Robert Flieger v. Paul K. Delo, Superintendent

HEANEY, Semor Circuit Judge,

concurring in part and dissenting in part.

The record is abundantly clear that Robert FUeger presented to the Missouri state courts all of his claims of ineffective assistance of counsel that he aUeges in Ms habeas petition. Accordingly, I have no alternative but to dissent.1

*888Flieger first raised the inadequacy of his trial counsel’s representation in a motion for a new trial that he filed on June 1, 1987.2 After a hearing at which Flieger himself testified, the motion was denied. Thereafter, he filed a direct appeal alleging, among other things, that he was deprived of his Sixth Amendment right to effective assistance of counsel. In his brief, he cited numerous, specific examples of inadequacy on the part of trial counsel.

On June 20, 1988, Flieger filed a 29.15 motion for post-conviction relief, citing nearly verbatim the same examples of misfeasance and nonfeasance on the part of trial counsel that he presented on direct appeal.3 Among the more important were that “attorney Kinghom did not ■properly and adequately consult with [Flieger] prior to trial and failed to properly prepare [his] case for trial that he “failed to interview numberous [sic] -witnesses on behalf of [Flieger] even though requested to do so”; and that he “failed to call alibi witnesses who had been subpeoned [sic] and were available outside the courtroom during the trial and ... would have testified to the whereabouts of [Flieger] at the time of the alleged murder.” 4 Defendant’s Rule 29.15 Motion at 3 (emphasis added). An evidentiary hearing was held before Judge Dowd on July 29, at which time defense counsel was asked to submit a memorandum in support of his motion.5 On September 27, 1988, Judge Dowd denied Flieger’s Rule 29.15 motion.

Thereafter, Flieger filed a notice of appeal to the Missouri Court of Appeals for the Eastern District alleging that “the trial courts [sic] action in overruling petitioner’s 29.15 motion was clearly erroneous because the evidence shows that counsel made errors so serious that counsel was not functioning as ... counsel guaranteed by the 6th Amendment." Defendant’s Rule 29.15 Appellate Brief at 1 (emphasis added). Flieger, once again, cited numerous, specific examples of ineffective assistance of counsel, all of which were included in his Rule 29.15 motion and each of which was supported by relevant state case law.

The Missouri Court of Appeals heard oral argument and affirmed the trial court’s denial of Flieger’s Rule 29.15 in a consolidated disposition with his direct appeal. State v. Flieger, 776 S.W.2d 25 (Mo.Ct.App.1989). The court could not have been more explicit in announcing that it had reviewed the entire record and had considered all of the post-conviction claims that Flieger raised: “We find no error in the refusal of post-conviction relief based on any or all of the grounds defendant presented to the trial court."6 Id. at 31 (emphasis added).

This court’s view that Flieger’s “far-reaching” position “would undermine the ability of the state courts to review claims of ineffective assistance of counsel and force federal courts to review an endless variety of ineffectiveness claims that the state courts never had the opportunity to consider” neither squares with the Missouri Court of Appeals’s opinion nor with the record in this case. We have no business telling Missouri state courts what they did or did not review, or did or did *889not decide, and that is precisely what a majority of this panel seeks to do.

Under these circumstances, I do not believe that it is necessary to elaborate on all of the ineffective assistance of counsel claims that the majority discusses. I would simply state that were these the only deficiencies of counsel, I would be inclined to affirm, but they are not. When considered in connection with trial counsel’s absolute failure to consult adequately with his client in preparation for trial, a strong case of ineffectiveness can be made.

A reasonably competent attorney would not, as trial counsel did in this case, have reserved a mere forty-five minutes of his time to meet with a client charged with first-degree murder. Trial counsel met with Flieger in jail only three times — each session averaging only fifteen minutes7 — from the date Flieger was arrested until the beginning of trial. Defendant’s Rule 29.15 Hearing Tr. at 29, 59.8 Apart from this, the only other consultation he had with Flieger was at trial, but even there the sessions were abbreviated and punctuated by recesses during which Flieger was locked up and counsel was “nowhere around.” Id. at 46.

Under these circumstances, this court has only two alternatives: (1) to grant the writ unless a new trial is held within a reasonable period of time, or (2) to remand the case to the district court with directions to conduct an evidentiary hearing and complete the record with respect to all of Flieger’s ineffectiveness claims. I believe that the latter is the preferable course of action, not only because the district court will be fully apprised of the defendant’s ineffectiveness claims, but because both parties will have an opportunity to brief fully and discuss precisely what the Missouri Court of Appeals meant when it refused to grant relief on the grounds presented to the trial court. Accordingly, I dissent.

. I agree with the majority that Flieger’s appeal of the district court's denial of his writ of habeas corpus is properly before this court. I am satisfied as well that the certificate of probable cause *888issued by the district court is proper. Regarding the substantive claims Flieger raises, I believe that the circumstantial evidence in this case, although not strong, is constitutionally sufficient to sustain his conviction. Finally, I agree that Flieger’s due process claims with respect to certain evidentiary matters are procedurally barred for the reasons stated by the court.

. Flieger dismissed his trial counsel, Edward Kinghom, and hired Claude Hanks to represent him on appeal. Mr. Hanks represented him in his motion for a new trial.

. The motion was presented to Judge Robert G. Dowd, Jr., of the Circuit Court of the City of St. Louis, the same judge who presided at trial.

. In addition, Flieger listed fourteen other specific instances of ineffective assistance of counsel, including all of those claims discussed by the majority.

. Flieger’s counsel filed his memorandum in support of his Rule 29.15 motion on August 12, 1988; the state filed its suggested findings of fact and conclusions of law on August 22, 1988.

. Whatever "creativity” has been exercised in interpreting the language of the Missouri Court of Appeals here is not that of the dissenter, but that of the majority. See supra at 885 n. 6. The Missouri court's language is unambiguous, and there is no need for this court to find ambiguity where none exists.

. Although Kinghom did not give a specific time limit for the meetings, he prefaced the few visits he had with Flieger with statements to the effect that “he had to be in court shortly.” Defendant's Rule 29.15 Hearing Tr. at 45. The first time he met with Flieger he told him that he had twenty minutes. Id. The next time he visited "he was watching his watch and [] said he had to go but he would get back with me.” Id. Kinghom himself conceded that their "time at the jail was rather limited.” Id. at 71.

. A "reasonable portion” of these meetings involved explaining the trial process to Flieger, leaving little time — and certainly far less than would be expected from reasonably competent counsel in a capital murder case — to discuss trial strategy and all of the relevant facts needed to conduct a proper investigation. At the very least, lengthier, less-hurried meetings might have aided counsel in developing a more positive character profile of Flieger (contrary to the negative one he brought out at trial) that could have been used to highlight Flieger’s exemplary background, e.g., that he had no prior arrests, that he was employed as a supervisor for a security company at the time of his arrest, and that he was a fire captain for St. Louis County for thirteen years. Id. at 32-33, 72.