Norris Holder v. United States
721 F.3d 979
8th Cir.2013Background
- In 1997 Holder and an accomplice robbed a St. Louis bank; a security guard (Heflin) was shot and killed during the robbery; Holder was captured, confessed to planning and participating in the robbery, and supplied weapons.
- Holder was tried separately, convicted on two counts (robbery with death resulting; carrying a firearm during a violent crime causing murder), and sentenced to death following a penalty phase where statutory and nonstatutory aggravators were found and many mitigating claims were rejected by jurors.
- Trial counsel conceded Holder's participation in the robbery and pursued a strategy focused on lack of mens rea for the death penalty; Holder testified and defense presented two mental-health experts who found no major cognitive or psychiatric impairment.
- On direct appeal and certiorari the convictions were affirmed; Holder later filed a 28 U.S.C. § 2255 motion raising indictment/notice and multiple ineffective-assistance claims and sought an evidentiary hearing on mental-health investigation; the district court denied relief and denied a Rule 59(e) motion.
- On appeal of the Rule 59(e) denial, the Eighth Circuit reviewed ineffective-assistance claims under Strickland, reviewed denial of an evidentiary hearing for abuse of discretion (with de novo review of underlying § 2255 legal conclusions), and applied harmless-error analysis to the indictment/notice claim under Allen II.
Issues
| Issue | Plaintiff's Argument (Holder) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Counsel conceded robbery and advised Holder to testify; ineffective assistance under Cronic/Strickland | Shaw’s concession and advice to testify prevented meaningful adversarial testing and should trigger presumed prejudice or at least be deficient under Strickland | Counsel reasonably conceded uncontested factual guilt and pursued a strategic mitigation-focused defense to avoid death; active adversarial testing occurred | Counsel’s concession was strategic and reasonable; Cronic does not apply; no Strickland prejudice found |
| Failure to retain/consult an independent ballistics expert | Counsel was ineffective for not calling a ballistics expert (failure-to-dispute and later failure-to-confirm theories) which harmed defense credibility and strategy | Shaw reasonably cross-examined government expert; two possible outcomes from a defense expert would not have changed result given other evidence | No deficiency shown; or, even if deficient, no prejudice because ballistics evidence was minimally probative amid strong prosecution case |
| Failure to object to pecuniary-gain jury instruction | Instruction used generic term "offense" instead of specifying the homicide, allowing jurors to link pecuniary motive to robbery rather than murder; counsel ineffective for not objecting | Law was unsettled at trial; even if instruction was faulty, evidence strongly supported pecuniary-gain applied to the killing—any jury would find it | No prejudice: even with correct wording, any rational jury would find the pecuniary-gain aggravator applied; ineffective-assistance claim fails |
| Denial of evidentiary hearing on mental-health investigation | Counsel (Herndon) unreasonably failed to obtain a third psychologist or trauma expert pre-sentencing; hearing required to explore omitted mitigation and prejudice | Defense retained and presented two qualified experts and extensive mitigating testimony; no reason to expect additional experts would change outcome | No abuse of discretion: counsel’s investigation was adequate (two experts sufficient); no Strickland prejudice shown |
| Indictment failed to allege statutory aggravator(s) and mens rea (Fifth Amendment) | Omission of statutory aggravating factors and mens rea from indictment violated Indictment Clause; structural error or at least not harmless | Under Allen II, omission is error but subject to harmless-error review; record shows grand jury would have charged aggravators and mens rea | Rejected: applying Allen II, omission is harmless beyond reasonable doubt because a rational grand jury would have found statutory aggravator(s) and mens rea |
Key Cases Cited
- Cronic v. United States, 466 U.S. 648 (trial counsel so deficient that prejudice is presumed)
- Strickland v. Washington, 466 U.S. 668 (two-pronged standard for ineffective assistance of counsel)
- Ring v. Arizona, 536 U.S. 584 (jury must find facts that increase maximum punishment in capital cases)
- Florida v. Nixon, 543 U.S. 175 (guilt concession in capital cases analyzed under Strickland; strategic concessions can be reasonable)
- Wiggins v. Smith, 539 U.S. 510 (failure to investigate mitigation can be constitutionally deficient)
- United States v. Allen, 406 F.3d 940 (8th Cir. en banc) (indictment must allege statutory aggravator(s); omission subject to harmless-error review)
- United States v. Bolden, 545 F.3d 609 (8th Cir. 2008) (pecuniary-gain aggravator applies to killing only where gain is a direct result of the murder)
- LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998) (affirming that a rational sentencer could find pecuniary-gain aggravator where murder furthered robbery)
- Chapman v. California, 386 U.S. 18 (constitutional error may be harmless only if harmless beyond a reasonable doubt)