Thomas Earl SEEHAN, Sr., Appellee, v. STATE OF IOWA, Appellant, 72 F.3d 607

BOWMAN, Circuit Judge. The State of Iowa appeals from the order of the District Court granting the 28 U.S.C. § 2254 petition of Thomas Earl Seehan, Sr., for a writ of habeas corpus. We reverse. I. In 1976, Seehan was tried by jury in an Iowa state court for the murder of his two-year-old son Tommy Seehan. He was convicted of first-degree murder and was sentenced, as required by Iowa law, to life imprisonment without possibility of parole. On direct appeal, the Iowa Supreme Court affirmed Seehan’s conviction. State v. Seehan, 258 N.W.2d 374 (Iowa 1977).

Some ten years later, in June 1987, Seehan sought post-conviction relief in the state trial court. Post-conviction relief was denied, and the Iowa Supreme Court again affirmed the judgment of the trial court. Seehan v. State, 473 N.W.2d 208 (Iowa 1991). Shortly thereafter, Seehan filed the present federal habeas action. After a hearing in which oral arguments were heard and limited testimony was taken, the District Court granted Seehan’s petition for a writ of habeas corpus, ordering the state either to retry Seehan or to release him from custody.

The court found that habeas relief was warranted on two claims of ineffective assistance of trial counsel: (1) failing to object to inappropriate remarks made by the prosecutors during their opening statement and their closing argument; and (2) failing to request the use of a jury verdict form that expressly provided for a finding of “not guilty by reason of insanity.” The state appeals.

The state’s appeal was heard initially by a three-judge panel of this Court, which unanimously reversed the holding of the District Court on Seehan’s verdict-form claim, but affirmed in a two-to-one decision that court’s grant of habeas relief on the prosecutorial-misconduct claim. Seehan v. Iowa, 37 F.3d 389 (8th Cir.1994). We granted the state’s suggestion for rehearing en banc, thereby vacating the panel opinion. We now reverse the judgment of the District Court. II.

The District Court held that Seehan’s trial counsel was ineffective because he failed to request the use of a jury verdict form that specifically permitted a finding of “not guilty by reason of insanity.” For the reasons set forth in the panel opinion, we reverse this holding of the District Court, and we reinstate the portion of the panel opinion that deals with this issue. Seehan, 37 F.3d at 390. This claim thus affords Seehan no basis for habeas relief. III.

The District Court also granted habeas relief on Seehan’s prosecutorial-misconduct claim, i.e., his claim that his trial counsel was ineffective because he did not object to allegedly improper comments made by the prosecutors in their opening statement and closing argument. Like the District Court, we consider this claim under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

These standards require the convicted defendant who complains of ineffective assistance of counsel to show that the identified acts or omissions (1) “were outside the wide range of professionally competent assistance,” id. at 690, 104 S.Ct. at 2066, and (2) were “prejudicial to the defense,” id. at 692, 104 S.Ct. at 2067. The “prejudice” component of Strickland requires the convicted defendant to establish “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, 104 S.Ct. at 2064, quoted in Lockhart v.

Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Seeking reversal of the District Court’s decision, the state argues that Seehan has failed to satisfy either the deficient-performance or the prejudice component of Strick land. We agree. His ineffective-assistance-oi-counsel claim is grounded on arguments that the prosecution made to the jury without objection.

First, Story County Attorney Ruth Harkin, who was a visibly expectant mother at the time of Seehan’s trial, included in her opening statement these comments about the slain child: 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. Trial Tr. at 7.

Later, summing up the state’s case, Assistant County Attorney Richard Parker 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 part of our society. Id. at 503. Who are the parties in this case? 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. Id. at 504. 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. Id. at 539. Seehan’s trial counsel neither objected to any of the prosecutors’ comments nor moved for a mistrial based on alleged prosecutorial misconduct.

In his application for post-conviction relief in the state district court for Story County, Seehan claimed ineffective assistance of trial counsel in' that counsel failed to seek a mistrial for the alleged prosecutorial misconduct represented by the arguments we have quoted above. Viewing those arguments in context, the court found no prosecutorial misconduct by either Harkin or Parker.

The court also found that, even if those arguments were considered impermissible, neither the arguments nor counsel’s failure to move for a mistrial resulted in prejudice to Seehan. “No reasonable probability exists,” said the court, “that, but for counsel’s failure to move for a mistrial based on prosecutorial misconduct, the result of Mr. Seehan’s trial would have been different.” Findings of Fact, Conclusions of Law and Order Denying Post-Conviction Relief at 16-17 (Mar. 29, 1990).

The Iowa Supreme Court agreed, applying Strickland and holding that Seehan had not. “met his burden to show that counsel failed to perform an essential duty or that any prejudice resulted from counsel’s omission.” Seehan v. State, No. 116/90-506, slip op. at 2-3. In particular, the court found that the prosecutors’ comments had not “so infected the trial as to change the result. The evidence of- Seehan’s guilt was overwhelming.” Id. at 3. Having considered de novo the application of Strickland to this case, we agree with the conclusions reached by the Iowa state courts.

As to the defective-performance component of Strickland, we are satisfied that Seehan’s trial counsel was not constitutionally deficient in failing to object to the prosecutorial statements here in question. Though Seehan would have us view these statements as clearly improper, the state courts, applying state law and considering the statements in context, did not so characterize them, and instead found that no prosecutorial misconduct had occurred.

Moreover, even if we were to regard the statements as something more than colorful, forceful advocacy, we still could not avoid the conclusion that Seehan’s arguments, which the District Court accepted, take the statements out of context and thus give them a prominence and a significance they almost certainly did not have in the trial courtroom. We already have quoted, ante at 608-09, the challenged passage from Harkin’s opening statement to the jury.

Seehan would have us ignore that shortly before making the quoted remarks Harkin had cautioned the jury as follows: In this case we have seventeen, or about seventeen witnesses that we intend to call. All of the witnesses will come in, and they will be coming in one by one; and they will not be present in the courtroom during the trial. And they will come up to this witness box, and they will present all of their evidence through this chair. All of the evidence that you will hear in this case will come from this place in the courtroom.

It’s important to keep in mind that anything that I might say, anything that Mr. Parker [the assistant county attorney] might say, or anything that Mr. Brewer [the lead defense counsel] might say is not to be considered as any type of evidence in this case. All of the evidence that you are to consider comes strictly from the witnesses. We are merely advocates for our positions, and we are merely seeing that the evidence will be presented to you. Trial Tr. at 5. The remarks by Harkin that Seehan complains about then begin on the very next page of the trial record.

Given Harkin’s earlier statement, and considering the desire of any competent counsel to avoid offending or alienating the jury, it is entirely understandable why Seehan’s counsel would refrain from objecting to Harkin’s brief comments about the dead child. Seehan also bases his ineffective assistance claim on Parker’s closing argument. But again, both Seehan and the District Court neglect to put the questioned remarks into proper context.

We note that immediately following the final paragraph of the portions of Parker’s argument that we have quoted above, ante at 609, Parker had this to say to the jury: My feelings aren’t important. It’s what you heard. I think that this evidence demands a guilty verdict. I think that it shows an intentional killing that we have shown malice, that we have shown premeditation, the time to think about it, deliberate about it, before or for four to fifteen minutes to retract. That’s a substantial amount of time to deliberate. If you are doing that sort of thing. In short, I think the evidence is all there.

I leave it in your hands. Trial Tr. at 539^10. We further note that earlier in his closing argument Parker had unequivocally informed the jurors that they were not to take his feelings into account: I cannot tell you what I feel because it was not the evidence. My comments to you this morning should not be considered as evidence. You were here, you heard every scrap of evidence from that chair that you can consider. The comments that Mrs. Harkin made to you, the comments that I make to you, the comments that Mr. Brewer made to you and will make to you should not be considered as evidence.

The statements that I make, and this is my only opportunity to really talk with you, are going to be my

interpretations of the facts. I will not intentionally mislead you as to any of the evidence that I discuss in this case. If you feel that I have misstated any of the evidence, disregard what I say. It will never be my intention to mislead you. But remember what is important is what you heard, the facts that you heard, not what I say and not what Mr. Brewer says. The purpose of our argument here is merely to assist you in developing the theory of each of our respective sides. We are advocates. We represent a side, a different theory about the facts in this case. Id. at 503-04.

In addition, the first paragraph of Parker’s challenged remarks, without omissions, appears this way in the trial record: 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 part of our society. Out [sic] duty is to ensure that he gets a fair trial. Our duty is to ensure that we have a just result.

Id. at 503. The last two sentences of the quoted paragraph, which, again, Seehan would have us ignore, explain Parker’s statement about also representing the defendant and make it clear that he is doing no more than advising the jury of every prosecutor’s duty to proceed fairly and to seek a just result. As with Harkin’s remarks in her opening statement, it is easy to see that a competent counsel readily could have chosen to refrain from objecting to any of Parker’s comments.

Taken in context, Parker’s comments, like Harkin’s comments in her opening statement, were not so clearly inappropriate as to demand objection, and in fact the state post-conviction court found that none of these comments amounted to prosecutorial misconduct. See Findings of Fact, Conclusions of Law and Order Denying Post-Conviction Relief at 15, 16. We therefore cannot conclude that defense counsel’s failure to object to these statements fell outside the range of' competent lawyering.

In fact, the record shows that defense counsel recognized the emotional appeal of the state’s argument and chose to counter it with a forceful and emotional closing argument of his own. This was an entirely reasonable strategic choice and cannot properly be viewed as deficient law-yering. Under Strickland, Seehan must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687, 104 S.Ct. at 2064.

This means that Seehan must overcome the strong presumption that in the circumstances of his ease “the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Seehan has fallen far short of making the necessary showing. Similarly, we conclude that Seehan has failed to show that he suffered any prejudice, in the Strickland sense, as a result of his counsel’s alleged omissions. At trial, it was undisputed that Seehan had caused his two-year-old son’s death by smothering him with a pillow.

Uncontradicted testimony established that to kill a child in this fashion would take' anywhere from four to fifteen minutes. The state presented a strong case, apparently found convincing by the jury, that Seehan, acting with premeditation, killed his son to spite the child’s mother, who was seeking a divorce from Seehan and who had informed him she wanted custody of the boy. But whatever the jury ultimately may have thought regarding Seehan’s' motive, the fighting issue at trial was whether Seehan was sane when-he took his son’s life.

The trial spanned some eight days, starting on April 28, 1976, with counsel’s opening statements and concluding with the submission of the case to the jury on May 5, 1976. The trial record runs 540 pages, not including the reading of the instructions to the jury. A large portion of the trial'was given over to the testimony of the mental health professionals who appeared for each side. Having thoroughly reviewed the record, we do not believe that the statements of the prosecutors upon which the District Court relied for its result had any significant effect upon the jury’s verdict.

As noted earlier in this opinion, the Iowa Supreme Court, in affirming the denial of Seehan’s application for post-conviction relief, Seehan v. State, 473 N.W.2d 208 (Iowa 1991) (table), concluded that the state’s evidence of Seehan’s guilt of first-degree murder was “overwhelming” and that Seehan had not demonstrated “any likelihood that the outcome of the 1976 criminal trial would have been different but for counsel’s omission.” Seehan v. State, No. 116/90-506, slip op. at 3. Our review of the record leaves us firmly convinced that this conclusion is correct.

In short, Seehan has failed to establish the “prejudice” component of his ineffective assistance claim, i.e., he has failed to show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, quoted in Lockhart v. Fretwell, 506 U.S. at 369, 113 S.Ct. at 842 (1993). For the reasons stated, we conclude that Seehan has failed to establish either component of the Strickland standard, much less both of them. Thus his ineffective-assistance-of-eounsel claim must fail. IV.

The District Court’s grant of habeas relief to Seehan is reversed and the case is remanded for entry of judgment denying the writ. . For the reasons expressed in Judge Beam's dissent, we reject the state's contentions that our Strickland review is anything less than de novo. . Seehan asserts that Harkin, great with child, patted her belly as she made her comments about little Tommy. We find no support for this assertion in the record.

Even if the assertion is true, however, it would not change our view that defense counsel did not stray from the wide range of professionally competent assistance in allowing Harkin's argument to proceed without objection.