United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2772

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Leamon White, *

*

Petitioner - Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Don Roper, *

*

Respondent - Appellant. *

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Submitted: May 11, 2005

Filed: August 2, 2005

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Before LOKEN, Chief Judge, BEAM and MELLOY, Circuit Judges.

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LOKEN, Circuit Judge.

Leamon White was convicted of first-degree murder and sentenced to death by

a Missouri state court in 1989. The Supreme Court of Missouri affirmed his

conviction and sentence and the denial of state post-conviction relief. State v. White,

813 S.W.2d 862 (Mo. banc 1991), cert. denied, 502 U.S. 1103 (1992); State v. White,

873 S.W.2d 590 (Mo. banc 1994); White v. State, 939 S.W.2d 887 (Mo. banc), cert.

denied, 522 U.S. 948 (1997). White then filed this petition for a federal writ of

habeas corpus, which the district court denied. White appealed, and we held that

certain constitutional issues were not procedurally barred from federal habeas review.

White v. Bowersox, 206 F.3d 776 (8th Cir.), cert. denied, 531 U.S. 917 (2000). After
1

The HONORABLE ORTRIE D. SMITH, United States District Judge for the

Western District of Missouri.

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a second appeal, we concluded that the district court had misconstrued our prior

remand order. We again remanded the case, directing the court “to decide on their

merits all claims alleged in the petition for writ of habeas corpus, not previously

decided on their merits.” White v. Luebbers, 307 F.3d 722, 731 (8th Cir. 2002), cert.

denied, 538 U.S. 981 (2003).

On remand, the district court1

 held an evidentiary hearing on the remaining

claims. In a thorough opinion, the court granted the writ, concluding that White’s

trial counsel provided ineffective assistance in failing to investigate and present

exculpatory testimony by two witnesses in the guilt phase, and in failing to present

mitigating evidence in the penalty phase. The State of Missouri appeals only the guilt

phase determination, conceding that White is entitled to penalty phase relief. On

appeal, the State argues that White failed to demonstrate counsel’s constitutionally

deficient performance, and that the district court misapplied the prejudice standard

of Strickland v. Washington, 466 U.S. 668 (1984). Because the Supreme Court of

Missouri did not rule on the merits of this ineffective assistance claim after an

evidentiary hearing, there is no state court ruling to which we must defer under 28

U.S.C. § 2254(d). After careful review of the record, we affirm.

I.

We briefly recite the facts critical to this appeal; additional background facts

were detailed in our earlier opinions. In the early morning hours of January 6, 1987,

three men went to the home of Don Wright and his girlfriend, Carol Kinney, to obtain

crack cocaine. The trio murdered Wright and attempted to murder Kinney and a

guest, Ernest Black. Kinney and Black survived and identified White as one of the

three perpetrators at trial. The other two assailants were Roger Buckner, who was
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found guilty after a bench trial in which the death penalty was waived, and Cleveland

Ford, who pleaded guilty to a non-capital offense. White’s defense at trial was that

Kinney and Black were mistaken in identifying White and that the third assailant was

in fact a Jamaican drug trafficker named A.J. Constantine. Though other witnesses

linked White to Buckner and Ford and tended to support the testimony of Kinney and

Black, no physical evidence linked White to the crime scene. 

Kinney’s two young sons, Deonta and Raymond, were in the house at the time

of the crime and saw the assailants. Both boys testified at Buckner’s trial, which took

place prior to White’s trial. Both boys testified that one assailant spoke with a

Jamaican accent and was known as “A.J.” Deonta identified a picture of Constantine

as A.J. Raymond could not identify the picture of Constantine as A.J. At White’s

trial, Raymond was called as a defense witness. He testified that White was not an

assailant but again could not identify Constantine as the third killer. Deonta was not

interviewed by trial counsel and did not testify. He would have testified that White

was not an assailant and would have identified Constantine as the third killer. 

Earlier on the night of the murder, the victims of the attack -- Wright, Carol

Kinney, Black, Deonta, and Raymond -- were at the home of Dorothy Merrell and

Carol’s brother, Ben Kinney, who ran a crack house. In the district court’s

evidentiary hearing, Merrell testified that Buckner and a companion arrived looking

for drugs while the others were there. Wright said he had drugs at his house and

arranged to meet with Buckner at Wright’s house later that night. Merrell testified

that Buckner’s companion was a Jamaican named Jay or A.J. Constantine. Similarly,

Deonta told police after the attack that A.J. had been with Buckner at Merrell’s house

before the two came to Wright’s house. Neither Deonta nor Mrs. Merrell knew

White, and neither saw him on the night of the murder. Merrell was neither

interviewed by defense counsel nor called as a witness at White’s trial. 
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White’s trial counsel, Robert Duncan, died in 1996, before the district court’s

evidentiary hearing. Second chair John O’Connor and Duncan’s son, the defense

investigator, both testified at the hearing. The district court concluded that counsel

failed to conduct an adequate investigation because Duncan did not interview Deonta

Kinney and Dorothy Merrell, did not attend Buckner’s trial, and did not have copies

of the boys’ deposition transcripts from Buckner’s case until the eve of trial. Lacking

this important exculpatory information, counsel failed to call these two witnesses,

who would have directly supported the defense theory of mistaken identification:

Deonta’s testimony directly implicated Constantine and exculpated

[White]. Deonta’s identity was known to counsel, a reasonable

investigation would have revealed his identification of Constantine as

the man who entered with Buckner, and no plausible explanation has

been offered as to why Deonta could not or should not have been called.

Coupled with this failure is the failure to call Dorothy Merrell

(“Dorothy”) to testify. . . . Dorothy identified Constantine’s picture as

a person she knew as a Jamaican drug dealer who went by the name

“Jay” or “A.J.” . . . Her testimony places Buckner and Constantine

together shortly before the crime, and describes circumstances that led

to Buckner’s and Constantine’s departure to Wright’s house. Dorothy’s

potential for having information was known to counsel . . . .

White v. Roper, No. 97-1663, slip op. at 15-16 (W.D. Mo. June 14, 2004). The

district court concluded that, by failing to investigate and call these two critical

witnesses, “trial counsel’s performance was so deficient as to fall below an objective

standard of reasonable competence,” and this deficient performance prejudiced

White’s defense. Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995) (quotation

omitted), cert. denied, 517 U.S. 1214 (1996). 

On appeal, the State argues that the district court’s decision is contrary to the

principle that trial counsel’s failure to call witnesses, in this case Deonta Kinney and
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Dorothy Merrell, is presumed to be reasonable trial strategy. See Fretwell v. Norris,

133 F.3d 621, 627 (8th Cir.), and cases cited, cert. denied, 525 U.S. 846 (1998). The

principle is certainly sound, but we disagree that it applies in this case. The strength

of the presumption turns on the adequacy of counsel’s investigation:

strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support

the limitations on investigation.

Strickland, 466 U.S. at 690-91. Here, the record establishes that counsel’s

investigation was too superficial to reveal the comparative strength of Raymond’s and

Deonta’s support for the defense of mistaken identification, and to discover the

powerful support that Dorothy Merrell could provide for the defense that Constantine

was the third assailant. In these circumstances, the district court properly found it

inexplicable that only the boy with the weaker supporting testimony was called, rather

than both, and properly found no apparent justification for failing to call Merrell. In

other words, the presumption of sound trial strategy founders in this case on the rocks

of ignorance, as in Wiggins v. Smith, 539 U.S. 510, 527-28 (2003).

II.

The State further contends that the district court misapplied Strickland’s

prejudice standard in concluding: “Ultimately, the Court is not confident in the jury’s

verdict and believes there is a reasonable possibility that the outcome would have

been different had Deonta and Dorothy testified.” White v. Roper, slip. op. at 16

(emphasis added). The State properly notes that the Strickland prejudice standard

requires proof of a reasonable probability and argues that the difference in

terminology is significant enough to constitute reversible error. 
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Initially, we note that the district court, just three pages earlier in its 46-page

opinion, stated the correct “reasonable probability” standard three times and quoted

the Supreme Court’s summary of that standard, “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Wiggins, 539 U.S.

at 534, quoting Strickland, 466 U.S. at 694. The district court recognized Strickland

as the governing authority and framed its analysis accordingly. The court focused on

the ultimate Strickland prejudice inquiry when it concluded, taking into account the

omitted testimony of Deonta Kinney and Dorothy Merrell, that it was “not confident

in the jury’s verdict.” Thus, despite one mistake in the court’s opinion, we are

satisfied that it knew and correctly applied the familiar Strickland prejudice standard.

In resolving a similar issue in Woodford v. Visciotti, 537 U.S. 19, 23-24

(2002), the Supreme Court observed:

The California Supreme Court’s opinion painstakingly describes the

Strickland standard. Its occasional shorthand reference to that standard

by use of the term “probable” without the modifier may perhaps be

imprecise, but if so it can no more be considered a repudiation of the

standard than can this Court’s own occasional indulgence in the same

imprecision.

Although the district court in this case used the wrong word, rather than an imprecise

shorthand, like the Supreme Court in Woodford we conclude that the district court’s

single mistake in articulating the Strickland prejudice standard was not a repudiation

of that standard. Therefore, on this record, we affirm the court’s conclusion that

White is entitled to guilt phase habeas relief under Strickland because he proved that

he was prejudiced by counsel’s deficient performance.

The judgment of the district court is affirmed.

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