’s trial, and we have already held Armstrong’s attorney should have
secured Antwon’s attendance at the time of Armstrong’s initial trial. However, we
must also weigh the credibility of the testimony Antwon provided at the habeas
hearing, and Antwon’s felony conviction certainly weakens his credibility. See Fed.
R. Evid. 609(a)(1), (b).
In addition to Antwon’s and Solomon’s close relationship with Armstrong, and
Antwon’s criminal history, the credibility of Armstrong’s uncalled witnesses must
also be questioned on the basis of their inconsistent testimony. Solomon twice
changed his testimony when referencing where he was at the time of the shooting.
Solomon initially claimed he was walking toward his car and then took cover by his
car when the shots were fired. Solomon next asserted he was inside his car, trying to
get it out of the mud when the shooting started. Finally, Solomon claimed he was
standing beside his car, taking cover when the shots were fired. Despite Solomon’s
poor memory of his location at the time the shooting began, he testified the shooting
came from near the front entrance of C.J.’s nightclub, he could only see approximately
five feet in the dark, he did not see who was responsible for the shooting, and he did
not see Armstrong until after the shooting began and Armstrong met Solomon at the
car. Even if Solomon’s testimony were believed, Solomon’s testimony that he did not
see Armstrong at the time of the shooting, or who did the shooting, is not particularly
beneficial to Armstrong’s defense.
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Antwon also provided inconsistent testimony at the habeas hearing. Most
significantly, Antwon claimed the shots were fired from the road, whereas the other
eyewitnesses who identified the location of the shooting, including Solomon, testified
the shooting took place near the front entrance of C.J.’s nightclub. Additionally, both
Antwon and Solomon placed themselves inside the vehicle after the shooting, trying
to work the car out of the mud. Antwon was also the only witness to testify there was
access to a telephone at Channelle’s house after the shootings, and instead of
contacting the police, Antwon called his aunt. Antwon insists Armstrong did not have
a gun in C.J.’s parking lot, but like Solomon, Antwon did not see who was responsible
for the shootings. This testimony is contradicted by the government’s nine
eyewitnesses8 who testified they saw Armstrong shoot Carlos, Devonne, and
Yolanda.9 See McCauley-Bey, 97 F.3d at 1106 (discounting the credibility of an
uncalled witness whose testimony was inconsistent with the testimony of the other
witnesses).
Armstrong attempts to challenge the credibility of the government witnesses,
claiming the relationship of the victims and the witnesses creates a motive to fabricate.
This relationship did not exist with the employees of C.J.’s nightclub, including the
doorman who testified he saw Armstrong display a gun, as Armstrong stood beside
the doorman inside the club. C.J’s owner testified Armstrong acted as if he had a gun.
We are unconvinced any of the Davises had a recognizable motive to falsely
accuse Armstrong of murder. The Davises are each biologically related to Antwon
and Tyreese, and Armstrong considers Antwon and Tyreese brothers. Armstrong
8
Levonne, Yolanda, Michael, Diane, Felicia, Devonne, Channelle, Terrell, and
Rosie.
9
J. also saw Armstrong begin to fire his weapon, but J. ducked and did not see
Armstrong actually shoot Carlos. When J. got up, he saw that his sister, Devonne, had
been shot.
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knew Devonne and Levonne from their visits to Milwaukee, and Armstrong met the
other Davises, those who testified at trial, at Channelle’s house that day. When Diane
and Terrell began to argue, some of the Hamiltons and the Armstrongs came to
Diane’s defense, putting them on the same side of the argument as the Davises. After
the shooting was over, Devonne, who had been shot in the thigh, went to the car
Armstrong had driven to the bar and asked for a ride. When Solomon, Antwon, and
Tyreese returned to Milwaukee, J. and Devonne followed and stayed with them.
Armstrong reported he continued talking to Devonne and J. while he was incarcerated.
The relationship Armstrong had with the Davises does not support Armstrong’s claim
the Davises had a motive to fabricate information about his guilt.
Armstrong charges the McGees were biased because they were seeking
vindication for Carlos’s death. Armstrong puts forth a theory that Carlos was hit by
friendly fire and the McGees wanted to pin the death on Armstrong. The remarkable
consistency of the McGees’s statements with the testimony of the unrelated witnesses
lends credibility to the McGees’s testimony. We must consider, of course, that the
McGees were involved in an altercation with the Armstrongs and the Hamiltons, and
would have a bias against Armstrong for that reason.
4. Analysis
On remand for the second time, the district court found Antwon and Solomon
were credible witnesses because (1) neither had given a prior statement that could be
used to impeach them, (2) neither had a criminal conviction at the time of trial, and
(3) “while small details may have varied between the accounts the two men gave more
than thirteen years after the fact, they were unequivocal in their assertions that
[Armstrong] never possessed a firearm.” In considering the interplay of the uncalled
witnesses with the actual defense witnesses called, the district court concluded
Solomon’s and Antwon’s testimony would not have been cumulative, and they “could
have provided a defense for [Armstrong] had they been called to testify.” Finally, the
district court considered the strength of the prosecution’s case and noted “there was
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some confusion regarding both the ballistic reports from the shootings of [Carlos] and
[Officer Hayes], and the chains of custody of the bullets from the shootings.” The
district court also emphasized that the close relationship of Antwon and Solomon with
Armstrong “is neutralized by the fact that all the State’s witnesses had personal
relationships with the victims and/or with each other.”
The district court did not give proper weight to the credibility of the uncalled
witnesses, the interplay between the uncalled witnesses and the actual defense
witnesses called, and the strength of the evidence presented by the prosecution. See
McCauley-Bey, 97 F.3d at 1106-07. Taking into consideration each of the McCauley-
Bey factors, we conclude Armstrong failed to demonstrate a reasonable probability
the outcome of his trial would have been different had it not been for defense
counsel’s ineffectiveness.
First, Armstrong’s uncalled witnesses offered inconsistent testimony, in part,
and were patently impeachable. In contrast, the government’s witnesses were largely
consistent with one another, and several had no rational basis for prevarication. The
district court erred in finding Armstrong’s relationship with Antwon and Solomon was
“neutralized” by the relationships many of the state’s witnesses had with the victims.
There is no evidence in the record to support the view that the staff at C.J.’s nightclub
or the Davises had any bias or motive to testify falsely. The district court’s citation
that neither Antwon nor Solomon had given a prior statement does not bolster their
credibility. In fact, their failure to come forward for so many years has the opposite
effect. And, while it is true neither witness had a conviction at the time of trial,
Antwon did have a felony conviction at the time of the habeas hearing, which should
be considered when measuring his hearing credibility. It is also necessary to consider
the inconsistencies in Solomon’s and Antwon’s testimony. Antwon’s testimony the
gunfire came from the direction of a nearby road is contrary to each of the
government’s witnesses, as well as Armstrong’s and Solomon’s.
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Second, while Antwon and Solomon are the only witnesses who have attempted
to corroborate Armstrong’s claim that Armstrong was unarmed at the time of the
shootings, neither of the uncalled witnesses testified to seeing someone other than
Armstrong fire the shots which killed Carlos, and injured Devonne and Yolanda.
Solomon’s testimony described the darkness and actually placed Armstrong in the
area where the shots were fired at the time the shots were fired.
Finally, “there is no prejudice if, factoring in the uncalled witnesses, the
government’s case remains overwhelming.” Id. at 1106 (citations omitted). At
Armstrong’s trial, the strength of the evidence presented by the prosecution was
overwhelming. Of the government’s nineteen witnesses, ten of the witnesses10
testified they saw Armstrong with a gun in C.J.’s parking lot. The same ten witnesses
saw Armstrong shooting the gun. Although J. was ducking and did not see
Armstrong’s target, the remaining nine witnesses testified they saw Armstrong
shooting at Carlos. The district court accurately observed there is no physical
evidence connecting Armstrong to the shooting.11 However, the testimonial evidence
10
Levonne, Yolanda, Michael, J., Felicia, Devonne, Channelle, Diane, Terrell,
and Rosie.
11
The district court indicated there was confusion regarding the ballistics reports
from the shootings of Carlos McGee and Officer Hayes. During Armstrong’s trial,
Wagoner, a firearms and toolmarks examiner, was the only person to testify on this
issue. Wagoner concluded the two bullets could not have been fired from the same
gun. No evidence was presented to contradict this testimony.
The district court also took issue with the chains of custody of the bullets
collected after the shootings. During Armstrong’s trial, the prosecution and defense
stipulated to the chains of custody of the bullets removed from Carlos and Officer
Hayes. The prosecutor and defense counsel also stipulated there was an incorrect date
on the chain of custody for some of the shell casings and clarified the appropriate date
for the jury. Defense counsel declared, “we’re not objecting to the chain of custody
and [its] correct date.” In light of this stipulation and clarification, no issue regarding
the chain of custody for the bullets remained.
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against Armstrong convinces us there is no reasonable probability the outcome of
Armstrong’s trial would have been different had Armstrong’s uncalled witnesses
testified. See Strickland, 466 U.S. at 694. For these reasons, we conclude the district
court erred in finding prejudice and granting Armstrong’s application for a writ of
habeas corpus.
C. Procedural Default
The district court, in its initial order, concluded the claims in Armstrong’s
habeas application were procedurally defaulted when Armstrong filed his state motion
for post-conviction relief five days after the deadline. The district court found cause
for Armstrong’s procedural default because a state-employed prison librarian gave
Armstrong the wrong deadline for filing the motion. The district court then decided
Armstrong’s ineffective assistance of counsel claim was meritless, and as a result,
Armstrong failed to demonstrate sufficient prejudice to excuse the default.
“A claim is procedurally defaulted if a habeas petitioner failed to raise it in state
proceedings.” Wooten v. Norris, 578 F.3d 767, 777 (8th Cir. 2009) (citation
omitted). “A showing of cause and prejudice may serve to excuse a procedural default
and open the door to federal review of an applicant’s otherwise defaulted claim.” Id.
(citation omitted).12 To demonstrate procedural bar prejudice, Armstrong “must
shoulder the burden of showing, not merely that the errors at his trial created a
possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982). Our court has “observed that
[procedural bar] ‘prejudice’ is higher than that required to establish ineffective
Finally, the district court noted no firearm was introduced at trial. This absence
of the actual weapon is neither unusual nor particularly significant in this case.
12
We need not determine whether the district court properly held Armstrong
demonstrated sufficient cause to excuse his default, because we decide this issue based
upon the prejudice inquiry.
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assistance of counsel under Strickland.” Charron v. Gammon, 69 F.3d 851, 858 (8th
Cir. 1995) (citing Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir. 1995)). But see
Clemons v. Luebbers, 381 F.3d 744, 752-53 n.5 (8th Cir. 2004) (noting the standards
for prejudice under the Strickland analysis may be similar to the standards for
prejudice under the procedural default analysis).
Armstrong has not demonstrated sufficient prejudice under Strickland. It
necessarily follows that Armstrong has not shown defense counsel’s failure to procure
the testimony of Antwon and Solomon “worked to [Armstrong’s] actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170. We likewise conclude Armstrong has failed to
establish sufficient prejudice to overcome his procedural default. See id.
III. CONCLUSION
We reverse the judgment of the district court and deny, with prejudice,
Armstrong’s § 2254 application.
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