                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3078
                                  ___________

Richard Dale Hoon,                     *
                                       *
             Petitioner/Appellee,      *
                                       *
       v.                              * Appeal from the United States
                                       * District Court for the
State of Iowa,                         * Southern District of Iowa.
                                       *
             Respondent/Appellant,     *
                                       *
John F. Ault, Warden,                  *
                                       *
             Respondent.               *
                                  ___________

                            Submitted: May 13, 2002

                                 Filed: December 19, 2002
                                  ___________

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      The State of Iowa appeals from the district court’s grant of Richard Dale
Hoon’s petition for writ of habeas corpus. We reverse and remand with directions to
dismiss the petition.
                                          I.

      On October 22, 1994, three men robbed Ailleen Foley in her Davenport, Iowa
home. The men knocked at Foley’s door, and when she answered the door they
violently threw open the storm door and two of them entered the house. One of the
men threatened Foley with a sawed-off shotgun while the other searched the house.
After taking her purse, which contained, among other things, Foley’s rosary and
rosary case, they left. The men wore masks made of maroon cloth that covered their
noses and mouths but left their eyes exposed.

       There were no developments in the case until February 1, 1995, when
Davenport Police met Timothy Caskey at a Davenport motel. Caskey had Foley’s
rosary and rosary case in his possession at the time. Later that day, Caskey confessed
to the robbery, stating that he and David Carney were the two men who entered
Foley’s house and that Carney threatened Foley with the shotgun while Caskey
searched the house. Caskey told the detectives that on the evening of the robbery he
and his then girlfriend, Chandra Wilson, were on the levee near a river boat. They
were later joined by two of Caskey’s friends. After taking Ms. Wilson to her home,
Caskey returned to the levee, where he again met up with the two friends. The three
men then drove around the city looking for someone to rob. After seeing the elderly
Mrs. Foley sitting near the picture window in her home, the three decided that she
would be a suitable victim. In subsequent photo arrays, at deposition, and at trial,
Foley identified Hoon and Caskey as the men who entered her house.

       Caskey and Hoon were tried jointly. Hoon’s attorney and the prosecutor
agreed that the prosecutor would admit Caskey’s confession through the testimony
of two police detectives, but that they would not mention Hoon’s name. When the
detectives testified regarding Caskey’s confession, they used words such as “the other
individual” or “the other subject” in place of Hoon’s name. They testified, among
other things, that Caskey stated that he and two other individuals met on a levee near

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Davenport and planned the crime, that they stole a maroon Chevrolet Malibu, that the
three of them drove around in the Malibu looking for someone to rob, and that they
used the headliner of the car to make masks. While the detectives never mentioned
Hoon’s name in their testimony, they stated that Caskey identified Carney as one of
the other men.

       Caskey’s confession was verified at trial in several ways. First, when the
Malibu was recovered, Foley’s ATM card was recovered from beneath the front seat.
Second, Caskey had Foley’s rosary and rosary case in his possession. Third,
Chandra Wilson testified that Caskey, Carney, and Hoon had met on the levee earlier
in the evening and that Carney had driven away in a maroon Malibu.

       The Iowa Court of Appeals held that Hoon’s counsel was ineffective for failing
to object to the admission of Caskey’s confession. The state court held that allowing
the detectives to replace Hoon’s name with “the other individual” while other
evidence in the case identified Hoon as that individual violated Bruton v. United
States, 391 U.S. 123 (1968). The state court also held, however, that Hoon suffered
no prejudice from this failure because there was sufficient additional evidence to
convict him. Following the state court’s ruling, Hoon filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The district court held that the state
court’s finding of no prejudice was an unreasonable application of federal law and
granted the writ. The state now appeals.

                                         II.

       The sole issue we must decide is whether the district court properly concluded
that the holding of the Iowa Court of Appeals that Hoon’s counsel’s failure to object
to the admission of Caskey’s confession did not amount to ineffective assistance of
counsel was an unreasonable application of federal law. Because we conclude that



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the district court failed to give appropriate deference to the state court’s finding that
Hoon suffered no prejudice as a result of his counsel’s error, we reverse.

       We review the district court’s legal conclusions de novo and its findings of fact
for clear error. Hadley v. Groose, 97 F.3d 1131, 1134 (8th Cir. 1996).

        In ruling on a petition for habeas corpus, the scope of a federal court’s review
of a state court’s decision is extremely limited. As the Supreme Court recently stated,
“The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal
habeas court’s role in reviewing state prisoner applications in order to prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 122 S. Ct. 1843, 1849 (2002). A federal
court may grant a writ of habeas corpus to a state prisoner if the state court’s decision
was either (1) contrary to, or (2) an unreasonable application of federal law as
determined by the Supreme Court. Siers v. Weber, 259 F.3d 969, 972 (8th Cir. 2001);
28 U.S.C. § 2254(d)(1). Hoon does not claim that the Iowa state court’s decision was
contrary to clearly established federal law, but maintains that the state court
unreasonably applied federal law to his case. The focus under the unreasonable
application test is “whether the state court’s application of clearly established federal
law is objectively unreasonable.” Bell, 122 S. Ct. at 1850. The Supreme Court has
repeatedly cautioned that an unreasonable application is different from an incorrect
one. Id.; Williams v. Taylor, 529 U.S. 362, 409 (2000).

       The clearly established federal law to be applied in Hoon’s case is found in
Strickland v. Washington, 466 U.S. 668 (1984). To show his counsel was ineffective
under the Strickland standard, Hoon must show that his attorney’s performance was
deficient and that he suffered prejudice as a result. Siers, 259 F.3d at 974 (citing
Strickland, 466 U.S. at 687). We need not inquire into the effectiveness of counsel,
however, if we determine that no prejudice resulted from counsel’s alleged
deficiencies. Strickland, 466 U.S. at 697; Siers, 259 F.3d at 974. To show prejudice,

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Hoon would have to show that “there is a reasonable probability that but for counsel’s
unprofessional errors, the result . . . would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Siers,
259 F.3d at 974 (quoting Strickland, 466 U.S. at 694). In evaluating the probability
of a different result, the court must consider the totality of the evidence. Id.

       The Iowa Court of Appeals did not engage in a lengthy discussion of its
prejudice analysis in its opinion. After citing Iowa Supreme Court decisions that set
forth the prejudice standard announced in Strickland, the court said:

      Despite the fact that error was not properly preserved with respect to the
      testimony given by the police detectives . . . we conclude that there was
      no prejudice entitling Hoon to a new trial on the robbery and burglary
      charges. There was enough other evidence in the record that would
      convict Hoon of these crimes.

      Presuming, as do we, that the Iowa Court of Appeals based its finding of no
prejudice upon a correct application of the Strickland standard, the district court
concluded that the finding of no prejudice was unreasonable, concluding that if
Caskey’s confession were properly redacted by removing all references to the
existence of a third person,1 the confession would no longer implicate Hoon at all.
The case would then come down to an evaluation of the credibility of the testimony

      1
        We note that the district court’s analysis of the necessary redactions appears
to follow the dissent in United States v. Logan, 210 F.3d 820 (8th Cir. 2000) (en
banc). The majority in Logan stated that “there is no violation where the confession
implicates the defendant only when linked to other evidence.” Id. at 822 (internal
quotation omitted). Thus, it appears that the only Bruton violation in Hoon’s trial
under our precedent was the failure to provide a limiting instruction, not the failure
to delete all references to Hoon’s existence from the confession. Id. at 822-23. We
need not decide how Logan applies to this case, however, because even under the
district court’s view of the proper redactions, the state court’s decision that Hoon
suffered no prejudice was reasonable.

                                         -5-
given by Caskey, who claimed the other man in the house was Carney, and that given
by Foley, who identified Hoon as the other man. The district court held that
“different juries could reasonably disagree on the question,” and that therefore there
was a reasonable probability that if Hoon’s counsel had objected to the introduction
of Caskey’s confession, Hoon would have been acquitted.

      The district court may have been correct that a jury could have found Caskey
more credible than Foley and therefore chosen to believe that Carney was the other
man in the house, but that alone is not sufficient to overturn the state court’s decision.
In order to succeed, Hoon

      must do more than show that he would have satisfied Strickland’s test
      if his claim were being analyzed in the first instance, because under §
      2254(d)(1), it is not enough to convince a federal habeas court that, in
      its independent judgment, the state-court decision applied Strickland
      incorrectly. Rather, he must show that the [Iowa] Court of Appeals
      applied Strickland to the facts of his case in an objectively unreasonable
      manner.

Bell, 122 S. Ct. at 1852 (internal citation omitted). Here, even though the district
court acknowledged the proper standard of review established in Williams, it did not
give the state court’s ruling proper deference, but appears to have granted the petition
based only on a difference “in its opinion of [the properly redacted confession’s]
probable effect on the outcome.” Siers, 259 F.3d at 975; see also Evans v. Rogerson,
223 F.3d 869, 871 (8th Cir. 2000) (“the district court put its own spin on the facts and
disregarded [the state court’s] reasonable view of them”).

       Under AEDPA, we must give substantial deference to the state court’s analysis
of the evidence, and the fact that evidence exists that might lead us to a different
conclusion is not sufficient for us to conclude that the Iowa court’s application of the



                                           -6-
Strickland attorney-performance standard was objectively unreasonable.
Accordingly, the district court should not have granted the habeas petition.

        The judgment is reversed, and the case is remanded to the district court with
directions to dismiss the petition.

BRIGHT, Circuit Judge, dissenting.

       I respectfully dissent. When you ask the wrong question, you get a wrong
answer. I think the majority here has done just that in agreeing with the Iowa Court
of Appeals and reversing the thoughtful and incisive opinion of the federal district
judge.

       The majority adopts the same question for review as the Iowa court, namely
whether Richard Dale Hoon showed that “there is a reasonable probability that but
for counsel’s unprofessional errors, the result . . . would have been different.” Slip
Op. at 5 (citing Siers v. Weber, 259 F.3d 969, 974 (8th Cir. 2001)). Both conclude
that no prejudice existed because “[t]here was enough other evidence in the record
that would convict Hoon of these crimes.” (J.A. at 168.)

      The majority here reverses the district court on the ground that “the district
court failed to give appropriate deference to the state court’s finding that Hoon
suffered no prejudice as a result of his counsel’s error.” Slip Op. at 4. I believe that
the majority applied an incorrect standard. The standard is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668,
694 (1984) (cited in Hoon v. State, No. 4-99-CV-90578 (Ia. 2001), J.A. at 224). A
reasonable probability is less than a preponderance. See Williams v. Taylor, 529 U.S.
362, 405-06 (2000). Therefore, I believe the standard is not the “could have
convicted” standard used by the majority, but rather the question to be answered from

                                          -7-
the record is whether the Iowa Court of Appeals unreasonably concluded that a
complete redaction of Hoon’s co-defendant’s confession did not create a reasonable
likelihood that the jury would find reasonable doubt as to Hoon’s guilt.

      The district court undertook the correct inquiry, and considered what the
evidence would look like absent trial counsel’s deficient performance. The district
court undertook the analysis as set out in Strickland:

      When a defendant challenges a conviction, the question is whether there
      is a reasonable probability that, absent the errors, the factfinder would
      have had a reasonable doubt respecting guilt. . . .

              In making this determination, a court hearing an ineffectiveness
      claim must consider the totality of the evidence before the judge or jury.
      Some of the factual findings will have been unaffected by the errors, and
      factual findings that were affected will have been affected in different
      ways. Some errors will have had a pervasive effect on the inferences to
      be drawn from the evidence, altering the entire evidentiary picture, and
      some will have had an isolated, trivial effect. . . . Taking the unaffected
      findings as a given, and taking due account of the effect of the errors on
      the remaining findings, a court making the prejudice inquiry must ask
      if the defendant has met the burden of showing that the decision reached
      would reasonably likely have been different absent the errors.

Strickland, 466 U.S. at 695-96 (emphasis added).

      Here, the federal district court determined that, had Hoon’s counsel made sure
Timothy Caskey’s confession was correctly redacted, under Iowa law the confession
could not have even mentioned the existence of the third person (Hoon). In addition,
the court would have been required to issue a limiting instruction to the jury. These
changes would indeed appear to “alter[] the entire evidentiary picture.” Id. at 696.
The district court, following Strickland’s dictates, noted what evidence was
untouched by the change and what evidence was altered. After redacting Caskey’s

                                         -8-
confession to include no reference to Hoon, Ailleen Foley’s testimony that Caskey
and Hoon were the two intruders would be directly inconsistent with Caskey’s
statement that he and David Carney (with no mention of a third person) were the
intruders. In addition, the jury would be instructed that Caskey’s confession, which
did not mention the existence of a third intruder, could not be used against Hoon.

      The federal district court noted Foley’s apparent confusion over who was the
gunman, her several statements that she did not get a good look at the non-gunman,
and her statements implying fear and anxiety during the break-in, would cast some
doubt on her credibility. The court determined that the credibility battle between
Caskey’s confession and Foley’s testimony, along with the jury instruction that the
confession should not have been used against Hoon, was sufficient to create a
reasonable probability that a jury would have reasonable doubt as to Hoon’s guilt.
(J.A. at 226.) Therefore, the district court properly concluded that there was a
reasonable probability that Hoon would have been acquitted absent the violation,
thereby showing prejudice.

       I agree with the district court that the Iowa court was unreasonable in
concluding that correcting for the Bruton violation does not “undermine confidence
in the outcome” of the trial. Therefore, the Strickland requirements have been met
here. I am mindful of the deference due a state court under the unreasonable
standard, but I think the state court here unreasonably applied federal law.

      Therefore, I respectfully dissent and would affirm the district court’s decision.

      A true copy.

            Attest:

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

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