Weeks v. Bowersox
| Decision Date | 24 July 1997 |
| Docket Number | No. 95-4123,95-4123 |
| Citation | 119 F.3d 1342 |
| Parties | Rubin R. WEEKS, Appellant, v. Mike BOWERSOX, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alan G. Kimbrell (argued), St. Louis, MO, for appellant.
Cassandra K. Dolgin, Asst. Atty. Gen. (argued), Jefferson City, MO, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.
Rubin Weeks pled guilty in Missouri state court to charges of kidnaping and rape and was sentenced to concurrent terms of thirty years and life imprisonment. Although Weeks defaulted his postconviction relief and was denied collateral relief in the Missouri state court, Weeks petitioned for federal habeas relief in the district court. 1
The district court denied relief to Weeks without an evidentiary hearing, holding that Weeks defaulted on his federal habeas claims by failing to make a timely petition to the Missouri state court for postconviction relief. The district court also held that Weeks had shown neither cause and prejudice for his default nor actual innocence of the kidnaping and rape charge. Weeks appeals, arguing that his actual innocence entitles him to an evidentiary hearing. Weeks asserts that he has made the requisite showing for a hearing on his defaulted federal claims. First, Weeks maintains that he has shown evidence of his actual innocence. Second, Weeks asserts that, in the absence of evidence, his allegation that he is actually innocent, coupled with his unsupported claim that he could produce evidence of his innocence, is sufficient. Third, Weeks argues that, even if he has not established his actual innocence, his assertions that exculpatory evidence exists are sufficient to entitle him to a hearing at which he could develop evidence of his actual innocence. We affirm. 2
Shortly after midnight on October 13, 1991, Ms. Jolynn Alicia [Doe], a young woman who was then twenty-one years of age, was driving home through Cape Girardeau, Missouri, from her place of work. Weeks, an illiterate thirty-year-old ex-convict,
had seen [Ms. Doe] at her place of employment and had followed her as she was driving home.... As [Weeks] was driving behind her, he flashed his lights seven or eight times which caused her to pull over. She had her doors locked and her windows rolled up. He came up to the side of the car and had indicated to her that there was some trouble with a back taillight or some part of the back of her car. She rolled down her window enough to hear what he was saying, and the next thing she knew a hand with a butcher-type knife had come in and was slashing at her hands, which were on top of the steering wheel and cut her hands. [Weeks] then was able to get the door open; [he] took her out of the car; took her to his car, and started driving with her towards Bollinger County. While they were still in Cape [Girardeau] County, [Weeks] ordered her to take off her clothes, which she removed from the lower part of her body. [Weeks] then performed an act of sodomy by putting his finger in her vagina while they were still in Cape Girardeau County and while he had the knife there under his leg as he was driving the car. She saw [Weeks] cross the Bollinger County line into Bollinger County, and in Bollinger County they continued to a farm, where he took her near a barn and raped her on a blanket and also performed various types of sodomy at that time too.... [Weeks then] went and took his belt and stood over her with his belt in his hands. [Ms. Doe] felt that [Weeks] was considering strangling her. [Ms. Doe] felt that she was about to die. Instead [Weeks] went to his car and got duct tape by which he used to tie her ankles and her knees and her hands, and he left her tied there in Bollinger County and [then Weeks] drove off. [Ms. Doe] was able to get free and ultimately got to the authorities.
Tr. of Plea of Guilty & Sentence (Feb. 13, 1992) at 23-25, reprinted in Resp't's Ex. F at 23-25 ().
Weeks was subsequently arrested in Mississippi and extradited to Missouri. After returning to Missouri, Weeks was charged with the kidnaping and rape of Ms. Doe. On February 13, 1992, Weeks pled guilty in Missouri state court to the charges. Weeks's counsel explained to the state trial court that, pursuant to a plea agreement and in response to Weeks's guilty plea,
the State has agreed to dismiss ... all the charges except the two to which we have pled, the kidnaping and the rape. [The state prosecutors] have also agreed that whatever sentence you impose on those two charges shall run concurrently. They have also agreed and they have produced records which support their position that if they would file as a Class X offender, it would increase the further time before he could be considered for parole to eighty percent. They have declined to do that upon a valid plea to our charges. So you have the discretion to sentence him from five years to thirty in one case, from ten to life on another case, but you are to run them concurrently as a prior and persistent offender.
Id. at 16, reprinted in Resp't's Ex. F at 16 (). When asked by the trial court if he understood the plea agreement, Weeks responded, "Yes." Id. at 17.
Weeks's attorney also explained that Weeks pled guilty
because I have advised him concerning the law, that [the plea agreement] gives him some opportunity for parole at some date in the future, albeit it could be a far date. My advice to him was we didn't think by going to trial the other way, that he has the realistic opportunity that he would be able to receive probation in light of the amount of charges that were B and A felonies. So he has never maintained--he has given confessions to the charges and he has admitted his involvement, and he feels this is the best of the choices he has.
Id. at 20-21, reprinted in Resp't's Ex. F at 20-21 (). Weeks agreed that his counsel's statement was accurate. See id.
At the plea hearing, Weeks admitted that he kidnaped and raped Ms. Doe:
Q. [by The Court] Mr. Weeks, I'll ask you a number of questions this afternoon about your desire to enter pleas of guilty. If at any time you do not understand my questions, interrupt me and let me know that, and I'll explain the questions further. Okay?
A. [by the defendant] Yes, sir.
Q. First of all, will all of your answers to my questions be truthful?
A. Yes, sir.
Q. Has anyone told you not to tell the truth?
A. No, sir.
....
Q. Did Mr. Robbins [Weeks's defense counsel] read the Petitions to you?
A. Yes, sir.
Q. And did he go over the Petitions with you?
A. Yes, sir.
Q. Did he explain the contents of the Petitions to you?
A. Yes, sir.
Q. Do you understand the contents of the Petitions?
A. Yes, sir.
Q. Is there anything in here that you do not understand?
A. No, sir.
Q. Let me ask you about these charges. First, from the Cape Girardeau County case.
MR. SWINGLE [the prosecutor]: Your Honor, in the Cape Girardeau County case, he is pleading to Count I, which is kidnaping, and in the Bollinger County case, he is pleading to Count II, which is rape.
Q. Okay, in Count I, did you on October 13 of last year unlawfully remove Jolynn Alicia [Doe], without her consent, from her car on County Road 350, which was about approximately 150 yards from the intersection of County Road 350 and Highway 72?
A. Yes.
....
Q. Let me ask you, on Count II, on the Bollinger County case, did you also on October 13th of last year, and that would be in Bollinger County, whereas the other was in Cape [Girardeau] County, in Bollinger County did you have sexual intercourse with Jolynn Alicia [Doe]?
A. Yes.
Q. And was that without her consent?
A. Yes.
Q. Did you use force?
A. Yes.
Q. And did you also display a deadly weapon in a threatening manner?
A. Yes.
Q. What was that weapon?
A. A knife.
Q. A knife, okay. Well, what did you do? Tell me in your own words what happened about these two crimes, one in Cape Girardeau County and one in Bollinger County, that makes you think you are guilty?
A. Because I am guilty.
Q. I understand, but tell me in your own words what happened on these two charges that makes you think that you are guilty of the crime?
A. Because I did what they said I did.
Q. So everything in those charges is true and correct?
A. Yes.
Q. No question about that?
A. No, sir.
Id. at 2-6, reprinted in Resp't's Ex. F at 2-6 (emphasis added). 3
Weeks also agreed that his plea was voluntary:
Q. [By the Court] Now, have any other promises been made by anyone to get you to plead guilty?
A. [By the defendant] No, sir.
Q. Has anyone forced you or threatened you in any way to get you to plead guilty?
A. No, sir.
Q. Is your mind clear today?
A. Yes.
Id. at 17-18, reprinted in Resp't's Ex. F at 17-18. 4
At the sentencing phase of Weeks's hearing, Weeks's attorney argued strongly that Weeks should receive a sentence of a determinate number of years, rather than a life sentence. Weeks's counsel stated:
I'm not trying in any way to diminish the fact that the young lady was assaulted, and I'm sure it has affected her, and I don't want it to do that; however, my obligation is to Mr. Weeks. His life is also, maybe not ended, but certainly has been changed. Judge, we are going to ask that you impose a sentence, not a life sentence but a term of years.... [I]f you choose the thirty year period, sixty percent of thirty years is eighteen years before he is even eligible to be released. Judge, this has been a difficult situation for everybody concerned. [Weeks] also because he has health problems. The problems are obvious. There is some speculation that his life expectancy is not that long. He has a wife and he has children himself. I believe that the reason he is choosing this, he has...
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