Lynda Branch v. William R. Turner, Superintendent, Renz Correctional Center William Webster, Attorney General of the State of Missouri , 37 F.3d 371 ( 1994 )

ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC.

The suggestion for rehearing en banc is denied. Judge Bowman, Judge Beam, Judge Loken, and Judge Hansen would grant the suggestion for rehearing en banc.

The petition for rehearing by the panel is also denied.

On the panel’s motion, the attached opinion and dissent containing expanded discussion on pages 374-75 and 376-77 are substituted for the opinion and dissent filed June 28, 1994.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

FAGG, Circuit Judge.

After the Missouri Court of Appeals dismissed Lynda Branch’s consolidated direct and postconviction appeals under Missouri’s fugitive dismissal rule, Branch brought this 28 U.S.C. § 2254 habeas application asserting the dismissal was inconsistent with due process. The district court denied the application. Because we conclude the Missouri appellate court arbitrarily applied the fugitive dismissal rule to dismiss Branch’s appeals, we reverse and remand to the district court for issuance of a writ.

In 1986, a jury convicted Branch of the first-degree murder of her husband, but the Missouri Court of Appeals reversed the conviction because of erroneously excluded evidence. State v. Branch, 757 S.W.2d 595, 598-601 (Mo.Ct.App.1988). On retrial, a jury again convicted Branch of first-degree murder. The trial court ordered a hearing to consider Branch’s motion for a new trial and to sentence her. When Branch, who was free on bail, breached her promise to appear at the hearing, the trial court denied her new trial motion and issued an arrest warrant. See Mo.Rev.Stat. § 544.665 (1987). Police officers found Branch in a neighboring county three days later and returned her for sentencing. Four days after Branch was returned, the trial court sentenced her to the mandatory term of life imprisonment without parole eligibility for fifty years.

On the same day the trial court sentenced Branch, she appealed her conviction and sentence. See id. § 547.070. Because Branch’s appeal was timely filed even if measured from the original sentencing hearing that she missed, Branch’s three-day absence caused no delay to the commencement of appellate proceedings. See Mo.S.Ct.R. 30.01(d) (notice of appeal must be filed within ten days of final judgment). Based on asserted errors during her second trial, Branch also filed a timely motion for postconviction relief, which the trial court denied. Branch appealed this order as well. , See Mo.S.Ct.R. 29.15(j). The Missouri Court of Appeals consolidated Branch’s direct appeal and her postconviction appeal. See Mo.S.Ct.R. 29.15(l). Although both parties fully briefed and orally argued the case’s merits before the Missouri Court of Appeals, the appellate court dismissed the consolidated appeals under the Missouri fugitive dismissal rule.

The Missouri Supreme Court first applied the fugitive dismissal rule more than one hundred years ago. See State v. Carter, 11 S.W. 979 (Mo.1889). In Carter, the court dismissed the appeal of a sentenced defendant who escaped after filing the appeal because the defendant’s escape prevented the court from rendering an enforceable judgement and the court would not permit the fugitive to trifle with the court’s operations in this way. Id. at 980. Since Carter, Missouri appellate courts have used the fugitive dismissal rule to protect themselves from defendants whose fugitive activity delays, disrupts, or distracts the courts’ proper operation. See State v. Kearns, 743 S.W.2d 553, 554-55 (Mo.Ct.App.1987). In recent years, the Missouri appellate courts have expanded the rule to dismiss the appeals of convicted defendants who failed to appear for sentencing, but were returned to the trial court and sentenced before filing an appeal. See, e.g., id. (dismissing defendant’s appeal after defendant’s six-year absence from trial court caused administrative complications in appellate court and would prejudice state on retrial); State v. Wright, 763 S.W.2d 167, 168 (Mo.Ct.App.1988) (dismissing defendant’s appeal after defendant’s five-month flight delayed filing of the appeal). Missouri appellate courts recognize that the fugitive dismissal rule’s use discourages unlawful flight, promotes the dignity of appellate court proceedings, and preserves respect for the legal system. Robinson v. State, 854 S.W.2d 393, 395 (Mo.1993) (en banc); Wright, 763 S.W.2d at 168.

Without suggesting that Branch’s failure to appear interfered with the appellate process, threatened any appellate court functions, or otherwise had any effect on its orderly operation, the Missouri Court of Appeals invoked the fugitive dismissal rule and dismissed Branch’s consolidated appeals. State v. Branch, 811 S.W.2d 11, 12 (Mo.Ct.App.1991). The court held that Branch’s “fail[ure] to appear as ordered for sentencing,” by itself, “operates to disentitle [Branch’s] right of appeal.” Id. at 11, 12. The only explanation the court gave for the dismissal was preservation of public respect for Missouri’s system of law. In response to Branch’s federal habeas application, the State suggests the Missouri appellate court’s dismissal of Branch’s appeals also furthers the State’s interest in deterring trial court disappearances. The district court concluded the dismissal of Branch’s appeals did not violate Branch’s due process rights.

. Branch does not challenge the constitutionality of Missouri’s fugitive dismissal rule. Rather, Branch contends the Missouri appellate court arbitrarily applied the rule to her because dismissing her appeals in the circumstances of her case does not advance any of the rule’s purposes. Branch points out that her failure to appear at the original sentencing hearing, three-day absence, and return to custody for sentencing all took place before she filed her notice of appeal, which was timely even if measured from her original sentencing date. Because Branch’s flight had no effect on appellate processes, Branch contends the appellate court violated her due process rights by dismissing her appeals under the fugitive dismissal rule. We agree.

Before discussing the merits, we first consider a threshold issue: whether we must apply the nonretroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), to Branch’s contention. See Caspari v. Bohlen, — U.S.-,-, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). The nonretroactivity principle prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after the prisoner’s conviction and sentence become final. Id. Because the principle is not jurisdictional, a federal court may decline to apply it if the state does not argue it. Id. Put another way, a state can waive the nonretroactivity principle by failing to raise it. Schiro v. Farley, — U.S.-,-, 114 S.Ct. 783, 788-89, 127 L.Ed.2d 47 (1994).

Missouri waived Teague’s nonretroactivity principle in responding to Branch’s appeal. Missouri mentions the principle only twice in its brief. In the procedural history section, Missouri states that it raised the Teague principle in the district court. Missouri later mentions the principle in a one-sentence footnote buried on the last page of the state’s lone argument — that the district court properly rejected Branch’s due process claim on the merits. Missouri did not mention the nonretroactivity principle or cite Teague in its statement of the issues on appeal, and did not develop the Teague issue with supporting argument in its brief. Under these circumstances, Missouri waived our consideration of the Teague issue. See Larson v. Nutt, 34 F.3d 647, 647-648 (8th Cir.1994) (per curiam) (skeletal assertion does not raise issue on appeal); Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (passing reference to issue without discussion does not bring issue before court), cert. denied, — U.S.-, 115 S.Ct. 356, — L.Ed.2d- and — U.S., -, 115 S.Ct. 357, — L.Ed.2d-(1994); United States v. Panet-Collazo, 960 F.2d 256, 261 n. 3 (1st Cir.) (issues mentioned in a perfunctory way without developed argument deemed waived), cert. denied, — U.S.-, 113 S.Ct. 220, 121 L.Ed.2d 158 and cert. denied, — U.S.-, 113 S.Ct. 645, 121 L.Ed.2d 574 (1992). We thus decline to consider whether granting habeas relief to Branch requires the retroactive application of a new rule in violation of Teague.

As we turn to the merits of Branch’s appeal, we make a preliminary observation. In her habeas petition, Branch pleaded a blanket due process claim. The district court analyzed Branch’s claim under proce-' dural due process principles, and the parties’ briefs on appeal focus on procedural due process. Nevertheless, at oral argument both parties acknowledged this is really a substantive due process case. Because we believe our refusal to consider the substantive due process question would be inconsistent with substantial justice, we exercise our discretion to consider this question of law on appeal. See Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721-22, 85 L.Ed. 1037 (1941); Seniority Research Group v. Chrysler Motor Corp., 976 F.2d 1185, 1187 (8th Cir.1992); Cleland v. United States, 874 F.2d 517, 522 n. 6 (8th Cir.1989).

Branch initially concedes the federal constitution does not guarantee' state criminal defendants the right to appeal. Both Branch and the State agree, however, that in integrating an appellate process into Missouri’s criminal justice system, the state’s appellate procedures must comply with the Due Process Clause of the federal constitution’s Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985); see Bell v. Lockhart, 795 F.2d 655, 657 (8th Cir.1986). The Due Process Clause contains a substantive component that protects individuals from government action that is arbitrary, Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986), conscience-shocking, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952), oppressive in a constitutional sense, DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989), or interferes with fundamental rights, United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987). See Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) (to same effect). Thus, in a ease like this, a state appellate court cannot deny the right to appeal through the arbitrary application of an appellate rule. Evitts, 469 U.S. at 404-05, 105 S.Ct. at 840-41; Allen v. Duckworth, 6 F.3d 458, 459-60 (7th Cir.1993), cert. denied, — U.S.--, 114 S.Ct. 1106, 127 L.Ed.2d 417 (1994); Olson v. Hart, 965 F.2d 940, 943 (10th Cir.1992). In keeping with due process, state appellate courts must apply their rules governing appellate review in a way that provides “a fair opportunity to obtain an adjudication on the merits of [an] appeal.” Evitts, 469 U.S. at 405, 105 S.Ct. at 841. The parties do not dispute that these principles apply equally to Branch’s postconviction appeal.

Although the state-granted right to appeal must be administered within the boundaries of due process, the right may be denied to accommodate other legitimate appellate interests. It is well settled that a state may, consistent with the federal constitution, dismiss the appeal of a defendant who is a fugitive during the pendency of the defendant’s appeal. See Allen v. Georgia, 166 U.S. 138| 17 S.Ct. 525, 41 L.Ed. 949 (1897) (upholding state’s dismissal of appeal of defendant who escaped and was recaptured during appeal); Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (upholding state statute providing for appellate dismissal when defendant escapes during pendency of appeal). We also see no constitutional impediments for a state appellate court to dismiss a defendant’s appeal simply because the defendant’s fugitive status begins and énds during trial court proceedings. A defendant’s pre-appeal flight may cause delay in appellate proceedings, disrupt an appellate court’s scheduling, interfere with orderly appellate review, or prejudice the state on retrial. If a defendant’s pre-appeal flight disturbs the orderly operation of a state appellate court, we believe the sanction of dismissal is justified. See Ortega-Rodriguez v. United States, — U.S. -,-, 113 S.Ct. 1199, 1208, 122 L.Ed.2d 581 (1993) (reviewing application of Eleventh Circuit’s fugitive dismissal rule under supervisory power of federal courts); id. at-, 113 S.Ct. at 1211 (Rehnquist, C.J., dissenting). When a state appellate court vindicates the intrusion on its processes by applying the fugitive dismissal rule, the .dismissal deters fugitive activity and promotes respect for the judicial system. See id. at-, 113 S.Ct. at 1207 (majority opinion); id. at -, 113 S.Ct. at 1212 (Rehnquist, C.J., dissenting).

If a defendant’s pre-appeal flight does not adversely affect the appellate process, however, there is no rational justification for a state appellate court to strip the defendant of the right to appeal under the fugitive dismissal rule. See Woods v. Kemna, 13 F.3d 1244, 1246 (8th Cir.1994). The fugitive dismissal rule is not an end in itself; instead, it is the means of protecting the appellate interests served by the rule. To use the rule as a general tool of deterrence and respect when appellate interests are not affected divorces the rule from its purpose of protecting appellate courts and arbitrarily transforms the rule from one triggered by appellate consequences into one of automatic dismissal and additional punishment for preappeal flight. See Mo.Rev.Stat. § 544.665 (failure to appear in trial court as ordered is punishable as felony). Thus, our inquiry focuses on whether Branch’s misconduct had any effect on Missouri appellate procedures, justifying an appellate dismissal.

Neither the Missouri Court of Appeals nor the State suggests that Branch’s failure to appear for sentencing in the trial court and three-day flight had any effect on the appellate system. Because the State was forced to locate, capture, and return Branch for sentencing, the short duration of Branch’s flight alone does not mitigate against the rule’s application. Nevertheless, Branch’s abbreviated absence did not delay the onset of appellate proceedings, inconvenience the appellate court’s operation, or disrupt appellate processes. Branch filed her appeal within the ten-day limit measured from the sentencing date she missed. Furthermore, the appellate court did not suggest (and the State does not contend) that Branch’s flight would prejudice the State’s ability to retry Branch if she prevailed on appeal.

In short, Branch’s fugitive status did not trigger any of the appellate consequences the fugitive dismissal rule is designed to protect against, and- thus, the Missouri appellate court had no justification to use the rule as an instrument of deterrence and respect. In these circumstances, the Missouri appellate court’s misuse of the rule to dismiss Branch’s appeals runs against the grain of due process. Indeed, Branch prevailed on her first direct criminal appeal, and neither the Missouri appellate court nor the State suggests that her current appeals are legally frivolous. Thus, the appellate court’s dismissal, based on nothing more than Branch’s failure to appear as ordered for sentencing, is clearly at odds with Missouri’s recognition that a convicted defendant’s liberty should not be curtailed “unless a second judicial decision-maker, the appellate court, was convinced that the conviction was in accord with law.” Evitts, 469 U.S. at 403-04, 105 S.Ct. at 840. In our view, the court deprived Branch of the fair opportunity to obtain a decision on the merits of her appeals in violation of her due process rights.

We reverse the district court’s judgment and remand with directions to grant the writ unless the State takes steps to consider the merits of Branch’s consolidated appeals within a reasonable time fixed by the district court.