152 F.3d 863 (8th Cir. 1998), 97-3579, Ashker v. Class

Docket Nº:97-3579.
Citation:152 F.3d 863
Party Name:Lewis E. ASHKER, Appellant, v. Joseph CLASS, Warden, South Dakota Penitentiary, and Mark W. Barnett, Attorney General of South Dakota, Appellees.
Case Date:August 14, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 863

152 F.3d 863 (8th Cir. 1998)

Lewis E. ASHKER, Appellant,

v.

Joseph CLASS, Warden, South Dakota Penitentiary, and Mark W.

Barnett, Attorney General of South Dakota, Appellees.

No. 97-3579.

United States Court of Appeals, Eighth Circuit

August 14, 1998

Submitted May 14, 1998.

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[Copyrighted Material Omitted]

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Roberto A. Lange, Sioux Falls, South Dakota, argued, for Appellant.

Gary R. Campbell, Assistant Attorney General, Pierre, South Dakota, argued, for Appellees.

Before McMILLIAN, NOONAN, 1 and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

A state court jury in South Dakota convicted Lewis Ashker of a murder that the prosecutor contended took place on June 13, 1985. The South Dakota Supreme Court affirmed Mr. Ashker's conviction on direct appeal, see State v. Ashker, 412 N.W.2d 97 (S.D.1987), and also affirmed the denial of his petition for a state writ of habeas corpus, see Ashker v. Solem, 457 N.W.2d 473 (S.D.1990).

Mr. Ashker then petitioned for a federal writ of habeas corpus under 28 U.S.C. § 2254. He asserted five grounds for relief: (1) the prosecutor's failure to disclose exculpatory evidence; (2) the state trial court's error in allowing the prosecutor to introduce alleged impeachment evidence in violation of the confrontation clause; (3) prosecutorial misconduct, including the two actions described above, the display of three knives irrelevant to the case, the eliciting from a witness of a reference to the possibility that Mr. Ashker had a prior criminal record, and the failure to ensure that one of the state's witnesses was sequestered during jury selection and while other witnesses were testifying; (4) constitutionally insufficient evidence; and (5) ineffective assistance of counsel, specifically, the failure to interview, and/or to obtain for trial, several potential witnesses, and the failure to obtain an expert witness for trial.

The district court granted Mr. Ashker's petition, holding that it was a violation of the confrontation clause to allow the prosecutor to introduce alleged impeachment evidence that suggested that Kurt Novaock, 2 Mr. Ashker's companion on June 13, came home on the following day with bloody clothes, which Mr. Novaock's wife subsequently destroyed (the district court's opinion is not entirely clear about whether the district court also considered the introduction of that evidence to be prosecutorial misconduct). See Ashker v. Leapley, 798 F.Supp. 590 (D.S.D.1992). Because of its resolution of the confrontation clause issue, the district court did not decide the merits of the other issues that Mr. Ashker asserted in his petition.

On the state's appeal of the district court's order, we reversed, holding that Mr. Ashker had never raised the confrontation clause issue in the state courts (as either trial-court error or prosecutorial misconduct), and therefore that he had failed to exhaust that issue in the state courts before presenting it to a federal court. We held in addition that, because Mr. Ashker could file another petition for a state writ of habeas corpus if he could show reasonable cause under state law for previously failing to assert claims based on the confrontation clause, a non-futile state court remedy still existed that he had to pursue. See Ashker v. Leapley, 5 F.3d 1178 (8th Cir.1993); see also 28 U.S.C. § 2254(c). We did not consider the merits of the other issues that Mr. Ashker asserted in his petition.

Mr. Ashker subsequently petitioned again for a state writ of habeas corpus, presenting claims based on the confrontation clause. The South Dakota Supreme Court affirmed the denial of that petition, see Ashker v. Class, 534 N.W.2d 66 (S.D.1995), holding that Mr. Ashker had failed to show reasonable cause under state law for previously failing to assert those claims.

Mr. Ashker then petitioned again for a federal writ of habeas corpus under 28 U.S.C. § 2254, asserting the same five grounds for relief that were contained in his original petition to the district court. He contended as well that he received ineffective assistance of counsel because of his trial counsel's failure to assert, on direct appeal, claims related to the confrontation clause.

With respect to Mr. Ashker's claims of a violation of the confrontation clause, the district court held that Mr. Ashker had failed to show reasonable cause under federal law for his previous failure to assert those claims in the state courts, that he had therefore defaulted on those claims in the state courts, and thus that he was procedurally barred from bringing them in a federal court. The

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district court also considered the merits of Mr. Ashker's other claims but rejected them. Mr. Ashker appeals, and we affirm the judgment of the district court.

I.

Mr. Ashker alleges that his due process rights were violated by the prosecutor's failure to disclose exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Kyles v. Whitley, 514 U.S. 419, 421, 434-35, 437, 453, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); and United States v. Agurs, 427 U.S. 97, 104, 108, 111, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). That evidence was a sketch showing that tire tracks in the victim's yard measured 71 inches from center to center. The sketch was exculpatory, according to Mr. Ashker, because the tire tracks of Mr. Ashker's truck measured approximately 64 inches center to center. Mr. Ashker argues that the sketch therefore tended to suggest, contrary to the state's theory, that it was not Mr. Ashker's truck that had been in the victim's yard.

As the district court noted, however, the South Dakota Supreme Court adopted the state habeas court's factual findings, first, that the prosecutor learned of the sketch during Mr. Ashker's state trial; second, that as soon as the prosecutor became aware of the sketch, he disclosed its contents to Mr. Ashker; and, third, that the prosecutor also introduced the information from the sketch (although not the sketch itself) into evidence at the state trial. See Ashker v. Solem, 457 N.W.2d at 478. Mr. Ashker's citations of testimony from various witnesses at his state trial and at a hearing on his first petition for a state writ of habeas corpus (the transcripts from both of which we have read) do not, in our view, provide the "clear and convincing" evidence necessary to overcome the presumption of correctness that the law assigns to those findings. See 28 U.S.C. § 2254(e)(1); see also 28 U.S.C. § 2254(d)(2) and Smith v. Jones, 923 F.2d 588, 590 (8th Cir.1991). We therefore reject Mr. Ashker's allegation that the prosecutor failed to disclose exculpatory evidence.

Mr. Ashker suggests in the alternative that even if the prosecutor did disclose the sketch during the state trial, that disclosure came "too late to apprehend its significance and [to] use the evidence." He argues, therefore, that his due process rights were still violated. See, e.g., United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir.1985); United States v. Flaherty, 668 F.2d 566, 588-89 (1st Cir.1981); and United States v. Elmore, 423 F.2d 775, 779 (4th Cir.1970), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54 (1970). "In determining whether disclosure was timely enough to satisfy due process, we consider the prosecution's reasons for late disclosure, ... and [what opportunity] ... the defendant had ... to make use of the disclosed material." LaMere v. Risley, 827 F.2d 622, 625 (9th Cir.1987).

Mr. Ashker apparently does not contend that he was unaware of the tire tracks themselves in the victim's yard. Indeed, Mr. Ashker himself testified during the hearing on his first petition for a state writ of habeas corpus that before trial he had seen at least one photograph of the tire tracks in the victim's yard. Mr. Ashker's trial counsel testified at that hearing as well and stated that before trial he had seen "all kinds of photographs," including at least one that showed "faint ... tracks" in the victim's yard. In addition, at least one police report that presumably was given to Mr. Ashker (and he does not allege to the contrary) specifically mentions "faint vehicle tracks" in the victim's yard. We note as well that Mr. Ashker made no objection to the portions of the state trial testimony by three law enforcement officers that established the existence of the tire tracks in the victim's yard. Nor, while cross-examining those witnesses, did Mr. Ashker ask any questions at all that would suggest that before that testimony, he was unaware of the existence of the tire tracks in the victim's yard.

Mr. Ashker's emphasis, rather, is evidently on the fact that he did not know before trial either that law enforcement officers had measured the width of the tire tracks in the victim's yard or that a discrepancy existed between the 71-inch measurement of those

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tracks and the approximately 64-inch measurement of the tire tracks from Mr. Ashker's truck. It does not seem unreasonable, we observe initially, to suggest that Mr. Ashker's knowledge of the tire tracks themselves in the victim's yard could, or even should, have prompted him to determine whether those tracks could be definitively linked to his truck. If he had done so, he could have learned of the discrepancy himself. Under S.D. R.Crim. P. 23A-13-13, which is identical to Fed.R.Crim.P. 16(b)(1)(B), and S.D. R.Crim. P. 23A-13-14, which is identical to Fed.R.Crim.P. 16(b)(2), moreover, the fact that Mr. Ashker had made such measurements would not have been discoverable by the state if the measurements were not committed to written form and if the measurements were not...

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