19 F.3d 1547 (8th Cir. 1994), 93-1852, Battle v. Delo

Docket Nº:93-1852.
Citation:19 F.3d 1547
Party Name:Thomas Henry BATTLE, Plaintiff-Appellant, v. Paul K. DELO, Defendant-Appellee.
Case Date:March 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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19 F.3d 1547 (8th Cir. 1994)

Thomas Henry BATTLE, Plaintiff-Appellant,


Paul K. DELO, Defendant-Appellee.

No. 93-1852.

United States Court of Appeals, Eighth Circuit

March 28, 1994

Submitted Sept. 15, 1993.

Suggestion for Rehearing En Banc Denied May 27, 1994.

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Richard A. Ahrens, St. Louis, MO, argued, for appellant.

Millie E. Aulbur, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before BEAM, Circuit Judge, FLOYD R. GIBSON and JOHN R. GIBSON [**], Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

Thomas Henry Battle, convicted of capital murder and sentenced to death, appeals from the district court's 1 order denying his petition for habeas corpus. Battle brings various claims of ineffective assistance of counsel at the guilt and penalty phases of his state trial, instructional error, improper admission of a confession, and unconstitutional jury selection. We affirm the judgment of the district court.

Battle was convicted of capital murder and sentenced to death in the Circuit Court for the City of St. Louis, Missouri, in 1981. The Supreme Court of Missouri affirmed Battle's conviction and sentence. State v. Battle, 661 S.W.2d 487 (Mo. banc 1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). In 1984, Battle filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 27.26. 2 The court appointed counsel to represent him, held an evidentiary hearing, and denied his Rule 27.26 motion. The Missouri Court of Appeals affirmed the denial of Battle's Rule 27.26 motion. Battle v. State, 745 S.W.2d 730 (Mo.Ct.App.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988). Battle then filed a pro se petition for writ of habeas corpus in the United States District Court for the Western District of Missouri. The Western District transferred the case sua sponte to the Eastern District of Missouri, where the district court, without appointing counsel, denied Battle federal habeas relief. On Battle's appeal of the denial of his habeas petition, a panel of this court reversed and remanded the case to the district court with directions to appoint him counsel. Battle v. Armontrout, 902 F.2d 701 (8th Cir.1990). In 1990, the district court appointed counsel, and Battle filed an amended habeas petition. The district court denied Battle's motion for federal habeas relief and refused to issue a certificate of probable cause so he could press his appeal of that court's decision. A panel of this court granted a certificate of probable cause on April 8, 1993. Battle's execution has been stayed until the conclusion of these proceedings. Battle appeals from the district court's denial of his petition for federal habeas relief, 814 F.Supp. 1412.

Battle was convicted of raping Birdie Johnson, an eighty-year old woman, and then stabbing her to death with a butcher knife in her apartment in St. Louis. Battle, 661 S.W.2d at 488. Battle, eighteen at the time of the murder, lived with his parents in a nearby apartment. He often performed odd jobs for the elderly woman. At 2:30 or 3:00 a.m. on July 5, 1980, Battle and Tracy Rowan were drinking and smoking marijuana in Battle's bedroom. After Battle suggested they steal Birdie Johnson's television, Rowan and Battle walked to her apartment, ripped the screen on an open kitchen window, and climbed in through the window. There was substantial evidence from which the jury concluded Battle and his companion beat and raped Johnson and ransacked her apartment. When Rowan turned on a light, Battle apparently announced Johnson would have to die because she had seen them. He then "commenced

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stabbing the elderly, naked, beaten and ravished woman." Id. at 489. Because the knife kept bending when he stabbed her in the abdomen, Battle finally plunged the blade into her face, just under her left eye. She remained alive, "saying short prayers," for several more hours after Battle and his companion left through the kitchen window. Id.

Battle raises six issues on appeal. First, he contends that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his trial counsel did not investigate certain witnesses purportedly involved in the crime or combat the State's serology evidence. Second, Battle argues that he was denied due process because the state trial court gave improper jury instructions. Third, he contends that the state trial court allowed into evidence a confession which he claims the State obtained improperly. Fourth, he argues that the state trial court wrongly excluded a venireperson for cause based on the venireperson's beliefs about the death penalty. Fifth, Battle contends the district court erred in denying his request for an evidentiary hearing to assess the evidence relating to his ineffective assistance of counsel claims. Finally, Battle argues that we should remand this case and assign it to a different district court judge for further proceedings.


Battle first contends he was denied effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments. Battle presents four claims of ineffective assistance of counsel: (1) that trial counsel failed to locate Charles Hall and Julius Henderson as witnesses and therefore failed to present their testimony concerning Elroy Preston's role in the crime; (2) that counsel failed to locate and present the testimony of Pearl Thompson, Elroy Preston's girlfriend at the time of the crime, even though her first name was listed on police reports; (3) that his attorney did not call Tracy Rowan and Elroy Preston as witnesses; and (4) that counsel failed to combat serology evidence because he did not engage in a lengthy cross-examination of the State's expert and because he did not obtain blood and saliva samples from Preston.

We engage in an independent review of ineffective assistance claims as they present mixed questions of law and fact; however, we review the district court's findings of fact under the clearly erroneous standard. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989).

At the outset, we recognize that before a petitioner can bring a federal habeas action, he must have presented the same legal theories and factual bases to the state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Kenley v. Armontrout, 937 F.2d 1298, 1301 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). Claims not presented to the state court are procedurally barred unless appellant can show cause or actual prejudice; if he cannot meet this standard, he can present these claims to the federal courts if failure to hear them would result in a "miscarriage of justice" because he has evidence of his "actual innocence." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); see Schlup v. Delo, 11 F.3d 738, 739-40 (8th Cir.1993); Kenley, 937 F.2d at 1301. "Actual innocence" means he must show "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under the applicable state law." Sawyer, --- U.S. at ----, 112 S.Ct. at 2517. The actual innocence exception is "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993).

In McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3056, 125 L.Ed.2d 739 (1993), we held that this standard applies not only to claimed actual innocence of the death penalty, but also to challenges to convictions, and in Cornell v. Nix, 976 F.2d 376, 381 (8th Cir.1992) (en banc), cert. denied, --- U.S.

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----, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993), this court en banc cited McCoy with approval. We decline Battle's invitation to revisit McCoy. As a panel we must follow the decisions of another panel as the law of the circuit. Moreover, Cornell expresses the position of the court en banc, which we are bound to follow. Accord Schlup, 11 F.3d at 740.


The district court found Battle's claims as to Hall and Henderson were procedurally barred.

With respect to Charles Hall, the district court held, and Battle concedes, the ineffective-assistance claims were procedurally barred because he failed to raise them at the state level. Therefore a federal court cannot review them on appeal unless Battle shows cause, prejudice or actual innocence. See Herrera, --- U.S. at ----, 113 S.Ct. at 862; Sawyer, --- U.S. at ----, 112 S.Ct. at 2518; Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). The district court found that even if the issues were not procedurally barred, the decision not to investigate Hall, who Battle claims would have said that Preston was on the scene, did not show that trial counsel's legal representation fell below a reasonable level of assistance.

The district court determined Battle's challenge to his counsel's decision not to interview Julius Henderson was procedurally barred because Battle failed to raise this claim in the state court. However, the court stated that if it were to consider the issue, his claim did not provide a basis for federal habeas relief because trial counsel had no notice of the existence of Henderson and therefore no duty to interview him. The district court concluded Battle failed to prove that the witness could be found through...

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