Dаnny Hendricks, Appellee, v. Kelly Lock, Superintendent of Central Missouri Correctional Center, Appellant.
No. 00-1309EM
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: December 13, 2000; Filed: February 9, 2001 (Corrected 3/19/01)
Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD and HANSEN, Circuit Judges.
In this appeal, the State of Missouri seeks to revеrse the conditional grant of habeas corpus to Danny Hendricks, a Missouri prisoner. The District Court,1 in granting the writ, held that the insufficient performance of appellate counsel had in
I.
The facts, viewed in a light most favorable to the verdict, are as follows. A confidential informant helped an undercover Missouri detective to arrange to buy drugs from Mr. Hendricks‘s sister, Connie Wood. Mr. Hendricks was present during the transaction, which involved 100 dollars’ worth of cocaine. After the sale had been completed, and Ms. Wood had left the room, Mr. Hendricks said that if the detective tried the drugs and liked them, he could sell him a larger quantity thе next day. The detective said that if he liked the drugs, he would get in touch, and they would “do the deal.” The proposed transaction never took place.
On the basis of these facts, Mr. Hendricks was convicted at a bench trial of selling a controlled substance in violation of
Appellant‘s argument does not allow a decision. Appellant does not say why there must be evidence that he had access to the substance. Appellant cites cases that he contends show the need for a presence of a cоntrolled substance, but he does not connect them to the present case in any respect, nor does he provide explanation of why they might be authoritative. His statements, although thought-provocative, are nothing more. His stаtements are presented, then left unsupported by any
reasoning. Left as they are, completely undeveloped, they provide nothing for meaningful review.
State v. Hendricks, 944 S.W.2d 208, 210 (Mo. 1997) (en banc).2 Mr. Hendricks filed a motion to recall the mandate, arguing that he had recеived ineffective assistance of appellate counsel. The Missouri Supreme Court summarily denied this motion. Petitioner then urged the claim by way of a
II.
The District Court held, under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), that Mr. Hendricks‘s appellate counsel did not exercise skill and diligence at the level to be expected of a reasonably competent attorney. The State does not challenge that part of the order. But attorney incоmpetence, standing alone, does not necessarily justify a writ of habeas corpus. In the usual case, a defendant who seeks the protection of Strickland must also show that counsel‘s incompetence caused him some material harm. See id. at 687. In the District Court‘s view, Mr. Hendricks‘s case fell within an exception to that rule for defendants who are, actually or constructively, altogether denied the assistance of counsel in a proceeding where a cоnstitutional right to it exists. See id. at 692. For that reason the District Court did not require Mr. Hendricks to show a reasonable probability that he would have prevailed in the state appellate court with the benefit of competent counsel.
The Stаte first argues that the District Court applied the wrong standard of review.
- 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
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.
We do not believe that the case should go back to the District Court for any error concerning standard of review. First, the Statе cites no passage in the District Court‘s order that would tend to support the inference that the Court applied de novo review. The order does recite that a de novo standard was applied in adopting the recommendation and proposed order of the United States Magistrate Judge, but the standard applied there is not challenged. Second, the State conceded at oral argument that Mr. Hendricks‘s appellate counsel was constitutionally deficient. Thus, any
II.
For the sake of argument, we adopt the State‘s interpretation of the Missouri Supreme Court‘s order denying the motion to recall the mandate. That is, we assume that the order implies a decision on the merits that Mr. Hendricks was not prejudiced by his counsel‘s deficient performance. The question then becomes whether such a decision would (1) be сontrary to, or (2) involve an unreasonable application of, clearly established Supreme Court precedent. See
In our view, it would be unreasonable to hold that a defendant in Mr. Hendricks‘s position was not prejudiced by his counsel‘s delinquеncy. It is clear that “the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits,” and that the same constitutional protection extends to the first аppeal of right. Evitts v. Lucey, 469 U.S. 387, 395-96 (1985). The Supreme Court has also clearly stated that, where the ineffective performance of counsel deprives a defendant of his appeal altogether, post-conviction relief under
The State next points out that the Supreme Court has distinguished the complete denial of appellate counsel, which would justify a presumption of Strickland prejudice, from “a сase in which counsel fails to press a particular argument on appeal . . . or fails to argue an issue as effectively as he or she might.” Penson v. Ohio, 488 U.S. 75, 88 (1988). According to the State, a defendant alleging the latter kind of ineffective assistancе would not be entitled to a presumption of prejudice. Mr. Hendricks‘s case is not so easily distinguishable from one that involves a complete denial of counsel. His claim is not that there was some important issue that his attorney failеd to raise or that should have been argued more strenuously than it was. His claim is that the advocacy he got did not move him appreciably closer to a decision on the merits on any issue than would no advocacy at all. This claim is sufficiently supported by the fact that the Missouri Supreme Court refused to address the substance of Mr. Hendricks‘s appeal.
Mr. Hendricks was altogеther denied a decision on the merits in his first appeal of right. It is unquestioned that he wished to take an appeal and that he so instructed his appellate counsel. The only reason he did not get a decision on the merits is that his cоunsel‘s performance fell short of the constitutional standard. In such a case, it is inappropriate and irrelevant to speculate what the decision on the merits might have been.
III.
Because prejudice is presumed as а matter of law, there is no need to remand to the District Court. We therefore affirm the District Court‘s order provisionally granting the writ of habeas corpus.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.