46 F.3d 744 (8th Cir. 1995), 94-1463, Sidebottom v. Delo

Docket Nº:94-1463.
Citation:46 F.3d 744
Party Name:Robert T. SIDEBOTTOM, Appellant, v. Paul DELO; Jay Nixon, Appellees.
Case Date:January 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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46 F.3d 744 (8th Cir. 1995)

Robert T. SIDEBOTTOM, Appellant,


Paul DELO; Jay Nixon, Appellees.

No. 94-1463.

United States Court of Appeals, Eighth Circuit

January 26, 1995

Submitted Sept. 14, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied March

22, 1995.

Stay Denied Nov. 6, 1995.

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K. Leslie Delk, Norman, OK, argued, for appellant.

Michael Joseph Spillane, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

Robert T. Sidebottom, convicted and sentenced to death for the capital murder of his seventy-four year old grandmother, May Sidebottom, appeals the district court's 1 order denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We affirm.


The facts giving rise to Sidebottom's conviction are fully set forth in the Missouri Supreme Court's opinion in Sidebottom's direct appeal. State v. Sidebottom, 753 S.W.2d 915 (Mo.) (en banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). We summarize them here briefly.

In the late afternoon of October 3, 1985, Sidebottom and a coworker, Tom Shier, went out for some drinks after work. They stayed out drinking until early the next morning. In his initial statement to police, Sidebottom estimated that he had had ten to fifteen

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beers and about ten caffeine tablets called "mini-whites" during that time.

Sometime during the evening, Sidebottom and Shier stopped at May Sidebottom's home so that Sidebottom could obtain some money from her. Shier stayed in Sidebottom's car while Sidebottom went into the house. Shier testified that Sidebottom was upset when he came back to the car because his grandmother had given him only five dollars and that Sidebottom had intended to get twenty dollars from her. Sidebottom indicated that his grandmother could have given him more money, telling Shier that she had "lots" of money and referring to $14,000 that his grandmother had received in insurance proceeds when his grandfather died. Sidebottom and Shier made several other stops that evening, buying six-packs of beer early in the evening and stopping later at several taverns.

In the early morning hours of October 4, 1985, Sidebottom and Shier left the Class Reunion Bar in Blue Springs, Missouri. Sidebottom asked Shier to drive because he said that he (Sidebottom) had had too much to drink and instructed Shier to take him to his grandmother's house in Independence, Missouri. During the trip, Sidebottom talked about needing money, and he made repeated statements that he was going to rob somebody. He also said that he knew where he could get several thousand dollars and told Shier that he would give Shier $14,000 "to cover for him if anything went wrong." Other witnesses also testified that Sidebottom had often bragged about inheriting his grandmother's money when she died. Laverne Willis, a close friend of May Sidebottom, testified that Sidebottom's relationship with his grandmother "was bad." Several months before the murder, May Sidebottom destroyed her will, which included Sidebottom as a named beneficiary. Rick Alcorn, Sidebottom's neighbor, testified that Sidebottom said that he would kill his grandmother if this would get him into the Mafia.

Sidebottom and Shier arrived at May Sidebottom's house at approximately 1:45 a.m. Sidebottom got out of the car and told Shier not to wait for him. Shier then left in Sidebottom's car as instructed. The evidence indicated that someone had entered May Sidebottom's home after breaking the back door window. Sidebottom told police that he entered his grandmother's home after Shier had dropped him off, but he could not remember how he got in. Once inside, he demanded more money from his grandmother. She became angry and denied his request. Sidebottom stated that he then lost his temper and began beating his grandmother. He further stated that he struck her in the head and back with his fists and a chair until she stopped moving. He then started a fire in a bedroom and fled.

Police arrived at the burning house at approximately 2:35 a.m. They found May Sidebottom still alive but lying unconscious in a pool of blood in the kitchen. She had been brutally beaten, and she died shortly thereafter. Blood was splattered on the floors, walls, and ceiling in the kitchen, dining room, and living rooms. Pieces of a broken chair were found scattered on the floor. An autopsy revealed that May Sidebottom died of multiple injuries, particularly blunt force injury to the head and neck. She suffered a fractured cervical spine, fractured jaw, broken nose, five frontal rib fractures, and three back rib fractures.

The police interviewed Sidebottom as part of their investigation of the murder. During this initial interview, Sidebottom made several incriminating statements to the effect that he may have killed his grandmother. Following his arrest on October 9, 1985, Sidebottom confessed to the murder and recounted the events as described above.

Sidebottom was initially represented by appointed counsel, but he later retained private counsel, Joseph McMullin, to represent him. At trial, McMullin put forth no affirmative defense and called no witnesses. His primary defense tactic was to cross-examine the State's witnesses and criticize the State's evidence. Likewise, the defense presented no evidence during the penalty phase. Counsel presented no testimony from Sidebottom's family, although family members were available to testify.

The jury convicted Sidebottom of capital murder and sentenced him to death. The

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Missouri Supreme Court affirmed the conviction and sentence on direct appeal. State v. Sidebottom, 753 S.W.2d 915 (Mo.) (en banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). Sidebottom attacked his conviction and sentence by filing a motion pursuant to Missouri Supreme Court Rule 29.15. Following a three-day evidentiary hearing, the motion was denied. The denial of the 29.15 motion was also affirmed by the Missouri Supreme Court. Sidebottom v. State, 781 S.W.2d 791 (Mo.1989) (en banc), cert. denied, 497 U.S. 1031, 110 S.Ct. 3295, 111 L.Ed.2d 804 (1990).

On July 6, 1990, Sidebottom filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Missouri raising numerous grounds for relief. The district court appointed counsel to represent Sidebottom, and counsel then filed an amended petition. On May 24, 1993, the district court entered an order denying Sidebottom's petition. On June 8, 1993, pursuant to Fed.R.Civ.P. 59(e), Sidebottom filed a motion with the district court requesting that the court alter or amend its judgment or, in the alternative, to reconsider its order. On July 26, 1993, the district court issued an order denying Sidebottom's motion. Shortly thereafter, on August 10, 1993, the district court issued an order withdrawing its earlier order of July 26, 1993. The reason for this subsequent order was to allow Sidebottom's counsel to withdraw because she had been appointed as a state circuit judge and to allow replacement counsel to become familiar with the case. On October 15, 1993, the district court reissued its order of July 26, 1993, denying Sidebottom's Rule 59(e) motion. Sidebottom then filed a notice of appeal on November 12, 1993.

Meanwhile, sometime around June 13, 1993, Sidebottom filed a motion with the Missouri Supreme Court requesting that the court withdraw its mandate. 2 On July 23, 1993, Sidebottom filed a petition for a writ of habeas corpus with the Missouri Supreme Court under Mo.Sup.Ct.R. 91. On August 17, 1993, the Missouri Supreme Court summarily denied the habeas corpus petition and rejected the motion to recall the mandate.

On appeal to this court, Sidebottom argues that the district court erred in (1) denying his request for an evidentiary hearing; (2) rejecting his claims of ineffective assistance of post-conviction counsel; (3) rejecting his claims of ineffective assistance of trial counsel; (4) rejecting his claims of ineffective assistance of appellate counsel; (5) rejecting his claims of prosecutorial misconduct; (6) rejecting his claim of an incomplete and incompetent mental evaluation; and (7) denying various claims on procedural grounds.


Before addressing Sidebottom's claims, we must first consider the State's challenge to our jurisdiction over this appeal. The State contends that Sidebottom filed his notice of appeal outside the time limitation provided in Rule 4(a)(5) of the Federal Rules of Appellate Procedure.

Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that a notice of appeal must be filed in the district court "within thirty days after the date of entry of the judgment or order appealed from." Upon a showing of excusable neglect, the district court may extend the time for filing a notice of appeal upon a motion filed not later than thirty days after expiration of the thirty-day period prescribed under Rule 4(a)(1). Fed.R.App.P. 4(a)(5). The time limits set forth in Rule 4 are "mandatory and jurisdictional." Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978).

The State argues that Sidebottom's notice of appeal was due on August 25, 1993, thirty days after the district court's initial entry of its order on July 26, 1993, denying Sidebottom's Rule 59(e) motion. Thus, according to the State, Sidebottom's notice of appeal filed on November 12, 1993, is untimely because the district court had no...

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