United States Court of Appeals

For the Eighth Circuit

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No. 11-3765

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Robert D. Cochran

lllllllllllllllllllllPetitioner - Appellant

v.

Dave Dormire, Superintendent; Chris Koster

lllllllllllllllllllllRespondents - Appellees

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: November 13, 2012

 Filed: December 14, 2012

[Published]

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Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

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PER CURIAM. 

Robert Cochran appeals the district court's denial of his petition for a writ of 1

habeas corpus under 28 U.S.C. § 2254. We affirm. Because we affirm the denial of

The Honorable Howard F. Sachs, United States DistrictJudge for the Western 1

District of Missouri. 
Cochran's petition on the merits, we do not address Respondents' contention that

Cochran's petition is untimely. 

I.

Anthony Hurt wasshot and killed during a burglary of his home on the evening

of June 14, 1996. Arthur Burns, Hurt's roommate, was arriving home in his car on

June 14 when he observed two black malesrunning out the front door of Hurt's home. 

Burns pursued the two, but he soon crashed his car and returned to Hurt's home. 

Finding Hurt fatally shot, Burns called the police. The police arrived around 7:00

P.M. 

Later that night, police questioned Ronsell Williams in connection with the

crimes. Williams confessed he, Cochran, and Wornel Mitchell had burglarized Hurt's

home. According to Williams, Hurt returned home unexpectedly during the burglary,

and Cochran shot Hurt as Williams and Mitchell ran out the front door. Mitchell

surrendered to police on June 15, confessed to the burglary, and also claimedCochran

shot Hurt. Questioned by police, Cochran denied he was involved. He admitted he

saw Williams and Mitchell on June 14, but he claimed he left them before the crimes

took place to visit a friend, James Green. Cochran also stated that after visiting

Green, he visited his girlfriend, Jackie Reed. According to Cochran, he and Jackie

spent the night in a room at the Bluebird Motel reserved for them by Malcolm,

another of Cochran's friends.

At Cochran's trial, Williams and Mitchell testified against Cochran.

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Additionally, Police Sergeant Jay Pruetting testified police had been unable to

confirm Cochran's claim that he parted with Williams and Mitchell to visit Green. 

Cochran's first trial ended in a mistrial. Cochran was convicted following a

2

second trial. We take these facts from the state court. 

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Pruetting also testified that police had questioned staff at the Bluebird Motel and at

several other motels in the area and found no record of Cochran, Jackie Reed, or

Malcolmat any of the motels ("Pruetting's motel testimony"). Cochran's trial counsel

did not object to Pruetting's motel testimony. 

Jackie Reed and her mother Mary Reed testified on Cochran's behalf. Neither

woman had a criminal record. The Reeds testified Cochran had visited Jackie Reed

on June 14, 1996 for two short periods, first at 6:30 P.M. and again between 7:15 and

7:30 P.M. Jackie Reed further testified Cochran returned around 10:00 P.M., at

which time they left to spend the night in a motel. She believed they stayed at either

the Bluebird Motel or the Skyview Motel. Green and Malcolm were not called to

testify. 

The jury convicted Cochran of one count of second-degree murder, one count

of first-degree burglary, and one count of armed criminal conduct. Cochran received

a life sentence on the murder conviction and fifteen-year sentences on each of the two

remaining convictions, all to run concurrently. His direct appeals were unsuccessful.

 

Cochran then filed a Missouri Supreme Court Rule 29.15 motion for postconviction relief. Cochran argued Pruetting's motel testimony was hearsay to which

his trial counsel should have objected. He argued the admission of Pruetting's motel

testimony prejudiced his alibi defense because it undermined the credibility of his

entire statement to the police. He also argued his trial counsel was deficient in failing

to investigate Green as an alibi witness. He argued Green's testimony would have

corroboratedCochran's statement to police and thussupported Cochran's alibi defense

as a whole. 

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Cochran raised additional claims in his 29.15 motion and in his federal habeas 3

petition in the district court, but on this appeal he raises only his trial counsel'sfailure

to object to Pruetting's motel testimony and failure to investigate Green. 

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Cochran's trial counsel testified at his 29.15 hearing. However, some ten years

had passed since Cochran's trial, and his trial counsel could not recall anything about

Cochran's case. She could only provide generic testimony about her usual trial

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practices. She stated it was not her practice to call all potential alibi witnesses. 

Instead, she would call the witness who would "come off the best," taking the

criminal history of the potential witnesses into account. She described the difficulty

of contacting potential witnesses who, due to a pending criminal charge or

incarceration, were represented by attorneys—attorneys might advise their clients

against testifying and prevent her from contacting their clients directly. Finally, she

testified she always developed a strategy before trial. 

Green was deposed in connection with Cochran's 29.15 motion because he

could not be present at the hearing. Green confirmed Cochran visited him on June

14, 1996, "earlier than evening, [or] earlier evening." Green testified he spoke with

the police either late on June 15 or early on June 16 and told them Cochran had

visited him on June 14. Green acknowledged he was incarcerated on February 19,

1998, the last day of Cochran's trial. He testified no one from the public defender's

office contacted him between June 14, 1996 and the end of February 1998. At the

time of Cochran's trial, Green had two convictions for drug possession on his record. 

Green stated he would have responded to a request to testify on Cochran's behalf. 

Applying Strickland v. Washington, 466 U.S. 668 (1984), the Missouri state

court denied Cochran's motion. It concluded that the crimes occurred around 6:30

P.M. on June 14. The court concluded that while Pruetting's motel testimony may

The state court allowed Cochran to file his 29.15 motion out of time. Cochran 4

claimed he timely filed a 29.15 motion, but on bad advice of counsel, he filed in the

wrong court, where the motion lingered for eight years before Cochran discovered his

mistake. As stated above, because we affirm denial of Cochran's petition on the

merits, we do not address Respondents' argument that Cochran's current federal

petition is untimely. 

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have constituted hearsay, Cochran had not proven he suffered any prejudice as a

result of his trial counsel's failure to object. First, Jackie Reed's testimony—that she

and Cochran had spent the night at either the Bluebird or the Skyview

motel—supported Cochran's statement to police. Second, the court noted Jackie's

testimony that she and Cochran did not leave for the motel until 10:00 P.M.. Since

Pruetting's motel testimony did not relate to Cochran's alibi for the time the crimes

were committed, the court concluded, Cochran had not shown prejudice. 

The state court also concluded Cochran had failed to prove his trial counsel had

not investigated Green. The court noted the generic testimony of Cochran's trial

counsel thatshe always investigated alibi witnesses and that potential witnesses who

were incarcerated and represented by attorneys were problematic. The court

emphasized that, under Strickland, counsel is strongly presumed to have provided

competent assistance, and the court ruled that Cochran had failed to show his trial

counsel's decision not to call Green was not merely a strategic decision. 

The Missouri Court of Appeals affirmed, and Cochran subsequently filed a

federal habeas petition alleging ineffective assistance of counsel. The district court

largely adopted the state court's factual findings and denied Cochran's petition. On

appeal, Cochran contends his trial counsel was ineffective by (1) failing to object to

Pruetting's motel testimony and (2) failing to investigate Green as a potential witness. 

II.

We may grant a petition for habeas corpus under § 2254 only if the state court

adjudication "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 the State court

proceeding." 28 U.S.C. § 2254(d). "[A] determination of a factual issue made by a

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State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence." 28

U.S.C. § 2254(e). Finally, "a state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion

in the first instance." Wood v. Allen, 558 U.S. 290, 130 S. Ct. 841, 849 (2010). 

To succeed on a claim of ineffective assistance of counsel, a defendant has the

burden of showing (1) trial counsel was deficient and (2) the defense was prejudiced

as a result. Strickland, 466 U.S. at 687. To demonstrate deficient performance, a

defendant must show "counsel's representation fell below an objective standard of

reasonableness." Id. at 687–88. To show prejudice, "[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. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id. at 694.

A. Failure to object to Pruetting's motel testimony

We agree with the district court that the failure of Cochran's trial counsel to

object to Pruetting's motel testimony does not entitle Cochran to habeas relief. Even

if we assume that Pruetting's motel testimony constituted hearsay and that the failure

of Cochran's trial counsel to object constituted deficient performance, there is no

reasonable probability the outcome of Cochran's trial would have changed had

Pruetting's motel testimony been disallowed. 

We acknowledge Cochran's argument that Pruetting's motel testimonyimpacted

the credibility of Cochran's entire statement to the police. However, as we note

above, a state court's determination is not unreasonable simply because we might

have reached a different conclusion. See Wood, 130 S. Ct. at 849. The state court

determined that Cochran failed to prove prejudice because Pruetting's motel

testimony did not specifically relate to the time frame of the crimes. The state court

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also noted Jackie Reed's testimony—that she and Cochran spent the night of June 14

in a motel—supported Cochran's statement to police. On these facts, we cannot say

the state court's determination that Cochran failed to prove prejudice was contrary to

Strickland. Pruetting's motel evidence consisted of one short statement regarding the

outcome of police inquiries. Considering the significant body of testimony from

Williams, Mitchell, Mary Reed, additional state witnesses, and four additional

defense witnesses, we find no reasonable probability that the admission of Pruetting's

motel evidence altered the outcome of Cochran's trial. 

B. Failure to investigate Green as a witness

We find no basis on which to upset the state court's determination that Cochran

failed to carry his burden of proving his trial counsel did not investigate Green. To

prove his trial counsel did not investigate Green, Cochran relies on Green's testimony

that no one from the public defender's office contacted Green between June 4, 1996

and the end of February 1998. The state court noted that Green was incarcerated at

the time of Cochran's trial. It also cited the testimony of Cochran's trial counsel

regarding her general practice of always interviewing alibi witnesses and the

difficulties of procuring testimony from potential witnesses who were incarcerated

and represented by attorneys. On this record we cannot say the state court's

determination was unreasonable. The single claim that Green was not contacted by 5

Cochran's trial counsel, even if accepted, does not establish that Cochran's trial

counsel failed to investigate Green. Cochran has not provided the clear and

Cochran claims that given the difficulties of locating evidence years after his

5

trial, the state court held him to an "impossible" standard of proof when it determined

he had failed to prove his trial counsel did not investigate Green. However, the fact

that gathering evidence of his trial counsel's performance was made more difficult by

the passage of time does not alter the legal standard of Strickland under which

Cochran bears the burden of proof. 

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convincing evidence we require to rebut the presumption that the state court's

determinations were correct. See 28 U.S.C. § 2254(e). 

Additionally, we find no reasonable probability that Green's testimony would

have changed the outcome of Cochran's trial. Based on the facts Burns reported to

police and the time police arrived at Hurt's home, it was not unreasonable for the state

court to determine that the crimes were committed around 6:30 P.M. on June 14. 

Assuming the crimes took place at 6:30 P.M., the time frame for Cochran's alibi was

covered by the testimony ofJackie and MaryReed. According to Green's deposition,

Green could only testify that Cochran visited him at some point in the early evening

of June 14. This evidence is not sufficiently strong to create a reasonable probability

that Green's testimony would have altered the outcome of Cochran's trial, especially

since Jackie and Mary Reed provided direct alibi testimony. Thus, the state court's

determination that Cochran failed to show prejudice was not contrary to or an

unreasonable application of federal law. 

III. 

For the reasons stated above, we affirm the district court's denial of Cochran's

petition. 

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