125 F.3d 1144 (8th Cir. 1997), 96-2581, Sweet v. Delo

Docket Nº:96-2581.
Citation:125 F.3d 1144
Party Name:Glennon Paul SWEET, Appellant, v. Paul DELO, Superintendent, Potosi Correctional Center, Appellee.
Case Date:September 10, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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125 F.3d 1144 (8th Cir. 1997)

Glennon Paul SWEET, Appellant,

v.

Paul DELO, Superintendent, Potosi Correctional Center, Appellee.

No. 96-2581.

United States Court of Appeals, Eighth Circuit

September 10, 1997

Submitted June 12, 1997.

Rehearing and Suggestion for

Rehearing En Banc Denied Oct. 9, 1997.

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Scott M. Martin, Kansas City, MO, argued (Floyd R. Finch, Jr., Terrence J. Secton, Sarah M. Yehle and Jennifer M. Carper, Kansas City, MO, on the brief), for appellant.

Stephen D. Hawke, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Attorney General, on the brief), for appellee.

Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

Glennon Sweet, a prisoner on Missouri's death row, appeals from the judgment of the District Court 1 denying his petition for habeas corpus. We affirm.

I.

On February 8, 1987, Sweet sped past Trooper Russell Harper of the Missouri State Highway Patrol on a highway outside of Springfield, Missouri. Harper turned on his signal lights and gave chase, following Sweet as he turned onto a side road. After Sweet stopped and opened the door of his truck, Harper slowly drove up behind him. Sweet jumped out of the truck, aimed his semi-automatic assault rifle at the trooper's car, and fired several bursts. Twenty-nine bullets hit Harper's vehicle; one struck Harper in the head, killing him. Harper never even unbuttoned the holster flap covering his service revolver.

Sweet was arrested and charged with first-degree murder. After a change of venue to Clay County, he was tried and found guilty. Finding as aggravating circumstances that the murder was committed against a peace officer engaged in his official duties and that it was committed for the purpose of avoiding a lawful arrest, the jury on December 12, 1987 fixed the punishment at death. Following the denial of his motion for a new trial, on January 20, 1988, Sweet was sentenced to death. Sweet took a timely direct appeal to the Missouri Supreme Court and also, pursuant to Missouri Supreme Court Rule 29.15, 2

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filed a pro se post-conviction motion in Clay County Circuit Court, raising a number of constitutional claims. The motion court appointed counsel for Sweet. More than four months after counsel was appointed, Sweet amended his 29.15 motion to assert additional claims. This amended petition was not timely, however, because Sweet was required to file any amendment no later than sixty days after the appointment of counsel. See Mo. Sup.Ct. R. 29.15(f). The motion court denied Sweet's 29.15 motion in September 1989.

In the consolidated appeal, the Missouri Supreme Court held that the claims raised for the first time in Sweet's amended 29.15 motion were not properly raised and declined to consider them. See State v. Sweet, 796 S.W.2d 607, 615 (Mo.1990) (en banc). 3 The court affirmed Sweet's conviction and sentence in the direct appeal and affirmed on the merits the denial of the timely 29.15 claims in the post-conviction appeal. See id. at 610-17. The United States Supreme Court denied certiorari on March 18, 1991. Sweet v. Missouri, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270 (1991).

Days later, Sweet filed this habeas corpus action in federal district court. Counsel was appointed, and Sweet amended his petition several times. The State moved to dismiss, and the District Court ultimately denied relief and dismissed the action on November 22, 1995. Sweet then filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). The court denied Sweet's motion on May 9, 1996, and Sweet appealed to this Court. 4 We granted Sweet a certificate of appealability pursuant to § 102 of the then-newly-enacted Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C.A. § 2253 (West Supp.1997)). Following a dispute about the scope of the certificate of appealability, the appeal proceeded. 5

In this appeal, Sweet raises nineteen claims, which we summarize under twelve

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headings as follows: (1) ineffective assistance of trial counsel during the guilt phase of the trial in (a) failing to investigate certain witnesses and evidence, (b) failing to request a curative instruction or a mistrial during the prosecution's closing argument, (c) failing to investigate and present evidence in support of his motion to suppress evidence, and (d) allegedly being addicted to cocaine during the trial; (2) ineffective assistance of trial counsel during the penalty phase of the trial in (a) failing to object appropriately to the prosecutor's cross-examination of one of Sweet's witnesses, (b) failing to investigate and present certain mitigating evidence, and (c) failing to make an offer of proof to preserve for appeal certain mitigating testimony; (3) misconduct of the prosecutor in (a) introducing a prior bad act during the guilt phase, (b) failing to provide proper notice of the witnesses and evidence to be introduced during the penalty phase, and (c) using Sweet's arrest record to cross-examine one of Sweet's witnesses during the penalty phase; (4) improper exclusion of a juror; (5) improper exclusion of exculpatory evidence during Sweet's cross-examination of one of the prosecution's witnesses; (6) unlawful search and seizure of Sweet's property; (7) improper jury instruction defining reasonable doubt; (8) exclusion of certain mitigating evidence during the penalty phase; (9) improper admission of evidence of a prior bad act during the guilt phase; (10) improper jury instruction on mitigating circumstances during the penalty phase; (11) failure of the Missouri Supreme Court to conduct a meaningful proportionality review; and (12) ineffective assistance of appellate and post-conviction counsel.

II.

We begin by discussing those of Sweet's claims that are not properly before us for one reason or another.

A.

As a rule, we do not consider claims that have not been presented to the District Court. See Hornbuckle v. Groose, 106 F.3d 253, 256 n. 5 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 189, --- L.Ed.2d ---- (1997). We decline to consider two of Sweet's claims for this reason: his search-and-seizure claim (# 6) and his claim that the trial court improperly admitted evidence of a prior bad act against him in the guilt phase (# 9). A claim related to Sweet's ninth claim has been preserved for review; we consider this claim, which turns on prosecutorial misconduct, later in this opinion.

Sweet's sixth claim is also improper for another reason. A Fourth Amendment claim of an unconstitutional search or seizure is not cognizable in a habeas corpus action unless the state has not "provided an opportunity for full and fair litigation" of the claim. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). We are not empowered to examine whether the Missouri courts made errors of law in deciding the Fourth Amendment issues argued by Sweet. See Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir.1994) (en banc), cert. denied, 514 U.S. 1052, 115 S.Ct. 1432, 131 L.Ed.2d 313 (1995). A search-and-seizure claim is cognizable in a habeas action only if "the state provided no procedure by which the prisoner could raise his Fourth Amendment claim, or the prisoner was foreclosed from using that procedure because of an unconscionable breakdown in the system." Id. at 1273. Sweet has not even attempted to make such a showing, nor does the record support it.

B.

Next we discuss those of Sweet's claims that are procedurally defaulted. Sweet defaulted two of his claims by failing to present them to the Missouri courts at any stage of his direct appeal or his post-conviction proceedings. See Nave v. Delo, 62 F.3d 1024, 1030 (8th Cir.1995) (recognizing that failure to present issue to state courts is a default), cert. denied, --- U.S. ----, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). These claims are that trial counsel was ineffective in failing to make an offer of proof of certain mitigating evidence during the penalty phase (# 2c) and that the jury instruction on reasonable doubt violated Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339

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(1990) (per curiam) (# 7). Another claim was defaulted when Sweet failed to raise it in his post-conviction appeal to the Missouri Supreme Court. See Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir.1996) (holding that failure to raise claim in post-conviction appeal is considered abandonment of claim), cert. denied, --- U.S. ----, 117 S.Ct. 2421, 138 L.Ed.2d 185 (1997). This barred claim is that Sweet's trial counsel was ineffective in his handling of the motion to suppress evidence (# 1c). 6

Still other claims are barred because they were first raised in state court in Sweet's untimely amended 29.15 motion, as the Missouri Supreme Court held. See Sweet, 796 S.W.2d at 615. This default encompasses all of Sweet's claims of ineffective assistance of trial counsel (# 1 and # 2).

One of these ineffective-assistance claims requires further discussion. Although it was not raised in a timely 29.15 motion, the Missouri Supreme Court considered one issue on the merits: whether trial counsel was ineffective in failing to investigate or call Freddie Hensley as a witness (part of Sweet's claim # 1a). See id. at 616. When a state court decides an issue on the merits despite a possible procedural default, no independent and adequate state ground bars consideration of that claim by a habeas court. See Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); County Court of Ulster County v. Allen, 442 U.S. 140, 152-54, 99 S.Ct....

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