Thomas Earl SEEHAN, Sr., Appellee, v. STATE OF IOWA, Appellant, 37 F.3d 389

BEAM, Circuit Judge. We are called upon to determine whether Thomas Earl Seehan’s trial in Iowa state court violated standards established by the Constitution. The district court determined that Seehan’s constitutional rights were abridged and granted him a writ of habeas corpus. Our review of that holding prompts us to affirm in part and reverse in part. I. BACKGROUND This is a tragic case. The evidence established that Seehan, a loving father by all accounts, killed his two-year-old son Tommy, to avoid losing custody of the child as part of a marital breakup.

Seehan then made several attempts at suicide which failed. For this act against his son, he was found “guilty of murder in the first degree.” He was sentenced to a term of imprisonment for life without the possibility of parole. Seehan attacked this final judgment by direct appeal and later, through state post-conviction proceedings. The Iowa Supreme Court in both instances affirmed the conviction. Seehan’s present appeal reaches us on two separate, but intertwined, issues. First, he contends that his trial counsel was ineffective, under the standards established in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because his counsel failed to request the use of a jury verdict form that specifically permitted a finding of “not guilty by reason of insanity.” Seehan claims that Iowa Code

section 785.19 (1975) requires such a form. There is no allegation that the jury was improperly instructed on the law or that it was not instructed to find Seehan not guilty if he was found to be insane, only that the verdict form did not provide a place for the jury to respond with more than “not guilty.” This claim was raised for the first time in the federal habeas action and was decided favorably to Seehan by the district court.

Second, Seehan contends that his counsel was ineffective under Strickland because he failed to object to prejudicial comments made by the prosecutors in their opening statement and closing argument. This claim was advanced and decided in the state post-conviction proceedings and in the petition for federal habeas relief. It was a basis for the granting of the writ by the district court. II. DISCUSSION We disagree with the district court’s ruling on Seehan’s verdict form claim, a claim, as indicated earlier, not raised in the state court.

The district court reached the merits of this claim, in spite of Seehan’s procedural default in state court, by finding cause for the default and prejudice from the action. Wainwright v. Skyes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). The district court seized upon a perceived gap in an otherwise inclusive holding in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), ruling that Seehan established cause for his procedural default by reason of ineffective acts of his post-conviction counsel. This circuit has held to the contrary. Nolan v.

Armontrout, 973 F.2d 615, 617 (8th Cir.1992). Accordingly, we reverse this holding of the district court. We agree, on the other hand, with the ruling of the district court on the issue of prosecutorial misconduct in the opening statement and the closing argument. On federal habeas review, “[njeither this court nor the district court may undertake to correct alleged trial errors.... ” Hulsey v. Sargent, 821 F.2d 469, 472 (8th Cir.1987). Our task is to review the trial process to determine whether an error of constitutional dimension occurred. Id.

Usually, “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). Here, however, Seehan does not assert a due process violation. He advances, instead, as earlier indicated, a Sixth Amendment right to effective assistance of counsel.

Thus, we must review these allegations under the rules announced in Strickland and subsequent cases. In Strickland, the Supreme Court established a two-part approach. When a convicted defendant complains of ineffective assistance of counsel, he must establish that the identified acts or omissions “were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. This is an objective test. Then, even if the acts or omissions are outside this range, the defendant must establish that the deficiencies were “prejudicial to the defense.” Id. at 692, 104 S.Ct. at 2067.

With this in mind, we review the alleged misconduct. The lead member of the prosecutorial team was a visibly expectant mother. In her opening statement, while “continuously patt[ing] her pregnant belly,” Appellee’s brief at 25, she stated: He was the kind of little boy that I would like to have. He was the kind of little boy that you would like to have. His personality was just developing. He was just starting to come into his own. He weighed 35 pounds. He was helpless. He was defenseless. He was snuffed out. Snuffed out before he had a chance. Transcript at 7.

Then, in summation, the other member of the prosecutorial staff argued, in part, as follows: Our duty as prosecutors in this case has been to present the evidence as we developed it to you. We have a different type of duty than you would anticipate. It’s different from that of a civil case in which lawyers represent one client or another. We represent the people of Iowa and Story County. In short, we represent you. We also represent the defendant because he is a part of oúr society. Who are the parties in this ease? Tommy Seehan.

Tommy Seehan was a normal, healthy, two year old child on the morning of November 13th, 1975. By 9 p.m. that same day, Tommy Seehan was dead. They say that a chain is only as strong as its weakest link. In law enforcement there is a chain. There are those police, the policemen, the law enforcement officers who investigate cases. The witnesses who come forward and testify as to what they saw or observed. Prosecution, who presents the case. We have presented everything, I think good and bad. Anything. I think the evidence is before you. You should properly consider.

But the last and most important thing is the jury. You jurors are part of that law enforcement chain. Everybody else has done their part, and now you must do yours and make a decision. They are not paying any salary, they are not giving me enough money to try and convict an innocent person. Transcript at 503, 504 and 539 (emphasis added). These statements, perhaps somewhat innocuous in isolation, were, we think, when viewed in the context of all the evidence and the emotional nature of the trial, improper.

Thus, we are inclined to think that under our cases, failure of defense counsel to object to these patently inflammatory statements fell outside the range of competent lawyering. Accordingly, we must assess their prejudicial effect. We review these omissions under the so-called Fretwell test. Lockhart v. Fretwell, — U.S.-, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). We do not set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error. Id. at-, 113 S.Ct. at 843.

Rather, the focus is on whether “counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Id. at -, 113 S.Ct. at 844. We think this test is at least as rigorous as that outlined in Darden, 477 U.S. at 181, 106 S.Ct. at 2471-72, with respect to a due process challenge. Under either standard, we agree with the result reached by the district court. We are not inclined to compare the evidence at this trial with that of numerous other cases in this circuit dealing with prose-cutorial misconduct.

However, our review of the record establishes that this was a very close case on the issue of defendant’s state of mind, indeed Seehan’s sanity. The expert testimony offered by each side was compelling. The tragic facts of this marital breakup and the account of the death of the child were presented in emotion-charged detail. While not by itself determinative, ten hours of deliberation by the jury indicates that the state’s case, at least on the question of the defendant’s sanity, was not overwhelming.

The obvious appeal by the prosecutors to the prejudices, passions, emotions and instincts of the members of the jury as parents and good citizens was simply too much. In light of the inflammatory statements, we think the jury was unable to calmly consider the mitigating factors relating to Seehan’s intent and mental state which could have resulted in a second-degree murder conviction, or an acquittal by reason of insanity. Thus, we conclude that the trial, under the circumstances, was “fundamentally unfair” and “unreliable.” In short, the Fretwell test has been met. III.

CONCLUSION Accordingly, we reverse the district court on the verdict claim and affirm the district court on the prosecutorial conduct issue. The case is remanded to the district court with directions to grant a writ of habeas corpus subject to retrial by the State of Iowa within a reasonable time.