37 F.3d 371 (8th Cir. 1994), 92-3935, Branch v. Turner

Docket Nº:92-3935.
Citation:37 F.3d 371
Party Name:Lynda BRANCH, Appellant, v. William R. TURNER, Superintendent, Renz Correctional Center; William Webster, Attorney General of the State of Missouri, Appellees.
Case Date:September 21, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 371

37 F.3d 371 (8th Cir. 1994)

Lynda BRANCH, Appellant,


William R. TURNER, Superintendent, Renz Correctional Center;

William Webster, Attorney General of the State of

Missouri, Appellees.

No. 92-3935.

United States Court of Appeals, Eighth Circuit

September 21, 1994

Submitted Sept. 15, 1993.

Page 372

State prisoner filed habeas application asserting that Missouri appellate court's dismissal of her appeals pursuant to Missouri's fugitive dismissal rule was inconsistent with due process. The United States District Court for the Western District of Missouri, D. Brook Bartlett, J., denied application, and appeal was taken. The Court of Appeals, Fagg, Circuit Judge, held that: (1) Missouri waived Court of Appeals' consideration of nonretroactivity principle by mentioning principle only twice in its appellate brief and by not mentioning principle in its statement of the issues on appeal, and (2) prisoner's failure to appear in trial court for sentencing and three-day flight did not trigger any of the appellate consequences Missouri's fugitive dismissal rule was designed to protect against and thus, Missouri appellate court's use of rule deprived prisoner of fair opportunity to obtain decision on merits of her appeals in violation of her due process rights.

Reversed and remanded with directions.

Bowman, Circuit Judge, filed dissenting opinion.

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Cyril Hendricks, Jefferson City, MO, argued, for appellant.

John Simon, Asst. Atty. Gen., Jefferson City, MO, argued, for appellees.



The suggestion for rehearing en banc is denied. Judge Bowman, Judge Beam, Judge Loken, and Judge Hansen would grant the suggestion for rehearing en banc.

The petition for rehearing by the panel is also denied.

On the panel's motion, the attached opinion and dissent containing expanded discussion on pages 374-75 and 376-77 are substituted for the opinion and dissent filed June 28, 1994.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

FAGG, Circuit Judge.

After the Missouri Court of Appeals dismissed Lynda Branch's consolidated direct and postconviction appeals under Missouri's fugitive dismissal rule, Branch brought this 28 U.S.C. Sec. 2254 habeas application asserting the dismissal was inconsistent with due process. The district court denied the application. Because we conclude the Missouri appellate court arbitrarily applied the fugitive dismissal rule to dismiss Branch's appeals, we reverse and remand to the district court for issuance of a writ.

In 1986, a jury convicted Branch of the first-degree murder of her husband, but the Missouri Court of Appeals reversed the conviction because of erroneously excluded evidence. State v. Branch, 757 S.W.2d 595, 598-601 (Mo.Ct.App.1988). On retrial, a jury again convicted Branch of first-degree murder. The trial court ordered a hearing to consider Branch's motion for a new trial and to sentence her. When Branch, who was free on bail, breached her promise to appear at the hearing, the trial court denied her new trial motion and issued an arrest warrant. See Mo.Rev.Stat. Sec. 544.665 (1987). Police officers found Branch in a neighboring county three days later and returned her for sentencing. Four days after Branch was returned, the trial court sentenced her to the mandatory term of life imprisonment without parole eligibility for fifty years.

On the same day the trial court sentenced Branch, she appealed her conviction and sentence. See id. Sec. 547.070. Because Branch's appeal was timely filed even if measured from the original sentencing hearing that she missed, Branch's three-day absence caused no delay to the commencement of appellate proceedings. See Mo.S.Ct.R. 30.01(d) (notice of appeal must be filed within ten days of final judgment). Based on asserted errors during her second trial, Branch also filed a timely motion for postconviction relief, which the trial court denied. Branch appealed this order as well. See Mo.S.Ct.R. 29.15(j). The Missouri Court of Appeals consolidated Branch's direct appeal and her postconviction appeal. See Mo.S.Ct.R. 29.15(l ). Although both parties fully briefed and orally argued the case's merits before the Missouri Court of Appeals, the appellate court dismissed the consolidated appeals under the Missouri fugitive dismissal rule.

The Missouri Supreme Court first applied the fugitive dismissal rule more than one hundred years ago. See State v. Carter, 11 S.W. 979 (Mo.1889). In Carter, the court dismissed the appeal of a sentenced defendant who escaped after filing the appeal because the defendant's escape prevented the court from rendering an enforceable judgment and the court would not permit the fugitive to trifle with the court's operations in this way. Id. at 980. Since Carter, Missouri appellate courts have used the fugitive dismissal rule to protect themselves from defendants whose fugitive activity delays, disrupts, or distracts the courts' proper operation. See State v. Kearns, 743 S.W.2d 553, 554-55 (Mo.Ct.App.1987). In recent years, the Missouri appellate courts have expanded the rule to dismiss the appeals of convicted defendants who failed to appear for sentencing, but were returned to the trial court and sentenced before filing an appeal. See, e.g., id. (dismissing defendant's appeal after defendant's six-year absence from trial court caused administrative complications in appellate

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court and would prejudice state on retrial); State v. Wright, 763 S.W.2d 167, 168 (Mo.Ct.App.1988) (dismissing defendant's appeal after defendant's five-month flight delayed filing of the appeal). Missouri appellate courts recognize that the fugitive dismissal rule's use discourages unlawful flight, promotes the dignity of appellate court proceedings, and preserves respect for the legal system. Robinson v. State, 854 S.W.2d 393, 395 (Mo.1993) (en banc); Wright, 763 S.W.2d at 168.

Without suggesting that Branch's failure to appear interfered with the appellate process, threatened any appellate court functions, or otherwise had any effect on its orderly operation, the Missouri Court of Appeals invoked the fugitive dismissal rule and dismissed Branch's consolidated appeals. State v. Branch, 811 S.W.2d 11, 12 (Mo.Ct.App.1991). The court held that Branch's "fail[ure] to appear as ordered for sentencing," by itself, "operates to disentitle [Branch's] right of appeal." Id. at 11, 12. The only explanation the court gave for the dismissal was preservation of public respect for Missouri's system of law. In response to Branch's federal habeas application, the State suggests the Missouri appellate court's dismissal of Branch's appeals also furthers the State's interest in deterring trial court disappearances. The district court concluded the dismissal of Branch's appeals did not violate Branch's due process rights.

Branch does not challenge the constitutionality of Missouri's fugitive dismissal rule. Rather, Branch contends the Missouri appellate court arbitrarily applied the rule to her because dismissing her appeals in the circumstances of her case does not advance any of the rule's purposes. Branch points out that her failure to appear at the original sentencing hearing, three-day absence, and return to custody for sentencing all took place before she filed her notice of appeal, which was timely even if measured from her original sentencing date. Because Branch's flight had no effect on appellate processes, Branch contends the appellate court violated her due process rights by dismissing her appeals under the fugitive dismissal rule. We agree.

Before discussing the merits, we first consider a threshold issue: whether we must apply the nonretroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), to Branch's contention. See Caspari v. Bohlen, --- U.S. ----, ----, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). The nonretroactivity principle prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after the prisoner's conviction and sentence become final. Id. Because the principle is not jurisdictional, a federal court may decline to apply it if the state does not argue it. Id. Put another way, a state can waive the nonretroactivity principle by failing to raise it. Schiro v. Farley, --- U.S. ----, ---- - ----, 114 S.Ct. 783, 788-89, 127 L.Ed.2d 47 (1994).

Missouri waived Teague 's nonretroactivity principle in responding to Branch's appeal. Missouri mentions the principle only twice in its brief. In the procedural history section, Missouri states that it raised the Teague principle in the district court. Missouri later mentions the principle in a one-sentence footnote buried on the last page of the state's lone argument--that the district court properly rejected Branch's due process claim on the merits. Missouri did not mention the nonretroactivity principle or cite Teague in its statement of the issues on appeal, and did not develop the Teague issue with supporting argument in its brief. Under these circumstances, Missouri waived our consideration of the Teague issue. See Larson v. Nutt, 34 F.3d 647, 647-648 (8th Cir.1994) (per curiam) (skeletal assertion does not raise issue on appeal); Laborers' Int'l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (passing reference to issue without discussion does not bring issue before court), cert. denied, --- U.S. ----, 115 S.Ct. 356, --- L.Ed.2d ---- and --- U.S. ----, 115 S.Ct. 357, --- L.Ed.2d ---- (1994); United States v. Panet-Collazo, 960 F.2d 256, 261 n. 3 (1st Cir.) (issues mentioned in a perfunctory way without developed argument deemed waived), cert. denied, --- U.S. ----, 113 S.Ct. 220, 121 L.Ed.2d 158 and cert. denied, --- U.S. ----,

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113 S.Ct. 645, 121 L.Ed.2d 574 (1992). We thus decline...

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