                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3217
                                   ___________

Robert W. Odem,                         *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa
Frank X. Hopkins, Warden,               *
Thomas J. Miller, Attorney              *
General of the State of Iowa,           *
                                        *
             Appellants.                *
                                   ___________

                             Submitted: May 14, 2004
                                 Filed: September 10, 2004
                                  ___________

Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,1 District Judge.
                              ___________

DORR, District Judge.

      Appellants appeal from the decision of the district court granting Robert W.
Odem’s amended petition for habeas corpus relief on a claim of ineffective assistance
of counsel. For the reasons stated below, we reverse the district court.




      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, sitting by designation.
                                    I. Background

       Robert W. Odem (“Odem”) was convicted of two counts of first degree murder
for the murders of Bill and Kimberly Smith and received a sentence of life without
the possibility of parole. Odem filed a direct appeal, which was denied, and a state
postconviction action, which was also denied, as was the related appeal. Odem filed
a second state postconviction action and appeal, which were both denied. Odem then
filed this action, pursuant to 28 U.S.C. § 2254, on August 24, 1992, and filed an
amended petition on September 23, 1996.

       The district court granted relief on a Brady claim and held that the prosecution
failed to disclose evidence relating to a head hair found in a red jacket owned by
Odem’s brother. On appeal, this Court allowed the record to be expanded to include
evidence that showed the information concerning the jacket had been disclosed to
Odem’s counsel prior to his trial. The case was then remanded to the district court
to reconsider its Brady ruling in light of these materials.

       On remand, the district court again granted the writ, this time on the basis that
the disclosures, made six weeks apart, were not done in a clear enough manner to
comply with Brady. On appeal, this Court reversed the district court’s finding of a
Brady violation and the granting of Odem’s habeas corpus petition, but ordered a
remand for consideration of Odem’s ineffective assistance of counsel claim.

       On remand, the district court allowed Odem to amend his petition to include
for the first time his claim that defense counsel at trial had been ineffective for failing
to use at trial the evidence that the red jacket owned by Odem’s brother, Richard
Odem, had a hair inside it that was similar to Kimberly Smith’s hair. The district
court granted relief to Odem finding that defense counsel provided ineffective
assistance of counsel. The instant appeal followed.



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                                       II. Facts

       As stated in our previous opinion in this case, Bill Smith and his wife Kimberly
were murdered at their home the evening of December 26, 1980. The two
eyewitnesses to that event were Bill Smith’s children from a former marriage, Chad,
age 8, and Steven, age 5, who testified that they saw a man wearing a red jacket and
blue jeans come into the house. Chad at first told the police that there was some
white cursive writing on the jacket with the letters “C,” “R,” “H,” and “A,” but at trial
he testified that there was no lettering on the jacket. A few minutes after the boys saw
the man enter the premises, they heard gunshots from their father’s bedroom, and in
the morning they went to alert a neighbor. When the Iowa Department of Criminal
Investigation (DCI) arrived, Bill and Kimberly Smith were found dead on the floor
from two gunshot wounds each. The DCI found no evidence connecting Odem to the
crime scene. Evidence at trial showed that on the night of the murders, Odem was
wearing blue jeans and a red jacket with no writing, and that for most of the evening
he had been bar hopping.

       In early January 1981, at the DCI’s request, Odem turned over a .22 caliber
rifle that Odem’s brother, Richard, owned. Odem stated that he had been in
possession of the rifle since 1979 and from November to the last week of December
1980, the gun was in the back of his seldom locked car. After this period, Odem
indicated that he took the gun inside his house and hung it on the wall. Ballistics
tests conclusively proved that this was the weapon that killed Bill and Kimberly
Smith.

       In a DCI Report dated February 27, 1981, the DCI summarized their analysis
of a red nylon jacket that belonged to Odem’s brother, Richard, as follows:




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      BD The red nylon jacket and (Item BD) was examined for the presence of
      blood splatters or stains and none were detected. Several hairs were recovered
      from the inside of the jacket.
      BD vs Z & AJ A light colored head hair recovered from the insides of the red
      jacket (Item BD) was compared with the known head hair from KIMBERLY
      SMITH (Item AJ). Similarities were noted between the jacket (Item BD) and
      the known hair from KIMBERLY SMITH (Item AJ) in color diameter, length
      and microscopic characteristics. Based on this comparison, it is the opinion of
      this examiner that the hair from the red jacket (Item BD) may have originated
      from the same sources as the known hair (Item AJ). It should be noted that
      hairs lack sufficient characteristics to affect a positive identification.
      The known hair from WILLIAM SMITH (Item Z) was determined to be
      dissimilar to the hair recovered from the red jacket. (Item BD).

A second page of this DCI report references Exhibit BD as “One (1) red ‘Aristo Jac’
Jacket with lettering “U NEED A CAR WASH.’”

       Odem’s counsel’s billing records indicate that he received and reviewed a copy
of the DCI report before trial on April 6, 1981. Six weeks later, on May 19, 1981, the
State sent Odem’s counsel a 12-page letter explaining a variety of potentially
exculpatory evidence. On page 11 of this letter, the State indicated that it had seized
Richard Odem’s red jacket with “You Need a Car Wash” printed in black letters on
the back.

       During the trial, Odem’s counsel did not attempt to put Richard Odem’s jacket
into evidence or make the connection between Richard’s jacket and the DCI Report
concerning the hair found inside the jacket.




                                         -4-
                                   III. Discussion

    The issue before us is whether the district court erred in granting relief on
Odem’s ineffective assistance of counsel claim. We conclude that it did.

       Appellants present two primary arguments – one is procedural, the other is
substantive. First, Appellants argue that the district court should have found that
Odem’s current ineffective assistance of counsel claim was procedurally defaulted
because Odem never presented such claim to an Iowa state court. In addition,
Appellants contend that the district court erred in allowing Odem to amend his
petition after remand over the objections of Appellants. Second, Appellants argue
that the district court erred in finding that Odem’s trial counsel’s performance fell
below the objective standard of reasonableness because of his failure to use at trial
the evidence that Odem’s brother’s red jacket had a head hair in it that was similar to
Kimberly Smith’s hair. Further, Appellants argue that the district court erred in
conducting the prejudice analysis called for by Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We will address Appellants’
substantive argument first and will assume, solely for the purpose of addressing the
substantive argument, that there is no procedural bar to Odem’s claim.

        A claim of ineffective assistance of counsel is a mixed question of fact and law.
Id. at 698. Thus, the district court’s factual findings are reviewed for clear error, and
its legal conclusions are reviewed de novo. Reed v. Norris, 195 F.3d 1004, 1006 (8th
Cir. 1999); see also Pruett v. Norris, 153 F.3d 579, 584 (8th Cir. 1998); Wilson v.
Armontrout, 962 F.2d 817, 819 (8th Cir. 1992). A state court’s findings of fact made
in the course of deciding a claim of ineffective assistance of counsel are presumed to
be correct. Wilson, 962 F.2d at 819.




                                          -5-
A. Substantive Ruling

       In order to prevail on a claim of ineffective assistance of counsel, a defendant
must show that the performance of his counsel was deficient and that he was
prejudiced by the deficient performance. Strickland, 466 U.S. at 687. To establish
that his counsel’s performance was deficient, the defendant must show that counsel’s
representation “fell below an objective standard of reasonableness.” Id. at 688. To
establish prejudice, the 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.” Id. at 694.

       When addressing the adequacy of counsel’s performance, we must be “highly
deferential” and make “every effort [] to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689. There is a strong
presumption that a counsel’s performance “falls within the wide range of reasonable
professional assistance.” Id.

       Error by counsel, even if professionally unreasonable, does not necessarily
require that a judgment in a criminal proceeding be set aside if the error had no effect
on the judgment. Id. at 691. In an ineffectiveness claim, a defendant must
affirmatively show prejudice. Id. at 693. It is not sufficient for a defendant to show
that the error(s) had some “conceivable effect” on the result of the proceeding
because not every error that influences or affects a proceeding undermines the
reliability of the outcome of the proceeding. Id. The defendant must show that
because of counsel’s error, there is a reasonable probability that the result of the
proceeding would have been different. Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.




                                          -6-
       It is undisputed that the billing records of Odem’s trial counsel indicate that he
received and reviewed a copy of the DCI report. It is also undisputed that six weeks
later he received the letter from the State, revealing that the state had seized Richard
Odem’s red jacket, which matched the jacket described in the DCI Report. We have
previously stated that the connection between these two disclosures was “readily
apparent.” Odem v. Hopkins, 192 F.3d 772, 777 (8th Cir. 1999). Appellants argue
that it was a tactical decision for defense counsel not to offer the evidence that
Richard Odem’s red jacket had a hair inside of it that was similar to Kimberly Smith’s
hair. Appellants claim it would have been directly contrary to the strong alibi of
Odem’s brother as well as the strategy employed at trial that Odem was not “trying
to point the finger to somebody else.” Appellants further suggest that the district
court refused to accord the actual trial strategy employed by defense counsel the
appropriate level of deference.

      Odem claims that his counsel at trial was ineffective for failing to present the
hair and jacket evidence. Odem argues that it is clear that trial counsel did not
recognize the significance of the information he apparently received and that his
counsel, and co-counsel both testified that they did not recall having this information.



       The district court found on remand that while Odem’s counsel, Mr. Pappas,
should have made the connection, he did not. The district court concluded that
because defense counsel did not present the existence of the other red jacket
containing a hair similar to Kimberly Smith’s to the jury it “robbed” the jury of
considering that issue and, therefore, undermined the confidence in the verdict. The
district court stated that it “finds it hard to envision any set of circumstances where
a defense lawyer, . . . would not use and push those facts” and concluded that Odem’s
defense attorney provided ineffective assistance of counsel.




                                          -7-
       We disagree. Defense counsel had received records regarding the red jacket
with the hair similar to Kimberly Smith’s hair. The evidence in the record is that
Richard Odem, the owner of the other red jacket, had an alibi for the night of the
murders and was reportedly in Iowa City, nearly 300 miles and six hours away from
Latimer, Iowa, where the murders occurred. In addition, the evidence is that the red
jacket owned by Richard Odem had black block lettering on the back with a cartoon-
style elephant and the words “U Need A Car Wash,” which is different from the
descriptions of the red jacket obtained from the Smith children. Alternatively, two
red nylon jackets were obtained from defendant Odem, and neither had any writing
or lettering on the back.

       Although the district court stated that it could not “envision any set of
circumstances” in which a defense lawyer would not use such evidence, the focus
when addressing the adequacy of counsel’s performance is on evaluating the conduct
from counsel’s perspective at the time. See Strickland, 466 U.S. at 689. Just because
defense counsel did not use the evidence of Richard Odem’s red jacket and the head
hair during Odem’s trial does not mean that counsel’s performance falls below an
objective standard of reasonableness. The evidence at the time of trial was that two
red nylon jackets with no lettering on their backs were obtained from Odem, the
children of the victim described the gunman’s jacket as red with no lettering, Odem
turned over to police the .22 caliber Winchester rifle that was conclusively
determined to be the murder weapon, Odem had purchased Remington ammunition
of the same type that was used in the murders, and Odem’s inconsistent report of his
whereabouts on the night of the murders boiled down to a night of bar-hopping. By
using the evidence about Richard Odem’s red jacket and the head hair similar to
Kimberly Smith’s hair, Odem would have been pointing the finger at his brother,
Richard Odem, who had an alibi. Based on the foregoing and the other evidence of
record, and considering defense counsel’s conduct based on his perspective at the
time, we find that the strong presumption that defense counsel’s performance “falls
within the wide range of reasonable professional assistance” is not overcome. See id.;

                                         -8-
see also Wilson v. Armontrout, 962 F.2d 817, 820 (8th Cir. 1992) (noting that a
defense counsel is not ineffective when the counsel does not present an “implausible
theory of defense” (quotations and citations omitted)).

       It is not necessary for us to consider the prejudice portion of the Strickland
analysis in light of our aforementioned finding. However, we have done so and find
that Odem has not shown that there is a “reasonable probability” that the result of the
trial would have been different had the connection between Odem’s brother’s red
jacket and the similar head hair been presented during trial.

       As previously discussed, a defendant must show that there is a “reasonable
probability” that the result of the trial would have been different to satisfy the
prejudice requirement under Strickland. See Strickland, 466 U.S. at 693. It is not
sufficient for a defendant to show that the error had some “conceivable effect” on the
result of the proceeding because not every error that influences a proceeding
undermines the reliability of the outcome of the proceeding. Id.

       There was extensive evidence adduced by the State at trial, including the facts
that Richard Odem had an alibi for the night of the murders, that the red jacket owned
by Richard Odem did not match the description given by the Smith children of the red
jacket worn by the gunman, that Odem was in possession of the murder weapon, and
that Odem’s alibi of bar-hopping for the night of the murders had gaps in it. We find
that even if the failure to use the evidence of Richard Odem’s red jacket and the head
hair was error, it was not so prejudicial so as to undermine the reliability of the trial
result. There was overwhelming evidence at trial of Odem’s guilt and Odem has
failed to show that there is a “reasonable probability” that the result of his trial would
have been different if the evidence of the other red jacket and the head hair had been
used. Therefore, we find that there was no prejudice by defense counsel’s failure to
use the evidence of the other red jacket and the head hair at trial.



                                           -9-
       Further, we note that at this stage, even if a new trial were ordered, it is
counterintuitive that the evidence of the red jacket owned by Richard Odem with the
head hair inside would be helpful to Odem. We are cognizant that the analysis under
Strickland requires that counsel’s conduct be judged under the then-existing
circumstances. However, if a new trial were ordered, it is highly unlikely that the
evidence of the red jacket owned by Richard Odem and related head hair would even
be admissible, much less that it would be favorable to Odem, because mitochondrial
DNA testing now confirms that the head hair found in the sleeve of Richard Odem’s
red jacket did not come from Kimberly Smith.

B. Procedural Default

      Having assumed that there was no procedural obstacle to Odem’s claim of
ineffective assistance, we have concluded that Odem’s claim of ineffective assistance
of counsel is without merit and does not rise to the level of constitutional error.
Therefore, we find that it is not necessary to address the merits of whether Odem was
procedurally barred from raising such claim in this federal habeas petition.

                                 III. Conclusion

      For the foregoing reasons, we conclude Odem’s claim of ineffective assistance
of counsel fails, the judgment of the district court in granting the writ of habeas
corpus is reversed, and the original conviction and sentence are reinstated.

                       ______________________________




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