Hall v. Luebbers

• Decision Date: 15 July 2002
• Docket Number: No. 01-1899.,01-1899.
• Citation: 296 F.3d 685
• Parties: Donald Joe HALL, Petitioner/Appellant, v. Allen LUEBBERS, Superintendent of Potosi Correctional Center, Respondent/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F.3d 685

Donald Joe HALL, Petitioner/Appellant, v. Allen LUEBBERS, Superintendent of Potosi Correctional Center, Respondent/Appellee.

No. 01-1899.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2002.

Filed: July 15, 2002.

Rehearing and Rehearing En Banc

Denied: September 13, 2002.

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Michael B. Buser, argued, Kansas City, MO, for appellant.

Cassandra Kaye Dolgin, Asst. Atty. Gen., argued, Jefferson City, MO, for appellee.

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Donald J. Hall was convicted in Missouri circuit court of first degree murder and sentenced to death. After the judgment and the denial of post conviction relief were affirmed, Hall filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court¹ denied the petition, but granted a certificate of appealability on sixteen claims. It later amended the certificate to permit Hall to appeal its orders denying his requests for an evidentiary hearing, discovery, and leave to supplement the record. We affirm.

I.

On December 15, 1992, Bill White was shot at close range while working at his jewelry store in Springfield, Missouri. The bullet penetrated the left side of his skull, causing a severe brain hemorrhage. The pathologist who performed the autopsy determined that White had not died instantaneously from the gunshot wound, but more slowly from a massive loss of blood. Police officers who arrived at the scene found White dead, lying face up behind his store counter in a pool of blood. Donald Hall became a target of the investigation after two people who knew him contacted police in early January 1993 to give information implicating him. One was his former wife, Donna Hicks, with whom he was then living. The other was Kimball Morton who had first met Hall in the early 1980s when they shared a prison cell.

On April 2, 1993, Hall was indicted for first degree murder. The state produced evidence at trial to show that Hall had planned and carried out the murder, disposed of incriminating evidence, and sold jewelry from White's store. Donna Hicks testified that she woke around 10:00 a.m. on the day of the murder to discover that Hall and his car were gone. Hall returned to their apartment around 11:00 a.m. and asked that she drive him to White's jewelry store to have a broken necklace fixed. Hicks dropped him off at the store and parked about one block away. She testified that Hall returned in less than ten minutes with a paper bag and blood on his hands. She claimed that Hall told her he had shot White in the head when the jeweler bent over to examine the broken necklace. He then filled the paper bag with a metal jewelry box, White's wallet, and the gun he had used. She reported that Hall said several times that he had killed White because "[t]he only good witness is a dead witness." That day Hall and Hicks disposed of the incriminating evidence and later pawned the jewelry.

Kimball Morton testified that in the week prior to White's death, he and Hall had gone to the jewelry store to have a necklace fixed. On that day Hall had talked to Morton about "going in there and robbing and killing Mr. White" and about how it would be "real easy" because there was "no security, no cameras, or nothin'.... All we have to do is walk in there and shoot him in the head." Morton said that he was reluctant to participate, and Hall dropped the subject. Morton also told police that about two weeks after the murder, Hall admitted to him that he had shot White in the head.

Hall testified at trial to a different story. He said that he had gone to White's store to retrieve a gold chain and two watches or their equivalent in cash. When White told him the watches were worthless and that he had thrown them away, Hall went behind the counter to demand their return. White pulled a gun from a desk drawer, and the two men struggled over it. The gun went off, and a bullet struck White in the head. Hall returned to the car and told Donna Hicks what had happened. He testified that she responded, "Well, we need that money or we need the stuff ... [and] if you're not going in and get it, I'm going in and get it," and that she went back and stole the jewelry. On cross examination, the state discredited Hall's version by asking him about a letter he had written two months after the murder in which he had claimed that White was already dead when he entered the store. The prosecutor also had Hall reenact the struggle with White, and the state claims that the bullet would have discharged upwards if the gun had been fired as Hall indicated. The autopsy evidence showed that the bullet had entered White's skull in a downward direction.

The jury was instructed on first and second degree murder, but not second degree felony murder or involuntary manslaughter, and it convicted Hall of first degree murder. During the subsequent penalty phase of the trial, the state argued that the jury should impose the death penalty because Hall's long and violent criminal history demonstrated that he was incapable of being rehabilitated and that a pattern of escalating criminal conduct had culminated in the murder of White.² The state also argued that Hall had exhibited no remorse for killing White and had left White to bleed to death instead of calling for medical assistance.³ It called three witnesses at the penalty phase. The first testified that Hall had pointed a gun at her, and the second said that Hall had shot at him while fleeing from a burglary. The third was a police officer who testified that Hall had brandished a rifle and threatened to kill a policeman prior to his arrest in 1969 for displaying a dangerous and deadly weapon. Hall called two mitigating witnesses to testify on his behalf. John Mahan, Hall's son, testified that he and his father were close and that he would like to remain in contact with him. LeRoy Carpenter testified that he had met Hall when they were in prison and that they had maintained a close friendship in the intervening eleven years. Both witnesses asked the jury to spare Hall's life.

After its deliberations, the jury found two aggravating circumstances. These were that Hall had committed the murder for the purpose of avoiding lawful arrest and for the purpose of receiving money or any other thing of monetary value. The jury recommended death, and the trial court imposed a death sentence. Hall filed for post conviction relief under Missouri Supreme Court Rule 29.15, and a three day hearing was held. The trial court denied relief, and Hall appealed his conviction and the denial of post conviction relief to the Missouri Supreme Court. That court affirmed after conducting a proportionality review of the sentence of death. State v. Hall, 982 S.W.2d 675, 689-90 (Mo. 1998) (en banc), cert. denied, 526 U.S. 1151, 119 S.Ct. 2034, 143 L.Ed.2d 1043 (1999).

Having exhausted his state remedies, Hall filed this petition in the district court seeking a writ of habeas corpus under 28 U.S.C. § 2254. He raised forty five separate grounds for relief. These included thirty two claims of ineffective assistance of counsel during the state proceedings, five claims of prosecutorial misconduct, and three claims of instructional errors. The other claims were based on evidentiary rulings, venue, Brady violations, shackles used during the penalty phase of trial, and failure of the Missouri Supreme Court to perform a proper proportionality review of his death sentence.

The district court denied the petition, but granted a certificate of appealability on sixteen claims. Thirteen of these claims are for ineffective assistance of counsel, either for ineffective cross examination of state witnesses or for failure to present certain evidence and witnesses at trial. In addition Hall claims that his due process rights were violated by the trial court's refusal to instruct on involuntary manslaughter, by his appearance in shackles during the penalty phase, and by failure to disclose Brady material. The certificate was later amended to permit Hall to appeal the denial of his requests for an evidentiary hearing, discovery, and leave to supplement the record. Hall's motions to expand the certificate to include many other issues, including ineffectiveness of appellate counsel, were denied.

II.

Consideration of Hall's petition, filed on May 31, 2000, is governed by 28 U.S.C. § 2254 (1994 & Supp.1998), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19. Under AEDPA habeas relief cannot be granted on any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established Federal law if it either "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if the state court arrives at a result opposite to one reached by the Supreme Court on "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring, for the Court). An "unreasonable application" of the law is not the same as an incorrect application. Penry v. Johnson, 532 U.S. 782, 793, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). If the state court's application of clearly established federal law was not unreasonable, we may not grant habeas relief even if in our judgment its application was incorrect. Williams, 529 U.S. at 411, 120 S.Ct. 1495.

The district court's...