*

The Honorable James B. Loken became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 1, 2003. 

1

The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2763

___________

Dennis Lamar, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

L. W. Graves, Jr., Warden, *

*

Appellee. *

___________

Submitted: January 15, 2003

Filed: April 17, 2003 (Corrected: April 30, 2003)

___________

Before LOKEN,*

 FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Dennis Lamar was convicted in state court of first degree murder and three

counts of first degree robbery. After the state court denied Mr. Lamar's appeal and

his requests for post-conviction relief, he filed a petition under 28 U.S.C. § 2254.

The district court1

 denied his petition and he appealed. We affirm.
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On the day of the robbery, Mr. Lamar told Thomas Gladson that he planned to

rob a grocery store in Newton, Iowa, and asked him to be his driver. Mr. Gladson

initially declined, but both of them then armed themselves and drove together to the

store in question. Mr. Lamar went in and robbed the store employees at gunpoint,

and Mr. Gladson waited in the car. While Mr. Lamar was inside, the store alarm went

off and three police officers arrived at the store parking lot. As Mr. Lamar attempted

to leave the scene a gunfight with the police ensued, and Officer Daniel McPherren

was killed. When Gladson was arrested the gun that fired the fatal shot was in his

possession.

In this appeal, Mr. Lamar contends that he received ineffective assistance of

counsel and that the state engaged in prosecutorial misconduct. Mr. Lamar may not

obtain relief unless the state court's adjudication of his claims "resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the [United States] Supreme Court." 28 U.S.C.

§ 2254(d).

I.

Mr. Lamar contends that his right to the effective assistance of trial counsel

was denied in several respects. As a general rule, to succeed on a claim of ineffective

assistance of counsel the defendant must establish both "that counsel's representation

fell below an objective standard of reasonableness," and that but for counsel's

deficiency there is "a reasonable probability that ... the result of the proceeding would

have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). But

Mr. Lamar argues that in this case the state court should have applied the principle

established in United States v. Cronic, 466 U.S. 648, 659 (1984), namely, that

prejudice need not be proven when "counsel entirely fails to subject the prosecution's

case to meaningful adversarial testing." The difference between the ineffectiveness

of counsel in cases governed by Strickland and those governed by Cronic is a

difference in "kind" rather than simply "degree," and the Cronic standard applies only
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if counsel's failure to test the prosecution's case is "complete." See Bell v. Cone, 122

S. Ct. 1843, 1851 (2002).

Here, after carefully reviewing the record, we conclude that Mr. Lamar's trial

counsel repeatedly challenged the prosecution's case, and that those aspects of

Mr. Lamar's counsel's performance that he questions are not different in kind from

attorney's actions that the Supreme Court has "held subject to Strickland's

performance and prejudice components," cf. Bell, 122 S. Ct. at 1851-52. The state

court therefore correctly relied on the standard in Strickland to deal with his

ineffective-assistance claims.

Mr. Lamar argues, in the alternative, that even under Strickland his counsel's

performance was ineffective in several respects. We address each of these claims in

turn.

II.

Mr. Lamar first claims that his counsel should have more thoroughly

questioned a witness about the statements of his co-defendant, Mr. Gladson. In Iowa,

first degree murder may be proved against one participant in a robbery by showing

that another participant killed an individual with malice aforethought, see State v.

Ragland, 420 N.W.2d 791, 793-94 (Iowa 1988); see also Iowa Code Annot.

§§ 707.2(2), 702.11.1, and felony murder was submitted to the jury as a basis for

Mr. Lamar's conviction. At trial, Mr. Lamar admitted to committing the robbery, but

contended that Mr. Gladson, who had escaped from prison, shot Officer McPherren

to avoid capture, and that he (Mr. Lamar) could not be guilty of felony murder

because he and Mr. Gladson were not co-participants in a felony. In support of this

contention, Mr. Lamar's counsel elicited witness testimony that when Mr. Lamar

asked Mr. Gladson to participate in the robbery, Mr. Gladson emphatically refused.
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Mr. Lamar argues that counsel should have elicited testimony that Mr. Gladson

repeatedly expressed his lack of interest in Mr. Lamar's plan. In Iowa, a person

participates in an offense "during part or the entire period" from the first act "toward

the commission of the offense" until "the person has been arrested or has withdrawn

from the scene," Iowa Stat. Ann. § 702.13; see also State v. Liggins, 557 N.W.2d 263,

267 (Iowa 1996). Here, after declining to assist Mr. Lamar, Mr. Gladson, aware of

Mr. Lamar's intentions, armed himself, rode to the grocery store with Mr. Lamar,

waited for him in the car behind the store, and shot at the police as Mr. Lamar left the

store. Based on these facts the jury was, of course, free to believe that Mr. Gladson

was participating in the robbery. The state court concluded that there was no

reasonable probability that additional testimony about Mr. Gladson's initial reluctance

to participate in the robbery would have changed the jury's verdict. See Strickland,

466 U.S. at 694. In so doing, we think that the court reasonably applied clearly

established law as set forth in the decisions of the Supreme Court.

III.

We also reject Mr. Lamar's claim that his trial counsel should have consulted

with an expert in order to respond to a police officer's testimony that an indentation

on the grocery store wall was caused by a bullet fired by Mr. Lamar, who testified

that he did not fire his gun. As the state court reasonably concluded, Mr. Lamar

cannot succeed on this claim because he has offered no expert testimony to support

it. See Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989), cert. denied, 493 U.S.

898 (1989).

IV.

Mr. Lamar also claims that his attorney should have presented the testimony

of Russell Zitek, who would have testified that Mr. Gladson admitted shooting at a

police officer after she shot at him. According to Mr. Lamar, this shot from

Mr. Gladson (rather than a shot from Mr. Lamar) could have caused the indentation

on the grocery store wall and Mr. Zitek's testimony would have supported
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Mr. Lamar's version of the events. The state argues that this claim is procedurally

defaulted because it was not raised in state court, see Williams v. Kemna, 311 F.3d

895, 897 (8th Cir. 2002), but Mr. Lamar asserts that it was. In any event, even if the

claim was preserved, the state court rejected it, and we think that it was not an

unreasonable application of clearly established federal law as determined by the

Supreme Court to conclude that there was no reasonable probability that the jury

would have reached a different verdict had it heard that Mr. Gladson said that he

exchanged gunfire with another officer at the scene.

V.

We also believe that Mr. Lamar is not entitled to relief on his claim that his trial

counsel was ineffective when he did not object to a juror sleeping through part of the

state's case. Counsel testified that he withheld his objection because he did not mind

if a juror missed part of the state's presentation. We believe that the state court did

not unreasonably apply Supreme Court decisions by concluding that counsel's

strategy was the "result of reasonable professional judgment" and did not prejudice

Mr. Lamar. See Strickland, 466 U.S. at 690; cf. Mitchell v. Kemna, 109 F.3d 494, 496

(8th Cir. 1997), cert. denied, 522 U.S. 880 (1997).

VI.

Mr. Lamar, who is black, also claims that his counsel was ineffective because

he did not object to a racial slur that the prosecutor allegedly made in closing

argument. Closing arguments were not recorded, and the only evidence that

Mr. Lamar offered in support of this claim is the testimony of his trial counsel, who

was deposed during Mr. Lamar's state post-conviction proceedings. The attorney's

recollection of the closing argument, which had taken place seven years earlier, was

vague: Counsel testified that the prosecutor "made a racial slur regarding blacks, and

I don't remember his comments." Later in the deposition, counsel explained that he

did not object, in part, because he did not think that the prosecutor's remark "was very

persuasive. I mean it was kind of like a 'Black Sambo' kind of comment." We are
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unsure of exactly what counsel meant by his description of the remark, although we

note that he used it in the context of downplaying the comment's effect on the jury.

We find any racial slur, assuming that it was uttered, inexcusably

reprehensible, but Mr. Lamar has established neither what was said nor the context

in which the undefined remark was made. Based on this uncertain and incomplete

rendition of what occurred, we simply cannot say that it was an unreasonable

application of clearly established federal law as determined by the Supreme Court for

the state court not to conclude that counsel's failure to object violated Mr. Lamar's

constitutional right to the effective assistance of counsel.

VII.

Mr. Lamar also contends that the state violated his due process right to a fair

trial by asking him during cross-examination whether certain state witnesses,

including police officers, were lying. Mr. Lamar relies on cases from other circuits

that prohibit a prosecutor from eliciting testimony from one witness that another

witness has lied, particularly where, as here, the witness is a law enforcement officer.

See, e.g., United States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998); United States

v. Richter, 826 F.2d 206, 208 (2d Cir. 1987). We first note that the cases cited by

Mr. Lamar are direct criminal appeals that do not rely on constitutional principles for

their rulings, and that Mr. Lamar has not cited to nor have we found a Supreme Court

case addressing this issue. We believe, moreover, that regardless of whether the

challenged questions had been asked it was obvious to the jury that Mr. Lamar's

testimony was contrary to that of several of the prosecution's witnesses. Cf. United

States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996). Although we do not necessarily

condone the questions posed to Mr. Lamar, we conclude that the state court's

rejection of the claim (which Mr. Lamar framed in that court as an ineffectiveassistance claim) is not an unreasonable application of federal law as established by

relevant Supreme Court decisions.
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VIII.

Finally, Mr. Lamar contends that his appellate counsel was ineffective for

failing to raise on direct criminal appeal the claims that we have already addressed

and rejected in this opinion. Assuming for the sake of argument that Mr. Lamar has

not defaulted these claims, and that they could have even been raised in a direct

appeal in Iowa, we conclude that the Iowa court would have rejected them (as it did

in post-conviction proceedings) and thus Mr. Lamar has suffered no prejudice.

IX.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.