Billie Allen v. United State

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Steven M. Colloton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4428002] [14-3495]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3495
___________________________
Billie Jerome Allen,
lllllllllllllllllllllPetitioner - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 12, 2016
Filed: July 20, 2016
____________
Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Billie Jerome Allen was convicted on two charges arising from an armed bank
robbery that resulted in the death of a bank security guard, and he was sentenced to
death. He later moved to vacate his sentence under 28 U.S.C. § 2255 on several

Appellate Case: 14-3495

Page: 1

Date Filed: 07/20/2016 Entry ID: 4428002

grounds. The district court1 denied Allen’s motion. We granted a certificate of
appealability on one question: Whether Allen was denied effective assistance of
counsel when his trial counsel failed to object to the empaneling of an anonymous
jury. We conclude that counsel’s failure to argue for an extension of the law to forbid
the jury procedures in Allen’s case did not constitute ineffective assistance of
counsel, and we therefore affirm.
In 1997, a grand jury charged Allen with killing a bank security guard in the
course of an armed bank robbery, see 18 U.S.C. § 2113(a), (e), and using and carrying
a firearm during and in relation to an armed bank robbery that resulted in a death by
murder. See 18 U.S.C. § 924(c)(1), (j)(1). The government filed a timely notice of
intent to seek the death penalty.
Before jury selection, in accordance with 18 U.S.C. § 3432, the district court
ordered disclosure of the names and addresses of all venirepersons to Allen’s counsel
and the government. Each venireperson was given an identifying number, but the
parties did not know which number was assigned to which name. The parties also
received detailed questionnaires that the prospective jurors completed. On those
documents, the jurors were identified only by number. Before voir dire, the court
informed the prospective jurors that they would be identified only by number during
court proceedings. The parties then addressed the prospective jurors by number and
professed ignorance of their names. A jury was seated based on the use of numbers,
and the case proceeded to trial in February 1998. The jury ultimately convicted Allen
on both counts, and he was sentenced to death.
This court affirmed Allen’s convictions and sentences on direct appeal. United
States v. Allen, 406 F.3d 940, 942 (8th Cir. 2005) (en banc). Allen sought relief under

1

The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
-2-

Appellate Case: 14-3495

Page: 2

Date Filed: 07/20/2016 Entry ID: 4428002

28 U.S.C. § 2255, and the district court denied the motion. Allen v. United States,
No. 4:07CV00027 ERW, 2014 WL 2882495, at *160-61 (E.D. Mo. June 25, 2014).
This court then granted a certificate of appealability on the question raised here.
Allen contends that his counsel was ineffective under the Sixth Amendment for
failing to object to the empaneling of an anonymous jury. He argues that the district
court erred in denying the claim and, at a minimum, should have held an evidentiary
hearing to inquire into counsel’s thought process. We review the district court’s legal
conclusions de novo. The decision to resolve a § 2255 motion without a hearing is
reviewed for abuse of discretion, but whether a hearing was necessary depends in part
on our de novo review of the court’s ruling on the merits of the claim. Jeffries v.
United States, 721 F.3d 1008, 1014 (8th Cir. 2013).
To establish a violation of the Sixth Amendment right to effective assistance
of counsel, Allen must show that his trial counsel’s performance was deficient and
that Allen suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687
(1984). Our scrutiny of counsel’s performance is “highly deferential,” id. at 689; the
movant must show that counsel’s performance fell “outside the wide range of
professionally competent assistance” that is sufficient to satisfy the Sixth
Amendment. Id. at 690. The failure of counsel to anticipate a rule of law that has yet
to be articulated does not render counsel’s performance professionally unreasonable.
Fields v. United States, 201 F.3d 1025, 1027-28 (8th Cir. 2000); see New v. United
States, 652 F.3d 949, 952 (8th Cir. 2011); Anderson v. United States, 393 F.3d 749,
754-55 (8th Cir. 2005).
The dispute in this case centers on whether counsel should have objected to the
empaneling of an “anonymous” jury. This court has approved the use of anonymous
juries in certain circumstances and set forth factors to guide a determination about
whether such a procedure is warranted. United States v. Darden, 70 F.3d 1507, 153233 (8th Cir. 1995). Allen argues that his counsel should have objected to the use of
-3-

Appellate Case: 14-3495

Page: 3

Date Filed: 07/20/2016 Entry ID: 4428002

numbers to identify the jury on the ground that the procedure made the jury
“anonymous,” and that the circumstances of this case did not justify the procedure.
He contends that the use of numbers prejudiced his defense because the practice led
the jury to believe that he was dangerous.
To examine the reasonableness of counsel’s performance, we must consider the
state of the law at the time of trial concerning whether a jury was properly
characterized as “anonymous.” The two leading cases in the area were United States
v. Lee, 886 F.2d 998 (8th Cir. 1989), and Darden, decided in 1995. In Lee, the trial
judge assigned numbers to each member of the venire during jury selection and said
that all references to the jurors would be by numbers. The defense possessed the
names of the jurors, but it is unclear from the decision whether counsel knew which
number corresponded to which name. On appeal, the defendants argued that the use
of numbers to identify the jurors was an unconstitutional “anonymous” jury. This
court rejected the claim, holding that there was “no prejudice in the court’s
procedure” because “defendants’ counsel were provided with the names of the
jurors.” Id. at 1001-02. The court in Darden then ruled that a jury was “anonymous”
when a trial judge refused to disclose the names of the venirepersons to the parties.
70 F.3d at 1532.
Given the state of the law at the time of trial, it was not professionally
unreasonable for counsel to forego an objection to the district court’s procedure for
identifying the jurors. Lee held that where a district court disclosed the names of
jurors to defense counsel, but then identified the jurors in court only by number, there
was “no prejudice in the court’s procedure.” 886 F.2d at 1001-02. It was unsettled
whether Lee should be limited to a case where the court also provides defense counsel
with a list that shows which number has been assigned to which named juror. The
opinion in Lee did not explain whether counsel possessed that information. Allen’s
counsel might have urged the district court to construe Lee narrowly and to extend
Darden to a case where counsel was provided with the names of jurors but did not
-4-

Appellate Case: 14-3495

Page: 4

Date Filed: 07/20/2016 Entry ID: 4428002

know which name matched which numbered juror in the courtroom. But the failure
of counsel to argue for an extension of the law or a novel interpretation of circuit
precedent is not constitutionally deficient performance. New, 652 F.3d at 952-53;
Anderson, 393 F.3d at 754-55; Fields, 201 F.3d at 1027-28.
Allen complains that the district court at least should have held an evidentiary
hearing to determine why trial counsel declined to object to the jury procedure. A
petitioner is entitled to an evidentiary hearing on a § 2255 motion “[u]nless the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). But “no hearing is required where the
claim is inadequate on its face.” New, 652 F.3d at 954 (quotation omitted).
“The Strickland test . . . is an objective one; as long as counsel performed as
a competent lawyer would, his or her detailed subjective reasoning is beside the
point.” Cofske v. United States, 290 F.3d 437, 444 (1st Cir. 2002); see Thomas v.
Varner, 428 F.3d 491, 500-01 & n.10 (3d Cir. 2005); Chandler v. United States, 218
F.3d 1305, 1315 & nn. 16-17 (11th Cir. 2000) (en banc); Bonin v. Calderon, 59 F.3d
815, 838 (9th Cir. 1995). “The relevant question is not whether counsel’s choices
were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S.
470, 481 (2000). In light of the circuit precedent in Lee and Darden, it was
objectively reasonable for trial counsel to acquiesce in the district court’s jury
procedure. As in Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002), where
a movant unsuccessfully attacked counsel’s performance for failing to anticipate
Apprendi v. New Jersey, 530 U.S. 466 (2000), no evidentiary hearing was necessary
to resolve the claim.
The judgment of the district court is affirmed.
______________________________

-5-

Appellate Case: 14-3495

Page: 5

Date Filed: 07/20/2016 Entry ID: 4428002