                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 99-1328
                                ________________

Charles L. Witherspoon,                  *
                                         *
      Appellant,                         *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Missouri.
James D. Purkett,                        *
                                         *
      Appellee.                          *

                                ________________

                                Submitted: December 17, 1999
                                    Filed: April 14, 2000
                                ________________

Before BEAM, HEANEY, and HANSEN, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

       During a confrontation over damage to his automobile, Charles Witherspoon,
then age sixteen, shot and killed another young man after being surrounded by the
victim and several of his friends. Pursuant to his counsel's recommendation,
Witherspoon pleaded guilty to second-degree murder and armed criminal action, in
return for the prosecutor's recommendation for two concurrent twenty-year prison
sentences, rather than face trial and a potential life sentence if convicted. He was
sentenced in accord with the plea agreement. The question presented in this petition
for habeas relief under 28 U.S.C. § 2254 is whether Witherspoon was denied his Sixth
Amendment right to effective assistance of counsel because of his counsel's failure to
interview Witherspoon's eyewitness companion during the shooting, who would have
been his key self-defense witness had Witherspoon rejected the plea offer and taken
his chances at trial. The district court1 denied habeas relief on the ground that
Witherspoon had not shown prejudice from his counsel's failure to interview the
eyewitness companion. We affirm.

                               I. Facts and Background

       On August 7, 1991, petitioner asked his brother's girlfriend, Rhodesia Wilson,
to drive him around town to help him find out who had tampered with his car the
previous night. She agreed, and they eventually spotted a person Witherspoon knew
by the name of Dino. Witherspoon got out of the car and began questioning Dino, at
which point the victim (a leader of a rival gang) and three or four other young men
approached. An argument started between Witherspoon and the victim, and as the
group of youths surrounded Witherspoon, the victim challenged Witherspoon to a fight.
Witherspoon alleges that a young man by the name of "Rabbit" slipped a gun to him
sometime during the confrontation, and Witherspoon eventually brandished the weapon
when he felt he was about to be assaulted by the victim and the rest of the group.
Witherspoon claims the same group had "jumped" and beaten his brother on an earlier
occasion. Witherspoon testified that after he brandished the gun, the victim continued
to approach him with his hands in the air in a fighting position, at which point
Witherspoon shot the victim twice, allegedly in self-defense. The group dispersed,
Witherspoon ran home, and the victim died from the gunshot wounds.

       Witherspoon was indicted for second-degree murder, a class A felony offense
with a range of punishment from ten to thirty years or life in prison, and armed criminal


      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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action, with a minimum punishment of three years in prison. On the day trial was to
begin, Witherspoon's counsel recommended that he plead guilty to both charges in
return for concurrent sentences of twenty years in prison. The state trial judge accepted
Witherspoon's guilty plea and sentenced him to concurrent twenty-year sentences. At
his § 2254 hearing, Witherspoon testified that his counsel explained to him that counsel
had talked to Ms. Wilson but that her testimony would hurt his case, at which point
Witherspoon believed he had no choice but to plead guilty. Witherspoon's present
assertion that his attorney misled him about having interviewed Ms. Wilson is
supported directly by deposition testimony from Ms. Wilson and indirectly by
testimony from his trial counsel, whose depositions were both introduced into evidence
during the § 2254 hearing. Ms. Wilson testified that she was never interviewed by
Witherspoon's counsel about the shooting and trial counsel testified that he had no
recollection of ever interviewing her. The district court denied Witherspoon's petition
for habeas relief and granted a certificate of appealability on the issue of whether
counsel's failure to interview the eyewitness companion amounts to ineffective
assistance of counsel.

                                      II. Analysis

       As a preliminary matter, we reject the state's argument that Witherspoon's claim
is not properly before this court because of a failure to preserve the issue for federal
review. We agree with the district court that Witherspoon's claim is not procedurally
barred from federal court review because it was adequately raised on appeal in state
court. We therefore address the merits of his claim.

       In order to obtain relief under the Sixth Amendment for ineffective assistance of
counsel, a petitioner must show that his counsel's performance was both deficient and
prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). See also Hill v.
Lockhart, 474 U.S. 52, 58 (1985)(applying Strickland's two-part test to ineffective
assistance of counsel claims arising in context of guilty pleas). Ms. Wilson was an

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eyewitness to the shooting and to the events leading up to it. Every other eyewitness
to the shooting was a witness for the prosecution, which makes her Witherspoon's key
witness in support of his assertion that the shooting was done in self-defense or because
of victim provocation. Although the record shows that counsel did attempt to find
"Rabbit," tried to interview the three state eyewitnesses to the shooting, and had
character witnesses ready to testify on behalf of Witherspoon, the record also shows
that counsel did nothing more than read the police reports regarding Rhodesia Wilson's
account of the shooting. There is no evidence that counsel, or any of his investigatory
assistants, ever personally interviewed Ms. Wilson about what she saw that day. In
fact, the record convinces us that Witherspoon's counsel never interviewed Ms. Wilson.
First, Ms. Wilson testified in her deposition under oath that she was never interviewed.
Second, counsel himself has no recollection of interviewing Wilson. Third, though only
a portion of the trial counsel's file could be located, the part that was found shows that
Wilson was never interviewed by trial counsel's investigatory assistants. In addition,
counsel testified that his common practice was to obtain a correct address for any
witness that he interviewed, and the address listed for Wilson just prior to trial was an
old and incorrect address from which she had moved one week after the shooting took
place. Based on this particular set of facts, we think it very likely that counsel's failure
to interview Ms. Wilson, the eyewitness companion during the shooting, amounts to
deficient performance under Strickland. For purposes of this appeal, however, we need
not and do not decide that specific issue because we agree with the district court that
Witherspoon has failed to show the necessary prejudice as required by Strickland and
Hill.

       The crucial and more difficult issue, however, is whether Witherspoon suffered
prejudice due to his counsel's alleged deficient performance. Witherspoon argues that
but for his counsel's failure to interview Ms. Wilson, he would not have followed the
advice of his counsel to plead guilty to second-degree murder. A defendant can
establish prejudice if "there is a reasonable probability that, but for counsel's errors,
[the defendant] would not have pleaded guilty and would have insisted on going to

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trial." Hill, 474 U.S. at 59 (emphasis added). In cases involving claims of failure to
investigate, a defendant can establish prejudice by showing that the discovery of
evidence would have caused counsel to change his recommendation as to the plea offer.
See id. This assessment "will depend in large part on a prediction whether the evidence
likely would have changed the outcome of a trial." Id. It is admittedly difficult to
determine, after the fact, whether counsel would have changed his recommendation had
he interviewed Ms. Wilson, whether Witherspoon would have insisted on going to trial
had he known the substance of Wilson's probable testimony at trial, and whether her
testimony likely would have changed the outcome of a trial. After carefully reviewing
the record, we agree with the district court that petitioner has failed to make a sufficient
showing of prejudice necessary for this court to grant habeas relief.

        A comparison of Ms. Wilson's deposition testimony (her probable testimony had
she been called as a witness) with her comments to the police as found in the police
report and with Witherspoon's testimony during his § 2254 hearing convinces us that
counsel would not have changed his recommendation had the substance of Wilson's
likely testimony been known prior to the guilty plea. Although Ms. Wilson's testimony
supports many of the details of Witherspoon's version of events, there are important
inconsistencies that would severely weaken Witherspoon's chances at trial of
convincing a jury that he acted in self-defense or was guilty only of a lesser degree of
homicide. The first, and most important, is Ms. Wilson's version of the second
gunshot. According to the reports of the investigating officers, she originally told the
police that Witherspoon fired the second shot while standing over the victim, a
statement which in all likelihood is fatal to Witherspoon's self-defense theory. This is
in direct contradiction to her deposition testimony where she explained that the two
shots were fired in rapid succession and then Witherspoon stood over the victim. In
this particular case, the inconsistency goes to the heart of the self-defense theory. In
addition, not only were her statements to the police tape recorded (thereby probably
precluding an assertion that she never made the statements or that the police officers
misinterpreted her statements), but the coroner's report also supports her original and

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earlier story. The coroner's report states that the second shot entered the victim in the
left lower side of his back, which is physical evidence strongly supporting the story that
the second shot was fired while the victim was already on the ground or at least no
longer an immediate threat to Witherspoon.

        Another inconsistency that discredits Witherspoon's self-defense theory has to
do with the position of the victim's hands immediately prior to the shooting.
Witherspoon asserts that the victim's hands were raised and in a fighting position at the
time he fired the gun, whereas Ms. Wilson stated that the victim's hands were at his
side, thus discrediting Witherspoon's assertion that deadly force was justified. In sum,
although Ms. Wilson's testimony would have corroborated Witherspoon's version of
events in many areas, her testimony in several critical areas would have severely
undermined Witherspoon's chances of prevailing at trial. In these circumstances, we
do not think that counsel would have changed his recommendation had he interviewed
Ms. Wilson prior to the guilty plea.

        We also think, notwithstanding Witherspoon's assertions to the contrary, that
Witherspoon would not have insisted on going to trial had Ms. Wilson been ready to
testify. As explained above, the state would have attacked Wilson's credibility with the
inconsistencies between her two stories of the shooting and would have stressed the
damaging portions of her testimony. In addition, the state also had the coroner's report
and three of its own eyewitnesses whose statements to the police gave no credence to
Witherspoon's self-defense or manslaughter theories. It is true that defense counsel had
filed a motion to exclude the three state eyewitnesses for failure to appear prior to trial
for depositions, but the motion had never been ruled upon prior to the guilty plea. At
most, we think the state trial court would have granted a continuance of trial until such
time as defense counsel had a chance to interview the three eyewitnesses, but in the end
they likely would have been allowed to testify. The only other witness who might have
added support to Witherspoon's story of self-defense was his mother, but the
admissibility of Witherspoon's comments to her shortly after the shooting is uncertain.

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Finally, Witherspoon's story about how he obtained the murder weapon--that a young
man by the name of "Rabbit," a person he had given a ride to on a previous occasion,
handed it to him during the confrontation--is questionable. "Rabbit" was never located
nor specifically identified, and most damaging of all, Witherspoon informed the judge
at the plea hearing under oath that he bought the weapon himself. (One of the three
state eyewitnesses had told the police that Witherspoon withdrew the weapon from his
right rear pants pocket). It is doubtful that Ms. Wilson's potential testimony would
have altered the outcome of a trial when weighed against the inconsistencies in her
statements as well as the police and coroner's reports and the three other eyewitnesses
who would have testified for the state.

       For all of these reasons and on the record before us, we conclude that there is no
reasonable probability that Witherspoon would have continued to plead not guilty and
would have insisted on going to trial, particularly when facing the prospect of a
possible sentence of life in prison versus the twenty-year deal. We therefore find that
Witherspoon has failed to make the necessary showing of prejudice required for this
court to grant his petition for habeas relief.

                                    III. Conclusion

      For the foregoing reasons, the district court's denial of Witherspoon's request for
habeas relief under 28 U.S.C. § 2254 is hereby affirmed.

      A true copy.

             Attest:

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




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