                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                 No. 98-2451/2526
                                  ___________


Randall Steinkuehler,               *
                                    *
          Petitioner-Appellee,      *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * Northern District of Iowa.
Herb Meschner,                      *
                                    *
          Respondent-Appellant.     *
                                    *
                               ___________

                             Submitted: March 8, 1999

                               Filed:   May 6, 1999
                                    ___________

Before RICHARD S. ARNOLD and HANSEN, Circuit Judges, and STROM,*
      Senior District Judge.
                                     ___________

STROM, Senior District Judge.

      Randall Steinkuehler (petitioner), an Iowa inmate, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the
Northern District of Iowa after being convicted of first degree murder in an Iowa state


      *
       The HONORABLE LYLE E. STROM, Senior United States District Judge for
the District of Nebraska, sitting by designation.
court. Petitioner asserted eleven separate claims for relief. The District Court granted
petitioner relief on two ineffective assistance of counsel claims and denied the
remaining claims. Randall N. Steinkuehler v. Meschner, No. C94-4027DEO (N.D.
Iowa May 5, 1998) (judgment).          Herb Meschner, warden of the Iowa State
Penitentiary, appeals that part of the judgment granting relief, claiming the trial court
erred in finding that petitioner received ineffective assistance of counsel. Petitioner
cross-appeals the denial of his other claims. For reasons stated below, we affirm in
part, reverse in part, and remand for entry of judgment in accordance with this
opinion.


                                 I. BACKGROUND
      The district court thoroughly set forth the factual and procedural background
of this case in its decision below. See Id. (order). Briefly, the background necessary
to begin our discussion is as follows. At approximately 9:30 P.M. on December 9,
1987, after a long day of consuming large amounts of alcohol, petitioner shot and
killed his girlfriend's ex-husband, DeWayne Mohr, at a bar in Denison, Iowa. Less
than one-half hour later, petitioner went to the Crawford County Law Enforcement
Center and turned himself in. At trial, petitioner did not deny killing the victim.
Rather, he alleged his level of intoxication negated the specific intent required for
first-degree murder. Witnesses who either had observed the petitioner prior to or
after the shooting testified regarding petitioner’s level of intoxication. The jury found
petitioner guilty of first-degree murder.




                                            2
      Petitioner unsuccessfully appealed his conviction, State v. Steinkuehler, No.
88-1093 (Iowa Ct. App. Nov. 11, 1989), and was later denied state postconviction
relief. State v. Steinkuehler, 507 N.W.2d 716 (Iowa Ct. App. 1993).


                                  II. DISCUSSION
A.    Failure to Present Evidence
      The District Court granted petitioner's first claim for habeas relief. In that
claim, petitioner asserts his trial counsel provided ineffective assistance by failing to
question the jailer supervisor regarding pressure placed on her by the county sheriff
to alter her testimony, and by then failing to impeach the sheriff.


      When petitioner went to the Law Enforcement Center after the shooting, he
told Sharon Shields (Shields), the jailer supervisor, the police were looking for him.
Shields contacted the police and, while awaiting their arrival, observed the petitioner.
Prior to trial, petitioner's attorney deposed Shields. At the deposition, Shields
testified petitioner appeared dazed and incoherent when he arrived at the Law
Enforcement Center. She detected a strong alcohol odor and concluded he must have
been intoxicated. Shields had booked petitioner into jail on three prior occasions, yet
he did not recognize her. Ultimately, she concluded, based on her training and
experience, petitioner was in fact drunk and testified that a statement petitioner made
to a fellow employee would be thrown out of court.


      Immediately after the deposition, Thomas Gustafson (Gustafson), the county
attorney, informed Shields that Don Stehr (Stehr), the county sheriff and Shields'
boss, would hear about her testimony. Later that day, Gustafson wrote Shields a letter

                                           3
regarding her testimony and sent a copy of the letter to Stehr. The next day, Stehr
confronted Shields about the letter. Stehr told Shields he was not happy about her
testimony and indicated she should have said she "forgot" when asked about seeing
petitioner. Stehr told her, "he forgets in court all the time." Tr. of Hr'g on
Postconviction Relief at 34; J. A. at 116. Shields immediately informed petitioner's
trial counsel about Gustafson's letter and Stehr's remarks.


      At trial, several witnesses testified regarding petitioner's condition on the night
of the killing. The witnesses who observed petitioner prior to the killing, namely, his
drinking associates, other bar patrons, and bar employees, all testified petitioner was
drunk. Those who observed petitioner after the killing gave varying statements. The
police officers that questioned petitioner at the Law Enforcement Center gave
inconclusive statements, indicating they smelled alcohol on him, but did not find any
chemical testing necessary. Shields indicated she thought he was drunk, while Stehr
testified he determined petitioner had been drinking, but was not drunk.
Notwithstanding, petitioner's trial counsel did not question either Shields or Stehr
about the pressure placed on Stehr to “forget” and the sheriff's practice of forgetting
unfavorable evidence.     The District Court determined trial counsel's inaction
constituted ineffective assistance of counsel.


      There being no factual disputes, we review the District Court's determination
de novo. United States v. Craycraft, 167 F.3d 451, 454 (8th Cir. 1999); McGurk v.
Stenberg, 163 F.3d 470, 473 (8th Cir. 1998).1 The Sixth Amendment grants criminal

      1
       The substantive review standards of the Antiterrorism and Effective Death
Penalty Act of 1996 do not apply to this appeal because Steinkuehler filed his habeas
                                           4
defendants the right to have effective assistance of counsel. The Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), set forth the now familiar standard
for establishing ineffective assistance of counsel.

             First, the defendant must show that counsel's performance
             was deficient. This requires showing that counsel made
             errors so serious that counsel was not functioning as the
             "counsel" guaranteed by the Sixth Amendment. Second,
             the defendant must show that the deficient performance
             prejudiced the defense. This requires showing that
             counsel's errors were so serious as to deprive the defendant
             of a fair trial, a trial whose result is reliable.


Id. at 687. Counsel's performance was deficient if it "fell below an objective standard
of reasonableness." Id. at 688. Our review of a counsel's performance is "highly
deferential." Id. at 689. Prejudice is established if there is "a reasonable probability
that,” but for counsel's errors, "the result would have been different.” Id. at 694.
Both deficient performance and resulting prejudice must be established to satisfy the
Strickland standard. Id. at 697.


      We agree with the District Court's reasoning and determination that trial
counsel's performance was deficient. By not denying shooting Mohr, petitioner's
primary defense was his intoxication. Trial counsel did elicit strong evidence from
the individuals who observed petitioner prior to the shooting. However, the last point
in time any of these lay witnesses observed petitioner was one and one-half hours



petition before the effective date of the Act. See Roe v. Delo, 160 F.3d 416, 418 n.
1 (8th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
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before the shooting. The law enforcement personnel, on the other hand, saw
petitioner beginning approximately one-half hour after the shooting. A jury could
reasonably conclude petitioner sobered up during the one and one-half hours before
the shooting. Thus, the testimony of law enforcement personnel was especially
critical.


       The only law enforcement officers to offer an actual opinion as to petitioner's
intoxication level were Shields and Stehr, and their testimony was in direct conflict.
Thus, the relative credibility of Stehr and Shields was pivotal to petitioner's defense.
As the District Court noted, at this point, "[t]rial counsel had in his hands material
for a devastating cross-examination of Sheriff Stehr on critical issues in the case,
Steinkuehler's level of intoxication and the Sheriff's policy of forgetting things that
would help a defendant." Order at 36-7. Stehr's "routine forgetfulness" clearly
impacted his credibility. It evidenced a willingness by the only law enforcement
officer who testified petitioner was not drunk to do whatever was necessary to get a
conviction.


       Appellant argues trial counsel's decision not to develop any testimony in this
area was a strategic choice within the reasonable professional judgment allowed
under Strickland. At petitioner's postconviction hearing, trial counsel could not recall
why he did not pursue this area, and only speculated as to what he may have been
thinking. While we are aware our review of counsel's performance is highly
deferential, "[i]t borders on the inconceivable that a trial attorney would fail to inform
a jury of Sheriff Stehr's dishonesty and win at all costs attitude." Order at 37.



                                            6
      We also agree with the District Court's determination that trial counsel's
deficient performance prejudiced petitioner. Petitioner faced a first-degree murder
conviction unless he could convince the jury he was intoxicated. The testimony of
Stehr and Shields on that issue was contradictory. Destroying Stehr's credibility
would have placed into question the veracity of the only opinion that petitioner was
not intoxicated. Appellant asserts attacking Stehr's testimony would not have
affected the jury because other law enforcement officers' testimony was actually more
persuasive than Stehr's. App. Br. at 14. However, the testimony appellant refers to
consists of inconsistent statements of petitioner's intoxication level, mere
observations of petitioner's condition, and a refusal to speculate as to whether
petitioner was intoxicated.     Thus, as the District Court correctly concluded,
petitioner's conviction of first-degree murder primarily rested on Stehr's testimony
that petitioner was not drunk. Presenting evidence of the county attorney's letter and
the sheriff's ensuing remarks would have certainly provided the jury with a basis for
reasonable doubt. We therefore conclude a reasonable probability exists that the
result of petitioner's first-degree murder conviction would have been different if trial
counsel would have presented evidence of the county attorney's letter and the sheriff's
subsequent statements.2 Petitioner was denied his Sixth Amendment right to effective
assistance of counsel.




      2
      The District Court also determined petitioner was prejudiced because the jury
was not allowed to consider the overall fairness and reliability of the entire
prosecution as well as Gustafson's credibility and vindictiveness. Having already
concluded prejudice exists, we need not address this issue any further.
                                           7
B.    Confessions Instruction
      The District Court also found trial counsel was ineffective for failing to request
a jury instruction regarding confessions. At trial, a law enforcement officer testified
petitioner, shortly after turning himself in, voluntarily stated, "I am a jealous son of
a bitch." J.A. 37. The pattern Iowa Criminal Jury Instructions include a confessions
instruction.3 Trial counsel did not request the instruction be given. Petitioner argues
the instruction was necessary to guide the jury as to the statement's proper weight and
credibility given petitioner's level of intoxication. The District Court agreed, finding
the statement was an indirect confession and the only direct evidence of petitioner's
motive. We again review the District Court's decision de novo, applying the
Strickland standard.




      3
       The cautionary instruction states:

      The defendant cannot be convicted by a confession alone. There must
      be other evidence the defendant committed the crime.

      In determining the weight and believability of the confession, you
      should consider:

             1.     Defendant's mental capacity and intelligence.
             2.     Defendant's mental and emotional state at the time it
                    was made.
             3.     Whether it was knowingly and intelligently made.
             4.     Whether the defendant understood it.
             5.     Any other evidence relating to the confession.

I.C.J.I. 200.16.
                                            8
      At the postconviction hearing, trial counsel testified he did not request the
cautionary instruction because he did not believe petitioner's statement was a
confession. Using the instruction would have drawn attention to the statement and
characterized it as a confession. Finally, trial counsel believed there were enough
other instructions on intoxication for the jury to consider in evaluating the statement.


      Whether trial counsel was legally correct or not, we find he was justified in
believing the statement was not a confession. Petitioner did not expressly admit
anything other than being a jealous person and clearly did not admit to all of the
elements of the crime of first-degree murder. Under Iowa law, "[a] confession is an
acknowledgment in express terms by a party in a criminal case of guilt of the crime
charged." State v. Schomaker, 303 N.W.2d 129, 130 (Iowa 1981). A confession,
unlike an admission, refers to acknowledgment of all the essential elements of the
crime charged. State v. Capper, 539 N.W.2d 361, 364 (Iowa 1995); State v.
Saltzman, 44 N.W.2d 24, 26 (Iowa. 1950). “Whereas, an ‘admission’ relates only to
a particular fact or circumstance covered thereby.” State v. Davis, 235 N.W. 59, 761
(Iowa 1931). Including the instruction would have indicated to the jury that
petitioner's statement was in fact a confession. Furthermore, there was other evidence
at trial that petitioner and the victim had several previous run-ins, including a
discussion about petitioner's girlfriend only hours before the shooting. Characterizing
petitioner's jealousy statement as a confession would have allowed the jury to
reasonably infer that petitioner may have been meditating about the killing well
before the time of the shooting. Such inference would be inimical to petitioner's
intoxication defense. In light of these factors, we believe trial counsel's decision was
a permissible tactical decision falling "within the wide range of reasonable

                                           9
professional assistance." See Strickland, 466 U.S. at 689. There being no deficiency,
we do not need to consider if defendant was prejudiced. Id.


C.    Other Claims
      Finally, petitioner appeals the District Court's denial of his nine additional
claims for habeas relief. Having carefully reviewed the record and the parties' briefs,
we affirm dismissal of petitioner’s remaining claims for the reasons stated by the
District Court. See 8th Cir. R. 47B.


D.    Relief
      The District Court's order granting petitioner habeas relief provided the State
of Iowa with the option of re-trying petitioner for murder or releasing him. The
habeas relief granted herein relates solely to petitioner's intoxication defense. Under
Iowa law, voluntary intoxication is not a defense to a crime, but it may negate the
specific intent required for first degree murder. See State v. Caldwell, 385 N.W.2d
553 (Iowa 1986).      However, voluntary intoxication does not affect the lesser
included offense of second-degree murder because second-degree murder does not
require the specific intent potentially negated by intoxication. See State v. Hall, 214
N.W.2d 205 (Iowa 1974). Thus, we find the appropriate relief in this case is to
remand the matter to the District Court for entry of an order granting the State of Iowa
the option of retrying petitioner for first-degree murder or sentencing him for second-
degree murder.


                                   CONCLUSION



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      For the above reasons, we reverse the District Court with respect to petitioner's
second claim and affirm with respect to all other claims. This matter is remanded for
entry of judgment in accordance with this opinion.




      A true copy.


             ATTEST:


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




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