Bert L. Hunter v. Michael Bowersox ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2084
No. 97-3325
___________
Bert L. Hunter, *
*
Petitioner - Appellant, *
* Appeals from the United States
v. * District Court for the
* Western District of Missouri.
Michael Bowersox, *
*
Respondent - Appellee. *
___________
Submitted: September 21, 1998
Filed: March 22, 1999
___________
Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.
___________
LOKEN, Circuit Judge.
Bert L. Hunter, a Missouri inmate under sentence of death, appeals the denial
of his petition for a writ of habeas corpus. The district court1 granted a certificate of
appealability on three issues: whether Hunter’s guilty plea was valid; whether the
trial court’s sentencing process was constitutionally proper; and whether Hunter was
denied effective assistance of counsel. We granted a certificate on a fourth issue,
1
The HONORABLE DEAN WHIPPLE, United States District Judge for the
Western District of Missouri.
whether the district court should have held an evidentiary hearing, and now affirm.
I. Background
On December 15, 1988, Hunter and friend Tomas Ervin, armed and planning
to rob Richard Hodges, forced their way into the Jefferson City home of Mildred
Hodges and her son, Richard. After binding Mildred Hodges with duct tape, Hunter
began searching the house for money and valuables. As Ervin tied up Richard
Hodges, Mildred broke free and pulled the mask off Ervin’s face, and Ervin called out
Hunter’s name. Fearful they could now be identified, Hunter and Ervin decided to
kill their victims. They placed plastic bags over the heads of Mildred and Richard.
Hunter held Richard’s nose until he suffocated.
State Court Proceedings. In March 1989, the State of Missouri charged Hunter
with two counts of first degree murder and one count of first degree robbery. Hunter
advised appointed defense counsel that he wanted to plead guilty but remained silent
at his arraignment. The court entered a plea of not guilty on all counts and ordered
a psychiatric evaluation.
At a pretrial hearing in July 1989, Hunter told the court he wanted to plead
guilty, despite the contrary advice of counsel. The court adjourned proceedings to
give Hunter and his attorney time to reconcile their differences, and to give Hunter
an opportunity to talk with family, friends, or clergy. Four days later, Hunter again
appeared, confirmed a continuing difference of opinion with counsel, and asked the
court to allow him to proceed pro se and plead guilty. After questioning Hunter, the
court allowed him to proceed pro se but asked appointed counsel to remain during the
hearing to answer any questions Hunter might have. The court and standby counsel
then questioned Hunter at length on his decision to plead guilty and forgo his right
to trial by jury. The court then accepted Hunter’s guilty plea, finding it was entered
-2-
knowingly, intelligently, and voluntarily, and ordered a second mental health
evaluation and a presentence investigation report (“PSR”).
In October 1989, Hunter moved to withdraw his guilty plea, arguing the plea
was coerced by depression caused by cocaine withdrawal and the coercive conditions
of his confinement, and that there was no factual basis for the plea. The motion was
denied after a hearing. On February 15, 1990, the court held a lengthy sentencing
hearing at which Hunter presented evidence of mitigating circumstances through
several witnesses. The court nonetheless found specific aggravating circumstances
and sentenced Hunter to death on the two murder convictions and to life in prison on
the robbery conviction. Hunter appealed, and the appeal was stayed pending state
postconviction proceedings under Missouri Rule of Criminal Procedure 24.035. The
postconviction court denied Hunter relief after an evidentiary hearing, and Hunter
again appealed. After consolidating the two appeals, the Missouri Supreme Court
affirmed the convictions, the sentences, and the denial of Rule 24.035 relief. See
State v. Hunter, 840 S.W.2d 850 (Mo. banc 1992), cert. denied, 509 U.S. 926 (1993).
Following the denial of Hunter’s petition for a writ of certiorari, a pro se petition for
a writ of habeas corpus was filed in his name in the Western District of Missouri.
District Court Proceedings. In May 1994, over the objections of court
appointed counsel, Mary-Louise Moran, Hunter moved to dismiss the habeas petition,
arguing it was filed without his knowledge or consent. The district court denied the
motion, Hunter appealed, and we granted a writ of prohibition. In re Hunter, No. 94-
8080 (8th Cir. Aug 2, 1994). The district court then dismissed the petition without
prejudice.
In August 1994, Hunter filed a second pro se habeas petition in the Eastern
District of Missouri. When the case was transferred to the Western District, Hunter
refused to acknowledge he had authorized it. The district court concluded no
authorized petition had been filed and denied a stay of execution. Hunter appealed.
-3-
We granted a limited stay of execution and remanded. The district court then
extended the stay of execution and appointed Ms. Moran as counsel. Hunter asked
the court to appoint new counsel but refused to explain why he was dissatisfied with
Ms. Moran. The court denied the motion but appointed co-counsel, Cheryl Rafert,
who is Hunter’s counsel on this appeal. In the following months, Hunter persistently
refused to cooperate with Ms. Moran or to communicate with the court. After
ordering Hunter to show cause why this conduct did not warrant dismissal, the district
court dismissed the petition with prejudice, and Hunter again appealed. Concluding
his conduct was improper but he should have one more chance to proceed on the
merits, we reversed the dismissal and remanded. See Hunter v. Delo, 62 F.3d 271,
275-76 (8th Cir. 1995).
In February 1996, Hunter filed an amended habeas petition alleging his
conviction and sentence violated his constitutional rights because:
-- his guilty plea was invalid;
-- he unknowingly waived the right to sentencing by a jury;
-- his waivers of counsel and the privilege against self-incrimination were
invalid;
-- there was no factual basis for the guilty plea;
-- the trial court judge was biased;
-- the trial court’s sentencing was arbitrary and improper;
-- he was denied effective assistance of counsel;
-- his sentence was disproportionate; and
-- he was abandoned by his state postconviction counsel.
The district court denied the petition without an evidentiary hearing in November
1996 and later summarily denied Hunter’s Rule 59(e) motion to amend the judgment.
Hunter appealed and applied to the district court for a certificate of probable cause
or a certificate of appealability. The court issued a certificate of appealability limited
-4-
to three issues. Hunter then applied to this court for an expanded certificate of
appealability and also separately appealed the district court’s partial denial. We
consolidated the two appeals, expanded the certificate to include a fourth issue, and
otherwise denied Hunter’s application. We will first address Hunter’s contention that
the district court and this court erred in not granting him an unlimited certificate of
probable cause or certificate of appealability. We will then turn to the merits of the
four issues on which the certificate was granted.
II. Certificate of Appealability Issues
Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) amended 28 U.S.C. § 2253 to require state habeas petitioners to seek a
certificate of appealability (“COA”), rather than the certificate of probable cause
required under prior law. See 28 U.S.C. § 2253(c)(1). The substantive standards for
granting the two certificates are identical -- a substantial showing of the denial of a
federal constitutional right. See Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir.
1998). But AEDPA changed the scope of a certificate. “[A] certificate of probable
cause place[d] the case before the court of appeals, but a certificate of appealability
must identify each issue meeting the ‘substantial showing’ standard.” Herrera v.
United States, 96 F.3d 1010, 1012 (7th Cir. 1996). Hunter argues we erred in limiting
the issues he may brief and argue on appeal because (1) the COA provisions of
AEDPA do not apply to habeas petitions filed prior to AEDPA’s effective date, April
24, 1996; and (2) AEDPA’s COA provisions do not in any event limit the issues
reviewable on appeal.2
2
Hunter also argues the district court violated F.R.A.P. 22(b) by failing to
explain why it declined to certify other issues for appellate review. We disagree. For
each issue on which a COA was denied, the district court stated that Hunter had not
made a substantial showing of the denial of a constitutional right. Hunter then
applied to this court for a COA on the issues denied by the district court. We denied
that application except as to the issue of the denial of an evidentiary hearing. The
-5-
(1) In Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir. 1997), we applied
AEDPA’s new appellate procedures to an appeal filed after the statute’s effective
date, even though the habeas petition was initially filed prior to that date. Hunter’s
amended habeas petition was filed on February 26, 1996. His notice of appeal from
the denial of that petition was filed in April 1997, long after AEDPA went into effect.
Hunter argues Tiedeman is contrary to the Supreme Court’s decision in Lindh v.
Murphy, 117 S. Ct. 2059 (1997). That issue was expressly considered in Tiedeman,
and we have since declined numerous requests to reconsider Tiedeman en banc. This
panel is bound to follow Tiedeman. Thus, Hunter’s appeal is subject to AEDPA’s
COA requirement.
(2) Hunter next argues that AEDPA does not require him to obtain a COA for
each issue he wishes to present for appellate review. This contention is foreclosed
by our decision in Ramsey, 149 F.3d at 759, where we held that the plain language
of § 2253(c)(3) limits appellate review to the issues specified in the COA. Accord
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998); Roberts v.
Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998), cert. denied, No. 98-6386, 1999 WL
8123 (Jan. 11, 1999); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
Hunter suggests it is unfair to impose this “radical change” without an advance
warning such as the adoption of a local rule. But under prior law we occasionally
screened out meritless appeal issues by limiting certificates of probable cause. See
Camillo v. Wyrick, 640 F.2d 931, 934 (8th Cir. 1981). In AEDPA, Congress directed
us to use this authority in a more systematic fashion. The result is not to eliminate
our consideration of meritless issues altogether, but rather to resolve such issues
expeditiously so that counsel will focus their briefs and arguments on the issues that
matter, that is, those on which there is some likelihood of appellate relief.
III. Validity of the Guilty Plea
record on appeal reflects full compliance with F.R.A.P. 22(b).
-6-
Hunter argues his state court guilty plea was invalid. He “lacked the mental
capacity to enter a voluntary, knowing, and intelligent plea of guilty,” Hunter
explains, because he was suffering from clinical depression brought on by his pretrial
detention in solitary confinement and by his withdrawal from cocaine. The district
court granted a certificate of appealability on these issues.
A. Competency. Due process requires that a defendant be competent to plead
guilty. See Pate v. Robinson, 383 U.S. 375, 384-85 (1966). In this case, the state
courts expressly determined that Hunter was mentally competent to enter his plea.
Under pre-AEDPA law,3 “[a] federal court may not overturn such determinations
unless it concludes that they are not ‘fairly supported by the record.’ See 28 U.S.C.
§ 2254(d)(8). . . . [A] state court’s conclusion regarding a defendant’s competency is
entitled to such a presumption [of correctness].” Demosthenes v. Baal, 495 U.S. 731,
735 (1990).
In this case, the trial court ordered a mental health evaluation before Hunter
entered his plea. The evaluation was incomplete because Hunter refused to
cooperate, but the evaluators were able to complete social and psychological
assessments revealing that Hunter was of average intelligence, had a history of
3
Because this is a state capital case, it is potentially subject to the explicitly
retroactive provisions of the new chapter 154 of Title 28 enacted in AEDPA. But
chapter 154 does not apply because Missouri has not yet met the requirements of 28
U.S.C. § 2261(b) and (c). That means the provisions of chapter 153 apply, by default
as it were. Do we apply the new, more restrictive standards of habeas review in
chapter 153 as amended by AEDPA, 28 U.S.C. § 2254(d) and (e), because we looked
to the retroactive provisions of chapter 154 in getting to this point, or do we apply the
pre-AEDPA standards of review found in former 28 U.S.C. § 2254(d) because Lindh
held that the chapter 153 amendments are not retroactive? Though the issue is not
free from doubt, we conclude the better -- and certainly the more cautious -- reading
of Lindh is that pre-AEDPA law applies to pending capital cases unless the
provisions of chapter 154 apply. See 117 S. Ct. at 2067-68.
-7-
cocaine abuse, did not appear to have a psychotic disorder, was capable of assisting
in his defense, and had good judgment. After the lengthy July 1989 plea hearings, the
trial court ordered a further psychiatric evaluation. The psychiatrist concluded that
Hunter functioned at bright-average intelligence, understood the charges against him
and the options available to him, was capable of entering a voluntary and intelligent
plea, and had chosen to plead guilty because he wished to take responsibility for his
participation in the crime and did not want to spend the rest of his life in prison. In
October 1989, Hunter moved to withdraw his plea, represented by the same attorney
he had earlier discharged. The court held an evidentiary hearing. A pharmacologist
testified that Hunter’s withdrawal from cocaine could have rendered him clinically
depressed and affected his ability to make a rational decision to plead guilty. The
witness acknowledged, however, that he knew of no case in which the effects of
cocaine withdrawal persisted for longer than three or four months, whereas Hunter
had been in custody and unable to obtain cocaine for five months when he pleaded
guilty. Based on this record and his extensive colloquies with Hunter in open court,
the trial court denied Hunter’s motion to withdraw the plea.
Hunter again challenged his plea’s validity in the state postconviction
proceedings, and a further evidentiary hearing was held. Clinical psychologist
William O’Connor testified that at the time of the guilty plea Hunter suffered from
“major depression, single episode” that caused him to want to die. Hunter should not
have been allowed to represent himself and plead guilty, Dr. O’Connor opined,
because “emotionally” Hunter did not have a voluntary choice. Hunter was not
confused, retarded, or out of touch, Dr. O’Connor explained. “The problem is not
cognitive. It’s emotional.” In a thorough opinion, the postconviction trial court
found that Hunter “was not suffering from depression amounting to a mental disease
or defect,” that he was competent at the time of the guilty plea hearing and had the
ability to waive his constitutional rights, and that his competence was demonstrated
by his demeanor and conduct as observed on the videotape of the guilty plea hearing.
In an equally thorough opinion, the Missouri Supreme Court upheld those findings.
-8-
See 840 S.W.2d at 862-63. After careful review, we agree with the district court that
the record fully supports these findings. Hunter has not overcome their presumption
of correctness.
B. Voluntary, Knowing, and Intelligent. For Hunter’s guilty plea to be
constitutionally valid, not only must he have been competent to stand trial, but his
waiver of the right to counsel and the right to stand trial must have been “knowing
and voluntary.” Godinez v. Moran, 509 U.S. 389, 400 (1993); see Brady v. United
States, 397 U.S. 742, 748 (1970). This requirement ensures that a defendant
“understand[s] the significance and consequences of a particular decision.” Godinez,
509 U.S. 401 n. 12. Whether a plea of guilty was constitutionally voluntary is a
question of federal law, but the state courts’ underlying findings of fact are entitled
to the presumption of correctness in former 28 U.S.C. § 2254(d). See Marshall v.
Lonberger, 459 U.S. 422, 431-32 (1983). That includes findings as to Hunter’s
credibility. See Demosthenes, 495 U.S. at 735.
While awaiting trial, Hunter was held in administrative segregation at the
Missouri State Penitentiary. He argues the conditions of this confinement “coerced
him into pleading guilty,” as confirmed by statements he made during the state court
hearings. These include comments that his housing unit, 5-C, was “the convict’s
nightmare,” that he did not want to be in 5-C longer than he had to, and that he was
living under “atrocious conditions.” Hunter also argues the effects of cocaine
withdrawal rendered him unable to freely decide whether to plead guilty. He suggests
that his demeanor during the hearings, such as “inappropriate smiling” and stating a
desire to receive the death penalty, shows that his plea was not voluntary and
knowing.
The state trial court expressly found that Hunter’s plea was “freely and
voluntarily given . . . with full knowledge.” The court found the psychiatric
evaluation ordered by the court in September 1989 more timely and credible than the
post-plea evaluations and testimony by psychologist O’Connor and the
-9-
pharmacologist. The court also found that Hunter’s demeanor and statements during
the plea hearing evidenced a complete understanding of the charges against him and
the options available to him. Applying the appropriate federal standard, the Missouri
Supreme Court carefully reviewed the record and upheld the trial court’s findings and
conclusion that the plea was knowing and voluntary. See 840 S.W.2d at 861-62.
After careful review of the record, we conclude that the state courts’ findings
are entitled to the presumption of correctness, and that these findings fully support
the determination that Hunter’s plea of guilty was voluntary, knowing, and intelligent.
Most significantly, as the state court opinions reflect, Hunter’s statements at the plea
hearings expressly refute the notion that his plea was being coerced either by his prior
cocaine addiction or by his conditions of confinement:
MR. CATLETT [counsel for Hunter]: And now that you’ve been
withdrawn from [cocaine], is that a factor in your decision here today to
enter a plea of guilty, the fact that you can’t get cocaine right now?
DEFENDANT HUNTER: No . . . pleading guilty here isn’t going to help me
get cocaine.”
* * * * *
MR. CATLETT: I understand that [cocaine is] an extremely addictive drug,
and that’s my concern. But is that addiction that you have being a factor in
your entering this plea today?
DEFENDANT HUNTER: No. I’ll grant you this: that my using cocaine
was a factor in me committing crimes, all right, but it isn’t a factor in me
pleading guilty or not guilty.
* * * * *
-10-
MR. CATLETT: Now, the fact that you’re in that situation, locked
down in solitary confinement, being mistreated, in your mind, is that a
factor you have considered in deciding to enter a plea of guilty?
DEFENDANT HUNTER: Well, the only factor that that is, is a factor
that, you know, I don’t want to be there any longer than I have to, O.K.
But the situation as a coercement? No. I wanted to plead guilty before
I was ever in 5-C.
* * * * *
I’m being held in a--under atrocious conditions, you know, and that’s
not my motivation to plead guilty. I’ve been trying to plead guilty from
day one.
* * * * *
I’ve been wanting to plead guilty since I’ve been arrested.
* * * * *
MR. CATLETT: Now, in discussing this plea of guilty situation, that’s
been your position right from the start, hasn’t it? . . . To plead guilty and
ask for the death penalty?
DEFENDANT HUNTER: From day one.
Based upon the post-plea testimony of the pharmacologist and Dr. O’Connor, Hunter
argues that his decision to plead guilty and virtually invite the death penalty was not
rational. But the Constitution does not require that a plea of guilty be rational in that
sense. Rather, courts must ensure the plea “represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). Hunter’s plea met that constitutional
standard.
-11-
IV. Sentencing Issues
Hunter next argues -- in conclusory, shotgun fashion -- that the trial court in
many ways conducted an arbitrary, improper sentencing that violated Hunter’s due
process, equal protection, and Eighth Amendment rights. The district court granted
a COA on this issue as framed in paragraph 2.F of Hunter’s COA application. We
limit our review accordingly.
Hunter argues the trial court gave inadequate consideration to the substantial
mitigating evidence in the sentencing record. In a capital case, the sentencing court
may not exclude mitigating evidence from consideration as a matter of law. See
Eddings v. Oklahoma, 455 U.S. 104, 113-115 (1982). The transcript of Hunter’s
sentencing hearing demonstrates that the trial court heard and expressly considered
mitigating evidence. (The judge’s postconviction deposition testimony is not to the
contrary.) The relative weight the trial court gave that evidence, compared to the
overwhelming evidence of multiple aggravating factors, is not a proper subject of
federal habeas review. In addition, some of the cumulative mitigating evidence on
which Hunter now relies was not developed until the postconviction evidentiary
hearing, so it obviously could not have been considered at sentencing.
We likewise reject Hunter’s contention the trial court erred in its consideration
of aggravating factors. “A state court’s finding of an aggravating circumstance in a
particular case . . . is arbitrary or capricious if and only if no reasonable sentencer
could have so concluded.” Lewis v. Jeffers, 497 U.S. 764, 783 (1990). Here,
substantial evidence supported the finding of three aggravating factors -- that Hunter
had prior murder and serious assaultive convictions, that he murdered the Hodgeses
during a robbery, and that the murder of Richard Hodges was committed during the
murder of Mildred Hodges. There was no improper “double-counting” of aggravating
circumstances. Cf. Lowenfield v. Phelps, 484 U.S. 231, 246 (1988).
-12-
Hunter further argues the trial court improperly considered his PSR. Because
there was no timely objection, the Missouri Supreme Court reviewed this contention
for plain error and found none. See Hunter, 840 S.W.2d at 866. Assuming we should
apply the same standard of review, rather than consider the issue procedurally barred,
see Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.), cert. denied, 118 S. Ct. 189
(1997), we agree with the Missouri Supreme Court that consideration of the PSR did
not amount to “manifest injustice.” See also State v. McMillin, 783 S.W.2d 82, 96
(Mo. banc), cert. denied, 498 U.S. 881 (1990).
Hunter also suggests the trial court improperly shifted the burden of proof to
Hunter at sentencing. He offers no factual support for this allegation, and it is
without merit. Also without merit is his contention the trial court failed to issue valid
written findings of statutory aggravating factors. In the Warrant of Execution, the
trial court found three aggravating circumstances proved beyond a reasonable doubt,
and found they “outweigh[ed] the existence of any mitigating factors.” This complied
with the requirements of Mo. Rev. Stat. § 565.030.4. See Hunter, 840 S.W.2d at 868.
V. Ineffective Assistance of Counsel
Hunter next argues in the most conclusory fashion that he was provided
constitutionally ineffective assistance of counsel at every stage of the pretrial, plea,
and sentencing proceedings. All claims of ineffective assistance up through the entry
of Hunter’s guilty plea are without merit because he voluntarily discharged counsel
and pleaded guilty despite counsel’s contrary advice. See United States v. Schmidt,
105 F.3d 82, 89-90 (2d Cir.), cert. denied, 118 S. Ct. 130 (1997); United States v.
Windsor, 981 F.2d 943, 947 (7th Cir. 1992). Given Hunter’s long-standing resolve
to plead guilty, his contention that counsel could have done anything to dissuade
Hunter from this course of action is sheer speculation. And the trial and
-13-
postconviction record clearly refute the contention that Hunter was prejudiced by
counsel’s failure to pursue an adequate mental health defense.
Hunter was again represented by counsel at sentencing, and he argues counsel
was ineffective in numerous respects at that proceeding. Counsel’s alleged failure to
object to improper sentencing procedures was not prejudicial because, as we have
explained, the sentencing procedures were not improper. See Carter v. Hopkins, 92
F.3d 666, 671 (1996), cert. denied, 117 S. Ct. 1113 (1997). Defense counsel called
many witnesses at sentencing and then vigorously argued the mitigating
circumstances which these witnesses sought to address. The trial court was not
persuaded, but that does not mean counsel’s assistance was ineffective. Indeed,
before pronouncing sentence, the trial court told defense counsel, “You have done the
best you can with what you have. . . . You don’t have much with Mr. Hunter.”
Mindful of the “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689
(1984), we conclude the district court and the state courts properly rejected Hunter’s
claims of ineffective assistance of counsel.
VI. Denial of an Evidentiary Hearing
Hunter argues the district court erred in denying him an evidentiary habeas
hearing “because Petitioner alleged facts which if proven would entitle him to relief.”
When the state courts have held multiple evidentiary hearings, as in this case, that is
not the proper standard. See, e.g., Thatsaphone v. Weber, 137 F.3d 1041, 1045-46
(8th Cir.), cert. denied, 118 S. Ct. 1822 (1998); Clemmons v. Delo, 124 F.3d 944, 952
(8th Cir. 1997), cert. denied, 118 S. Ct. 1548 (1998). Hunter was given full hearings
in the state courts. The trial court, the Rule 24.035 motion court, and the Missouri
Supreme Court all made specific findings on each of the three claims on which he
now seeks habeas relief. To the extent Hunter seeks to introduce facts not submitted
-14-
to the state courts,4 he must overcome his prior procedural default by showing cause
and prejudice, which he has not even attempted to do. See Keeney v. Tamayo-Reyes,
504 U.S. 1, 11 (1992); McCann v. Armontrout, 973 F.2d 655, 658 (8th Cir. 1992),
cert. denied, 507 U.S. 942 (1993). To the extent Hunter simply wishes to rehash
evidence previously submitted to the state courts, he has not established any of the
grounds set forth in § 2254(d)(1)-(8) for overcoming the presumption of correctness
to which the state court findings are otherwise entitled. See Thompson v. Keohane,
516 U.S. 99, 107-09 (1995). Though we recognized in Clemmons that the federal
habeas court retains discretion to hold an evidentiary hearing even when one is not
required, we conclude the district court did not abuse its discretion in denying a
hearing in this case.
The judgment of the district court is affirmed. Hunter’s Renewed Application
for Certificate of Probable Cause to Appeal filed September 11, 1998, is denied.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
4
For example, the addendum to Hunter’s brief includes a lengthy affidavit from
psychologist Robert L. Smith purporting to show that Hunter’s prior mental health
evaluations were all inadequate. The affidavit is dated November 10, 1997, long after
these appeals commenced. It was attached to a Rule 60(b) motion submitted to the
district court in March 1998. We are not advised whether the district court has ruled
on that motion. The affidavit is not properly part of the record on appeal.
-15-