Clemmons v. Delo

• Decision Date: 07 October 1997
• Docket Number: No. 96-1086,96-1086
• Citation: 124 F.3d 944
• Parties: Eric CLEMMONS, Appellant, v. Paul DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 944

124 F.3d 944

Eric CLEMMONS, Appellant, v. Paul DELO, Appellee.

No. 96-1086.

United States Court of Appeals Eighth Circuit.

Submitted July 21, 1997.

Decided Aug. 28, 1997.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 7, 1997.

Charles M. Rogers, Kansas City, MO, argued (G. Spencer Miller and Cheryl Pilate, on the brief), for appellant.

Frank A. Jung, Jefferson City, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge, and KORNMANN, ^* District Judge.

RICHARD S. ARNOLD, Chief Judge.

In 1987, Eric Clemmons was convicted and sentenced to death for the murder of a fellow inmate at the Missouri State Penitentiary. Exculpatory evidence was apparently withheld from Clemmons by the State prior to his trial. In addition, evidence that was important to the State's case came in by deposition, raising serious issues under the Confrontation Clause. After exhausting his state remedies, Clemmons filed this petition for a writ of habeas corpus in the United States District Court for the Western District of Missouri. While the District Court agreed that the above two claims probably warranted reversal of Clemmons's conviction, it found that they were procedurally barred and therefore denied Clemmons's petition. This appeal followed, and we affirmed. 100 F.3d 1394 (8th Cir.1996). Clemmons then filed a petition for rehearing by the panel. We granted the petition, ¹ thus vacating the initial panel opinion and judgment, and now reverse the judgment of the District Court.

I.

The District Court and the Missouri Supreme Court have rendered careful and detailed opinions reciting the facts in this case. Clemmons v. Delo, No. 90-0943-CV-W-6, 1995 WL 691864 (W.D.Mo., July 7, 1995) (Memorandum and Order); State v. Clemmons, 753 S.W.2d 901(Mo.) (en banc), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). We will summarize them here only to the extent necessary for our review. On August 7, 1985, Clemmons was an inmate at the Missouri State Penitentiary. Shortly before 9:00 that evening, Corrections Officer Thomas Steigerwald, while walking towards a group of inmates standing near Housing Unit 3, observed one of the inmates grab another, strike him in the chest, and then hit him with a roundhouse punch in the side. Henry Johnson, the inmate who had been struck, ran past Steigerwald to the entrance to the main corridor. As he did so, Steigerwald noticed blood on Johnson's shirt. It was then that Steigerwald realized that a stabbing had occurred.

Steigerwald called for backup on his radio and began to pursue the inmate whom he had seen striking Johnson. That inmate, who was wearing a gray sweatshirt, and another inmate, who was wearing a gray towel around his head, began to move towards the prison chapel. Eventually, these inmates separated, and Steigerwald decided to pursue the one in the gray sweatshirt. He testified that he saw the faces of both inmates, as well as a knife in the hand of the inmate in the gray sweatshirt.

Steigerwald eventually caught up with the inmate in the sweatshirt, who was Clemmons. By that time the sweatshirt had been turned inside out so that it appeared to be white. There was human blood on the gray part of the sweatshirt, though it could not be typed. No knife was ever found.

The inmate in the gray towel was also caught. When his cell was searched, a hat and a school book belonging to Clemmons were found. The book was splattered with blood. The inmate had been seen entering the housing unit carrying the hat and the book shortly after the stabbing. The blood splatters on the hat were human blood of either type B or type AB. Johnson, the victim, had type B blood.

Johnson later died. An autopsy revealed that he had been stabbed three times. The fatal blow was to the left side of his chest and penetrated his heart. He also sustained a stab wound to his left side and another under his right arm. A scratch on his shoulder was also discovered, but it is uncertain whether the scratch was inflicted at the same time as the three stab wounds. Prior to the death, Johnson exclaimed, "they have stuck me in my heart."

Clemmons was charged with murdering Johnson. At his trial, there were two pieces of particularly damaging evidence against him. The first was Steigerwald's testimony identifying him as the person who struck Johnson and as having a knife. The second was testimony from Captain A.M. Gross that Clemmons had stated in Gross's presence, "I guess they got me." Clemmons's defense was that another inmate, Fred Bagby, had killed Johnson, and several inmates testified more or less to that effect. According to Clemmons, what Steigerwald saw was Johnson running into Clemmons after Bagby had already stabbed Johnson. Bagby had died by the time of trial, and the State argued that the testimony of Clemmons's witnesses should be discounted because it was easy for them to try to help Clemmons by blaming someone (Bagby) who could not defend himself.

Clemmons was found guilty. In the penalty phase, several aggravating circumstances were alleged. Most notably, Clemmons was a prisoner under sentence of life imprisonment without possibility of parole for 50 years for another murder when Johnson was killed. The jury sentenced Clemmons to death.

II.

Clemmons alleges that exculpatory evidence was withheld from him prior to his trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Following Clemmons's direct appeal, he discovered an important piece of evidence. On the very day that Johnson was killed, a Department of Corrections inter-office communication was written by Captain A.M. Gross, the same Captain Gross who testified against Clemmons, stating that another inmate had accused Fred Bagby of killing Johnson. The inter-office communication read as follows:

On the above date at approximately 9:30 P.M. I was searching the upper yard for evidence in the stabbing that had taken place about 8:55 P.M. on inmate Johnson, Henry ... when I met and interviewed inmate Clark, Dwight.... Clark said that he had witnessed the assault on Johnson, and that he had seen two (2) men stabbing Johnson. He described both assailants as being black, and he thought one was inmate Fred Bagby but only knew the second inmate by sight. When questioned in detail Clark did not make sense and further investigation reflects that Clark's statement is untrue.

This evidence was not provided to Clemmons's attorney, despite a discovery request for "[a]ny material or information ... which tends to negate the guilt of the defendant." ²

Clemmons raised the failure to disclose this memo in his initial postconviction motion under Rule 29.15 of the Missouri Rules of Criminal Procedure. The memo itself was introduced in evidence at the 29.15 hearing without objection from the State. Clemmons did not, however, call Clark as a witness, even though he had subpoenaed Clark, and Clark was available to testify. In fact, Clemmons himself specifically chose not to call Clark as a witness.

The 29.15 court denied Clemmons's motion, but did not discuss the Brady issue. Clemmons then appealed to the Missouri Supreme Court. See Clemmons v. State, 785 S.W.2d 524(Mo.) (en banc) (affirming denial of postconviction relief), cert.denied, 498 U.S. 882, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990). There, however, his lawyer, contrary to repeated instructions from Clemmons, failed to raise the issue of the undisclosed evidence. Clemmons, in an effort to save the issue, attempted to file a pro se supplemental brief with the Missouri Supreme Court, but his motion for leave to file the brief was denied.

Clemmons once again raised the Brady issue in his petition for a writ of habeas corpus before the District Court. That Court held that the claim was procedurally barred.

A.

Clemmons's initial difficulty stems from the fact that the Brady issue was not raised in the appeal from the denial of postconviction relief. Omission of this issue was a serious mistake by Clemmons's appointed counsel, perhaps the sort of mistake that, if committed at trial or on direct appeal, would amount to ineffective assistance in violation of the Sixth and Fourteenth Amendments, but error of this kind on the part of postconviction counsel cannot be "cause" to excuse a procedural default. See Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991); Nolan v. Armontrout, 973 F.2d 615 (8th Cir.1992).

What we have here, however, goes beyond a mere omission on the part of counsel. After counsel had been appointed to represent Clemmons on his 29.15 appeal (counsel different from the lawyer who had represented him in the postconviction trial court) Clemmons wrote the new lawyer to request that he be kept informed. He specifically stated that he wanted all of his issues preserved. Appointed counsel, however, filed a brief in the 29.15 appeal without giving Clemmons an opportunity to review it and without including in the brief all of the issues previously raised in the trial court. Petitioner then wrote counsel and instructed him to file a supplemental brief raising the additional issues. Clemmons specifically drew the attention of counsel to the danger that issues not raised would later be held not to have been properly presented. "I want you to lay the ground work so if the Missouri Supreme Court refuse [sic] to hear [the unbriefed issues] the record will clearly show we tried to present them." Letter of December 26, 1989, App. 270. Counsel refused, stating that he had "made every argument on your behalf that I felt could be supported by law and evidence." Letter of December 29, 1989, App. 271.

Clemmons then made a motion in the Missouri Supreme Court for leave to file a supplemental brief pro se. This motion recites that appointed counsel had filed a brief raising only six points, that Clemmons had requested in writing that every other ground preserved by the...