DocketNumber： 95-2634
Citation Numbers： 92 F.3d 637
Judges： Magill, Heaney, Murphy
Filed Date： 10/21/1996
Status： Precedential
Modified Date： 10/19/2024
dissenting.
I respectfully dissent. After Mack filed his pro se motion in the Missouri circuit court, he was appointed post-conviction counsel. Mack’s counsel, however, promptly abandoned him by failing to file a timely amended motion as required under Rule 29.15.
I. ABANDONMENT
Beginning with Fields v. State, 572 S.W.2d 477 (Mo.1978) (en banc), the Missouri Supreme Court has recognized that a pro se movant for habeas corpus relief is entitled to appointed counsel and that counsel is obligated to file a timely amended motion incorporating all of the movant’s claims. Id. at 482. In Fields, the Missouri Supreme Court, considering the predecessor to Rule 29.15, stated that it was
*645 designed to discover and adjudicate all claims for relief in one application and avoid successive motions by requiring motions to be in questionnaire form and by providing for the appointment of counsel if the motion presents questions of law or issues of fact and the movant is shown to be indigent.
Id. at 480 (emphasis added). By adopting this rule, the state “ ‘assumed complete responsibility for protecting constitutional rights in accordance with federal principles.’ ” Id. at 481 (quoting Anderson, Post>Conviction Relief in Missouri — Five Years Under Amended Rule 27.26, 38 Mo. L.Rev. 21, 43 (1973)). While praising the new rule, the court observed that
delay and confusion rather than speed and finality had been occasioned ... and an excessive number of appeals have resulted from summary denials of pro se motions to vacate sentence or judgment without the appointment of counsel, evidentiary hearings or specific findings of fact or conclusions of law.
Id. at 482.
The court then adopted a three-step process to be followed for all motions under Rule 27.26: (1) the court must appoint counsel for all indigent movants; (2) appointed counsel will have the opportunity and the obligation to amend the motion and to state factually, “in a lawyerlike fashion,” all of the movant’s claims for relief under Rule 27.26; and (3) based on the amended motion, the trial court shall make findings of fact and conclusions of law on all issues presented. Id. at 483. Thus, the Missouri Supreme Court determined that to ensure protection of an indigent movant’s constitutional rights, counsel must be appointed and must submit an amended motion incorporating all of the movant’s claims. The burden was no longer to be solely on the movant, but on appointed counsel. The failure of appointed counsel to file an amended motion would no longer prejudice the movant. In the words of Judge Satz of the Missouri Court of Appeals:
It [would be] incongruous, to say the least, to choose counsel for movant and then penalize the movant because counsel did not fulfill the duty she was chosen for. In effect, movant’s rights [would be] extinguished without meaningful consideration because of the court’s choice and not due to any apparent fault of movant.
Young v. State, 724 S.W.2d 326, 328 (Mo.Ct.App.1987).
The successor to Rule 27.26, Rule 29.15, was adopted January 1, 1988. Mack filed a pro se, post-conviction motion on February 4, 1988. A public defender was appointed to represent him on March 17, 1988. Had Mack’s motion been filed thirty-four days earlier, his case would have been decided under Rule 27.26 and Fields, and he no doubt would have been entitled to have newly-appointed counsel file an amended motion detailing all of his claims. As it was, the Missouri courts determined that Mack’s motion would be decided under the new rule. Although one might question this decision because Mack had been convicted while Rule 27.26 was in effect, I accept the state court’s decision for purposes of this appeal.
Nevertheless, Mack is entitled to the same relief under Rule 29.15 as he would have been under the former rule. Rule 29.15 continues to require appointed counsel to interview the movant and to file a timely amended motion. The rule provides:
Counsel shall ascertain whether sufficient facts support the grounds asserted in the motion and whether the movant has included all grounds known to him.... If the motion does not assert sufficient facts, or include all grounds known to movant, counsel shall file an amended motion that sufficiently alleges the additional facts and grounds.
Rule 29.15(e) (emphasis added). The only change in the rule, significant to this case, is the length of time during which counsel must take action. Nothing in Rule 29.15 changes counsel’s obligations. As the Missouri Supreme Court, sitting en banc, confirmed in Luleff v. State, 807 S.W.2d 495 (Mo.1991) (en banc), an indigent movant is entitled to appointment of new counsel to file an amended 29.15 motion if originally appointed counsel abandons his or her duty. Id. at 498.
In Lulejf, after the movant filed a pro se motion for post-conviction relief, the circuit
determination of whether appointed counsel acted to ascertain whether sufficient facts are asserted in the pro se motion and whether the movant included all grounds known to him. The motion court shall make findings on this point. If the court finds that appointed counsel has not performed as required by Rule 29.15(e), and the lack of performance is not the result of movant’s action or inaction, the court shall appoint new counsel allowing time, if necessary, to amend the pro se motion as permitted under Rule 29.15(f), and the cause shall proceed anew according to the provisions of the rule.
Id. at 497-98.
In a companion opinion issued the same day as Luleff, the Missouri Supreme court reached the same result and prescribed the same remedy. See Sanders v. State, 807 S.W.2d 493, 495 (Mo.1991) (en banc). The Sanders court unfortunately confused matters, however, by stating that Luleff marked a change in course for the Missouri courts, id. at 494, and the majority cites Sanders as support for that proposition. See Maj. Op., supra at 640. With all due respect to the Missouri Supreme Court, which certainly reached a correct result in Fields, Luleff, and Sanders, three of the four cases cited in Sanders do not even involve abandonment. See Young v. State, 770 S.W.2d 243, 244-5 (Mo.1989) (en banc) (relief denied because post-conviction counsel filed timely amended post-conviction motion as minimally required under 29.15); Lingar v. State, 766 S.W.2d 640, 641 (Mo.1989) (en banc) (same); Sloan v. State, 779 S.W.2d 580, 583 (Mo.) (en banc) (same), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990). Those cases merely state the general rule that a post-conviction proceeding cannot be used to challenge the effectiveness of counsel in the post-conviction proceeding. They do not address the situation in which appointed post-conviction counsel entirely abandons his or her duty to timely file an amended motion. In the only relevant cited case, State v. Sweet, 796 S.W.2d 607 (Mo.1990) (en banc), the court considered the issues raised in a late amended motion “ex gratia,” obviating any need for a remand. Id. at 615. Thus, Luleff does not mark a change in Missouri’s recognition and redress of abandonment by post-conviction counsel. Mack is entitled to nothing more and nothing less than Luleff. He is entitled, according to the Missouri Supreme Court, to have this matter remanded to the circuit court to make the required findings.
The majority states that a convicted indigent has no constitutional right to an attorney in a post-conviction proceeding. I do not dispute that as a general statement of the law. As Judge Wollman pointed out in Easter v. Endell, 37 F.3d 1343 (8th Cir.1994), however, “once such a remedy is granted by the state, its operation must conform to the due process requirements of the 14th Amendment.” Id. at 1345 (citing Evitts v. Lucey, 469 U.S. 387, 400-01, 105 S.Ct. 830, 838-39, 83 L.Ed.2d 821 (1985)). Thus, “ ‘only a firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review ... of a federal constitutional claim.” Id. (quoting James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 1835-37, 80 L.Ed.2d 346 (1984)). As discussed above, the Missouri Supreme Court en banc has consistently applied rules 27.26 and 29.15 to require that appointed, post-conviction counsel file a timely amended motion, and if post-conviction counsel fails to do so, a movant is entitled to have new counsel appointed.
The majority contends that if a state incorrectly applies its own procedural rules, as it has clearly done in this case, a movant is not entitled to relief. In other words, if a particular movant is unfortunate enough to have his case presented to a court that disregards established law, he is not entitled to relief. But our court, as indicated by Easter, holds to the contrary. This case presents even a stronger case than Easter because here, the Missouri Supreme Court has not inconsistently applied Rule 29.15; rather when a post-conviction counsel has abandoned his
I do not believe that we have any alternative but to remand to the district court with directions to remand to the state court to permit newly-appointed counsel to file an amended 29.15 motion within thirty days of the appointment.
II. TRIAL ERRORS
The state courts and the federal district court did not address Mack’s abandonment argument. Rather, they considered — and rejected — Mack’s claims as raised in his original, pro se motion, including that (1) two biased persons were permitted to sit on the jury, and (2) the prosecuting attorney improperly commented that Mack was a “killer” who needed to be convicted in order to prevent him from killing again. The majority agreed with the state and federal courts and determined that these claims lack merit. I disagree.
A. Juror Bias
The majority recognizes that Mack has a constitutional right to an impartial jury. They also accurately characterize the record with respect to the two jurors whom Mack’s trial counsel failed to strike for bias. Conceding that whether the two jurors were biased against Mack is a question of fact, I am unable to agree with the majority that the state court’s finding of no bias was fairly supported by the record.
When venireperson Royer stated that a friend’s daughter had been beaten to death five years earlier, she was asked whether this event would have any effect on her view of people who are charged with crimes. She answered, “I don’t know. I really couldn’t say for sure.” (Trial Tr. at 38.) At this point, neither Mack’s counsel nor the court made further inquiry. Forgetting for a moment that further inquiry should have been made, the venireperson’s answer alone indicated that she was not sure in her own mind whether she could be fair. Her expressed uncertainty as to her impartiality, without additional comment, constituted a sufficient basis for her disqualification from the jury. Similarly, venireperson Salsman informed counsel that her sister-in-law’s mother had been shot and raped and that her cousin, a former police officer, had been shot in the line of duty. (Id. at 31, 35.) Salsman expressed doubt that these experiences would affect her ability to serve on the jury, stating, “I think I could sit in judgment.” (Id. at 31.) Yet her bias, based on the experiences alone, was evident from the record.
The majority concludes that Mack has not demonstrated actual bias. Not only do I disagree with their conclusion, but I question how or when Mack could have attempted to further demonstrate the jurors’ bias. The remedy for allegations of juror partiality is an evidentiary hearing at which a defendant has an opportunity to show actual bias. Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 944-45, 71 L.Ed.2d 78 (1982). The majority concedes that Mack was never given such a hearing. See Maj. Op., supra at 644 n. 7. They argue, however, that it was Mack’s failure to make a timely request that prevented him from a hearing in the state court. Id. As discussed above, Mack was abandoned by his post-conviction counsel. At a minimum, we should remand this matter to the state courts for an appropriate evidentiary hearing on juror bias.
B. Prosecutorial Misconduct
I agree with the majority that the comments made by the prosecutor during closing arguments were clearly improper. Referring to Mack, the prosecutor stated:
[T]hat man is a killer. He tried to kill and I’m sure he would do it again given the opportunity.... Everyone who swore and who testified said he’s the killer, he’s the man who shot, he’s the man who tried to kill.... We are fortunate that we have an opportunity to remove from the community a killer, a killer who is just as frightening to the people who live in and about the Stroll as he should be to people who come down there who have no business there.
(Trial Tr. at 257, 270.) In my view, however, these comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.
The prosecutor made repeated references to Mack as a “killer,” despite the fact that
Not only were these comments improper and prejudicial to Mack’s case, but nothing was done by either counsel or the court to minimize their prejudicial effect.
CONCLUSION
For the above-stated reasons, I dissent from the majority opinion. Mack clearly was abandoned by his post-conviction counsel and, at minimum, I would remand this case to the state courts for appointment of new counsel. Alternatively, I would vacate Mack’s convictions because the biased jury and the prosecutor’s improper statements violated Mack’s constitutional right to a fair trial.
. In the untimely, amended motion, the movant claimed, generally, that his trial counsel was ineffective for failing to interview the movant; assigning an inexperienced assistant to represent movant at the hearing; and failing to interview witnesses, at least one of whom would have testified that the movant could not possibly have committed the crime charged. (Legal File at 13-20.)
. I agree with the majority opinion insofar as it holds that Mack's convictions were not the result of unreliable identification by witnesses.
. The majority suggests that Mack's trial counsel's failure to object to the prosecutor's comments may have been a trial strategy with which the court may not have wanted to interfere. See supra at 643. I cannot accept the majority’s suggeslion. In any event, these arguments, again, could have been explored in the context of an evidentiary hearing — a hearing Mack was never given.