Chuck Lee Mathenia v. Paul Delo , 99 F.3d 1476 ( 1996 )

BEAM, Circuit Judge.

Chuck Mathenia, under sentence of death, appeals the district court’s¹ denial of his request for relief under Rule 59(e) of the Federal Rules of Civil Procedure. We affirm.

I. BACKGROUND

This case is before us for a second time. Mathenia v. Delo, 975 F.2d 444 (8th Cir.1992), cert. denied, 507 U.S. 995, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993). The relevant facts are largely set out in our prior opinion and will be repeated here only to the extent necessary. Mathenia was convicted of two counts of capital murder for the brutal stabbing deaths of Daisy Nash and her mentally impaired sister Louanna Bailey. Mathenia knew both of the sisters and, in fact, had been living with Daisy for some time. Several months before the murders, Mathenia had been arrested for allegedly twice raping Louanna. Although the charges were later dropped, Mathenia had vowed revenge on the two sisters, including telling his step-sister that he should kill Louanna for having him arrested.

On the day of the murders, Mathenia had been drinking heavily. After returning to Daisy’s home, he and Daisy had a heated argument. Mathenia violently beat Daisy and stabbed her to death. He then proceeded to Louanna’s home, several blocks away. After telling Louanna that he had just killed Daisy, Mathenia stabbed Louanna to death. Mathenia was later arrested for and confessed to the murders. Mathenia was convicted of both murders and was sentenced to death. As an aggravating factor, the jury found that the murders were “outrageously or wantonly vile, horrible or inhuman in that [they] involved torture or depravity of mind.”²

Mathenia’s convictions and sentences were affirmed on direct appeal and his state post-conviction relief was denied. State v. Mathenia, 702 S.W.2d 840 (Mo.), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986); Mathenia v. State, 752 S.W.2d 873 (Mo.Ct.App.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 809 (1989). Mathenia then filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254. The district court denied the petition. This court affirmed, holding that: (1) Mathenia’s trial counsel was not constitutionally ineffective; (2) although the statutory aggravating circumstance was facially vague, it was properly limited by the finding of torture; and (3) Mathenia’s mental retardation did not prevent him from having the degree of culpability necessary to justify capital punishment. Mathenia, 975 F.2d at 453.

Following our denial of habeas relief, Mathenia filed a motion for relief from the district court’s judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Rule 60(b) allows for relief from a judgment for several enumerated reasons, including mistake and fraud. Subsection (b)(6) provides for relief from a judgment for “any other reason justifying relief.”³ Fed.R.Civ.P. 60(b)(6). In the motion, Mathenia alleged that new, but previously unavailable, evidence established both prejudice resulting from his counsel’s ineffective assistance and his innocence of capital murder.

The district court construed the Rule 60 motion as a second petition for habeas corpus relief. Because the arguments raised in the motion had been presented in the prior habe-as action, the district court determined the claims were successive. Thus, the district court found it could only reach the merits of petitioner’s claims on a showing of either cause and prejudice or a miscarriage of justice. Finding neither, the district court denied Mathenia’s Rule 60 motion. Mathenia v. Delo, No. 89-0088-C at 8 (E.D.Mo. June 2, 1993) (June Order).

The district court applied the standard announced in Sawyer v. Whitley to determine whether the miscarriage of justice exception had been satisfied. Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 2524-25, 120 L.Ed.2d 269 (1992) (habeas petitioner must show, by clear and convincing evidence, that but for a constitutional error,, no reasonable juror would have found him guilty). The district court reviewed the mental examination evidence and found that Mathenia had not shown actual innocence. June Order at 7. '

Mathenia originally appealed the denial of Rule 60(b)(6) relief, but later moved to dismiss that appeal. He then filed a timely motion under Rule 59(e) to alter or amend the June 2,1993 judgment. In his Rule 59(e) motion, Mathenia objected to many of the legal conclusions made by the district court in its June order, including the use of the Sawyer v. Whitley actual innocence standard, and the correctness of the district court’s denial of mental examinations prior to his habeas corpus hearing.

Mathenia’s actual innocence argument relied on the United States Supreme Court’s decision in Schlup v. Delo, which was decided after the district court’s denial of Rule 60 relief. Schlup v. Delo, — U.S. -, -, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995). Schlup held that the less stringent Murray v. Carrier standard, instead of the Sawyer standard, was to be applied to claims that a constitutional error has resulted in the conviction of one who is actually innocent of the crime. Id. (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986) (habeas petitioner must show that a constitutional violation has probably resulted in the conviction of one who is actually innocent to avoid a procedural bar to consideration of the merits of constitutional claims)).

With regard to the mental examination argument, Mathenia alleged that the district court’s denial of mental examinations in conjunction with the first habeas corpus action, was cause to excuse his failure to fully develop the evidence in that proceeding. Mathenia’s counsel had requested such examinations to help in the presentation of the ineffective assistance of trial counsel claim. Two pre-trial mental examinations had shown that although Mathenia was mildly mentally retarded, he was not suffering from a mental disease or defect. At the habeas level, the district court reviewed the record containing those evaluations and denied further mental evaluations, stating that Mathenia’s present mental state was not relevant to the claim of ineffective assistance of trial counsel. Mathenia alleges that such denial was erroneous and excuses his previous failure to more fully develop this argument.

The district court found that these arguments “could have been, and in fact were, presented to and rejected by the Court in the June Order.” Mathenia v. Delo, No. 4:89-CV-88 at 3 (E.D.Mo. August 10, 1995) (August Order). The district court then reanalyzed the mental examination evidence under the Schlup/Carrier standard and again found that Mathenia had not shown actual innocence. The court also determined that its prior denial of mental examinations was not cause to excuse Mathenia’s procedural default. Consequently, the district court denied Rule 59(e) relief. August Order at 5. Mathenia now appeals that order.

II. DISCUSSION

In this procedurally intricate appeal, Mathenia attempts to introduce evidence that was not presented in his first habeas proceeding through a Rule 59(e) motion to amend a judgment from an earlier Rule 60 proceeding. The evidence includes proof of his brain damage and mental retardation. This psychological evidence largely comes from the reports of three physicians. Using this evidence, Mathenia attempts to show that his trial counsel was ineffective. He also asserts that the evidence shows that he was not capable of achieving the requisite mental state for capital murder. Our prior decision disposes of both of these issues. See Mathenia, 975 F.2d at 447, 453.

Mathenia argues that allowing him to present the now-available mental examination evidence at his first habeas proceeding would have established the prejudice that resulted from his trial counsel’s allegedly deficient performance. In concluding that Mathenia’s trial counsel was not constitutionally ineffective, however, we found no instances of deficient performance in this regard. Mathenia, 975 F.2d at 448, 452. Had our opinion found the prejudice prong of Strickland v. Washington’s ineffective assistance of counsel test to be determinative, Mathenia’s current argument might be more compelling. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (to establish constitutionally ineffective assistance of counsel, petitioner must show both deficient performance and prejudice resulting from such deficiency). However, because of our finding that counsel’s performance was not deficient, Mathe-nia’s present argument does not affect our earlier decision.

Mathenia also asserts that he is innocent of the crime of capital murder because of his diminished mental capacity at the time of the murders. Such capacity allegedly prevented him from deliberating as to those murders. See, e.g., State v. Eggers, 675 S.W.2d 923, 925-26 (Mo.Ct.App.1984) (capital murder requires both premeditation (thinking about the act, for however short a period of time) and deliberation (cool reflection)). See also State v. Gilmore, 650 S.W.2d 627, 629 (Mo.1988). We expressly rejected this argument as to premeditation in our earlier opinion. See Mathenia, 975 F.2d at 453. Furthermore, we agree with the district court’s determination that there was ample evidence of deliberation, including the lapse of time between the murders, to allow for reflection before the second murder.

Turning to the matter now before the court, we review a district court’s denial of Rule 59(e) relief under an abuse of discretion standard. See, e.g., Twin City Const. Co. v. Turtle Mtn. Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir.1990). An abuse of discretion will only be found if the district court’s judgment was based on clearly erroneous factual findings or erroneous legal conclusions. International Ass’n of Machinists and Aerospace Workers, Dist. Lodge No. 19 v. Soo Line R.R., 850 F.2d 368, 374 (8th Cir.1988), cert. denied, 489 U.S. 1010, 109 S.Ct. 1118, 103 L.Ed.2d 181 (1989). Under this standard, we find no abuse of discretion in the district' court’s denial of Rule 59(e) relief. Our determination of whether the district court abused its discretion is dependent upon an examination of the correctness of the earlier Rule 60 ruling. Therefore, our discussion begins with that ruling.

The district court correctly construed Mathenia’s Rule 60 motion as a second petition for habeas corpus relief and declined to review the merits of Mathenia’s successive claims. See Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, 506 U.S. 1088, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993); Blair v. Armontrout, 976 F.2d 1130, 1134 (8th Cir.1992), cert. denied, 508 U.S. 916, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993). The claims were successive because they raised “grounds identical to grounds heard and decided on the merits in [his] previous petition.” Sawyer v. Whitley, 505 U.S. at 338, 112 S.Ct. at 2518. The court could not, therefore, reach the merits of the claims unless Mathenia showed cause and prejudice. Id. at 339, 112 S.Ct. at 2518-19. Without a showing of cause and prejudice, the court could only hear the merits of his claims if its failure to do so would constitute a miscarriage of justice. Id.; Joubert v. Hopkins, 75 F.3d 1232, 1244 (8th Cir.), cert. denied, — U.S.-, 116 S.Ct. 2574, 135 L.Ed.2d 1090 (1996). Mathenia alleges he has satisfied both the cause and prejudice and the miscarriage of justice tests.⁴ We address each argument in turn.

A. Cause and Prejudice

In considering whether Mathenia has met the cause prong of the cause and prejudice test, we must determine whether some objective factor external, to his defense prevented him from presenting or developing the factual or legal basis of his constitutional claim. Ruff v. Armontrout, 77 F.3d 265, 267 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 226, 136 L.Ed.2d 158 (1996); Joubert, 75 F.3d at 1242. Mathenia wants to use the district court’s denials of his requests for mental evaluations in conjunction with his first habeas corpus action as “cause” to excuse his successive claims, alleging these denials prevented him from fully developing his claims of ineffective assistance of counsel and diminished capacity. We disagree with this reasoning.

Some examples of factors external to the defense which prevent a petitioner from developing the factual or legal basis of a claim are interference by the state,.ineffective assistance of counsel, conflicts of interest, and legal novelty. Joubert, 75 F.3d at 1242. The district court’s denial of requests for further mental evaluations does not excuse Mathenia’s previous failure to fully develop his claims. The district court only denied the mental examinations after two mental health experts examined Mathenia and found that he was not suffering from any mental disease or defect. Furthermore, it was entirely possible for Mathenia to develop this mental examination evidence, in spite of the district court’s denial of his requests, as is evidenced by his presentation of that information now. Consequently, we find that the district court’s denial of mental evaluations is not cause for the failure to present such evidence in the first habeas corpus action.

Mathenia’s argument in this regard is basically a rephrasing of his earlier ineffective assistance of counsel claim. He argues that his trial counsel was ineffective in failing to pursue the diminished capacity defense or present the mental examination evidence. We previously rejected this argument, finding no breach of duty by Mathenia’s trial counsel. Mathenia, 975 F.2d at 447, 453. Accordingly, we find that the district court correctly refused to reconsider the merits of this claim.

Because we conclude that Mathenia has not shown cause, we need not address the prejudice prong of the equation. Nevertheless, we add that Mathenia has not shown prejudice on these facts. As the district court determined, even considering the new mental evaluation evidence, the Schlup standard of actual innocence was not met and Mathenia did not suffer actual prejudice. August Order at 5. Even taking into account the diminished capacity evidence, the evidence presented at trial overwhelmingly showed both premeditation and deliberation. Such evidence included the threats of revenge after the rape charges and the delay between the murders, which at least allowed time for deliberation before commission of the second murder. Mathenia had even asked his step-sister about the likely penalty for murder, shortly before the murders. Therefore, Mathenia has not met the prejudice prong of the cause and prejudice test.

B. Miscarriage of Justice

Mathenia also alleges he has shown his actual innocence to satisfy the miscarriage of justice exception. We disagree. We note that Mathenia does not claim that he did not commit these murders. Instead, he claims that because of his diminished capacity, he was incapable of deliberation. Because deliberation was an element of the crime of capital murder at the time of these murders, Mathenia argues that his diminished capacity renders him actually innocent of both the crime of capital murder and of the death penalty.

The standard for showing actual innocence, as recently modified by the United States Supreme Court’s decision in Schlup, requires Mathenia to come forth with new evidence showing that a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime. Schlup v. Delo, — U.S. at -, 115 S.Ct. at 865. On these facts, Mathenia has made no such showing. As the district court observed,

Assuming the full veracity of this evidence, the petitioner has not established that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. See Schlup, — U.S. at -, 115 S.Ct. at 866. Taking into account the prosecution’s evi-deneé of petitioner’s actions prior to and on the date of the murders, the Court finds that a jury could have reasonably inferred that petitioner acted deliberately and with premeditation even if it had considered the petitioner’s institutional records, family history, and recent medical opinions of three mental health experts.

August Order at 5.

As earlier indicated, the evidence at trial showed that Mathenia had announced his plan to retaliate against the victims for having him arrested on the rape charges. Even if Mathenia had been incapable of deliberation before he killed Daisy, his first victim,'the evidence revealed that he rode his bicycle two blocks to Louanna’s home to commit the second murder. Based on the evidence introduced at trial, a rational fact-finder would find that Mathenia .“was capable of, and i[n] fact did, deliberate before he killed the victims.” Id.

Mathenia farther argues that the district court applied the wrong standard of actual innocence. We acknowledge that the district court quoted the Sawyer v. Whitley standard, instead of the Schlup standard, in its June order. At the time the district court entered its June order, however, Schlup had not yet been decided. Furthermore, the August order and not the June order has been appealed to this court. In the August order, the district court elaborated on its reasoning in the earlier order and relied heavily on the Schlup standard for actual innocence. Because the district court’s August order applied the proper standard to find that Mathenia had not shown actual innocence, Mathenia’s argument fails.

Because Mathenia has not shown either cause and prejudice for his successive claims, or that a miscarriage of justice will result from application of the procedural bar, we find that the district court correctly denied Mathenia’s Rule 60 motion. Based upon that determination, we find that the district court was correct in denying Rule 69(e) relief. As previously stated, the district court’s denial of Rule 59(e) relief is reviewed for an abuse of discretion. Because the district court correctly denied Mathenia’s motion for Rule 60(b)(6) relief, we find no abuse of discretion in the court’s refusal to alter or amend that judgment!

III. CONCLUSION

Upon this finding of no abuse of discretion in the district court’s denial of Mathenia’s Rule 59(e) motion to alter or amend its previous judgment, we affirm the judgment of the district court.

1 . The Honorable Carol Jackson, United States District Judge for the Eastern District of Missouri.

2 . The jury also found, with regard to Louanna's murder, the additional aggravating circumstance, that her murder was committed to prevent her. from testifying in a judicial proceeding.

3 . Mathenia's motion for relief from judgment, although brought under subsection (b)(6), was largely based on allegations of new evidence (mental examinations). Such motions based on new evidence must be made within one year of the judgment from which relief is sought. Fed.R.Civ.P. 60(b). Mathenia’s motion would have been untimely under subsection (b)(3). Mathe-nia presumably relied on subsection (b)(6) to avoid the time constraints of subsection (b)(3).

4 . We recognize that Mathenia does not agree that his Rule 60 motion should have been treated as a second habeas petition. Anticipating our treatment as such, however, Mathenia altema-lively argued that he has met both the cause and prejudice test and the miscarriage of justice exception to the procedural bar.