54 F.3d 1357 (8th Cir. 1995), 94-1890, Antwine v. Delo

Docket Nº:94-1890WM.
Citation:54 F.3d 1357
Party Name:Calvert L. ANTWINE, Appellant, v. Paul DELO; Missouri Attorney General, Appellees.
Case Date:May 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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54 F.3d 1357 (8th Cir. 1995)

Calvert L. ANTWINE, Appellant,


Paul DELO; Missouri Attorney General, Appellees.

No. 94-1890WM.

United States Court of Appeals, Eighth Circuit

May 12, 1995

Submitted Nov. 14, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied July 25, 1995.

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Jay D. DeHardt, Kansas City, MO, argued, for appellant.

Stacy L. Anderson, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, and REAVLEY, [*] Senior Circuit Judge.


Calvert Leon Antwine appeals the District Court's denial of his petition for a writ of habeas corpus. We affirm in most respects, but we conclude that Antwine was denied the effective assistance of counsel during the penalty phase of his trial and that the prosecutor's penalty-phase closing argument violated Antwine's Eighth and Fourteenth Amendment rights. We therefore vacate his death sentence and remand to the District Court with directions to issue a writ of habeas corpus releasing Antwine from the sentence of death, unless the State of Missouri commences proceedings to re-sentence him within a reasonable time. The capital-murder conviction itself is upheld in all respects.


On November 11, 1983, Calvert Antwine was trying to find Eric "George" Jones, one of his employers in a drug-dealing business. In the course of his search, Antwine robbed several workers who were refurbishing one of George's buildings and shot and killed Winston Jones, George's brother and business partner. When he finally encountered George, their struggle over a gun attracted police attention. The police arrested both men, handcuffed them, and placed them in a holding cell. Five or ten minutes later, an officer heard some yelling and looked into the holding cell to find George lying face down on the floor, bleeding from the nose and mouth, and Antwine sitting on a bench a few feet away. The officer checked on George, then stepped away to call for help; when he turned back, he saw Antwine in midair, coming down with both feet on George's head. George died from head injuries a few days later.

A jury convicted Antwine of capital murder, second-degree murder, and first-degree robbery. He was sentenced to death for the murder of Eric "George" Jones, to life imprisonment for the murder of Winston Jones, and to 30 years for the robbery.

Antwine appealed his convictions. While the case was pending, the Supreme Court of the United States decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Missouri Supreme Court remanded Antwine's case to the trial judge for a Batson hearing to determine if Antwine had established racial discrimination in the State's use of peremptory challenges during jury selection.

The trial judge determined that Antwine had not made a prima facie Batson case, and the Missouri Supreme Court affirmed Antwine's convictions and death sentence. State v. Antwine, 743 S.W.2d 51 (Mo.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). Antwine then filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15. His appointed post-conviction counsel filed one timely and five untimely amended motions. After an evidentiary hearing on the claims raised in all the motions, the motion court denied relief. On appeal, the Missouri Supreme Court, deeming the grounds raised in the five untimely motions procedurally waived, affirmed the motion court's judgment.

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Antwine v. State, 791 S.W.2d 403 (Mo.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789 (1991).

The Missouri Supreme Court subsequently summarily dismissed the habeas petition that Antwine filed pursuant to Missouri Supreme Court Rule 91. Antwine then petitioned in federal court for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The District Court denied the writ, and Antwine appeals to this Court.

The petition raises a number of constitutional claims, most of which are either procedurally barred or without merit. But the petition does include two successful arguments: Antwine's counsel gave him ineffective assistance during the penalty phase of his trial in violation of the Sixth and Fourteenth Amendments, and the prosecutor's penalty-phase closing argument violated the Eighth and Fourteenth Amendments. We turn to these claims first.


Antwine argues that the prosecutor's penalty-phase closing argument violated his Eighth and Fourteenth Amendment rights. The District Court did not address this issue since it found that Antwine had procedurally defaulted all of his claims except for specific claims of ineffective assistance of counsel.

The District Court based its finding of procedural default on its conclusion that the Missouri Supreme Court had found "that the only claims not procedurally barred [were] those involving specific allegations of ineffective trial counsel." Antwine v. Delo, No. 91-0079-CV-W-1, slip op. at 4 (W.D.Mo. March 4, 1993). But as we read its opinion, the Missouri Supreme Court actually found that the only claims not barred were those raised in the defendant's timely motion for post-conviction relief. Antwine, 791 S.W.2d at 406. While that motion alleged several claims of ineffective assistance of counsel, it also included an allegation that the prosecutor's closing argument violated Antwine's Eighth and Fourteenth Amendment rights.

Even though Antwine raised this allegation in his timely post-conviction motion, it was still subject to a state procedural bar because he had not raised it in his direct appeal. The post-conviction motion court recognized this default and held that Antwine's failure to raise the issue on direct appeal barred any post-conviction relief. But the Missouri Supreme Court ignored the bar and addressed this federal claim on the merits. Antwine, 791 S.W.2d at 411. "State procedural bars are not immortal ...; they may expire because of later actions by state courts. If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal court review that might otherwise have been available." Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991). We are therefore free to consider the merits of Antwine's claim.

Antwine's claim involves two parts. First, he argues that the prosecutor's closing argument diminished the jury's sense of responsibility for imposing the death sentence, in violation of the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Second, he alleges that the prosecutor's argument was so inflammatory that it rendered the entire sentencing proceeding fundamentally unfair and denied him due process. We agree with both contentions.


During his closing argument in the penalty phase of Antwine's trial, the prosecuting attorney stated:

Let there be no question, we are asking you to put this defendant to death.... [H]e will be taken into a room. There will be witnesses that will come down. There will be a priest present. He will be asked if he has any last request.... He will be put in a chair. A pellet will be dropped into acid, and when he inhales that, he would be put to death instantaneously.

(Trial Tr. at 928-29.) The prosecutor's argument suggests that a condemned prisoner's death will be quick, painless, and humane: one quick breath, and the defendant will die at once. The reality, as we understand it, is or at least may be quite different. Eyewitness accounts of gas-chamber executions describe

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death throes lasting ten minutes or more; the inmate even remains conscious for the first few minutes after breathing the gas. Kevin Fagan, "Mason Dies as He Said He Would," San Francisco Chronicle, Aug. 25, 1993, at A1 (comparing the 14 minutes it took for David Mason to die to the 10 minutes it took for Robert Alton Harris, and noting that Mason was unconscious after the first three minutes); Kevin Leary, "Eyewitness to Execution," Ottawa Citizen, April 22, 1992, at A2 (noting that Harris appeared to lose consciousness one-and-one-half minutes after breathing the gas); John Hiscock, "Killer Dies After Night of Reprieves," The Daily Telegraph, April 22, 1992, at 1 (reporting that witnesses gave varying estimates of two to seven minutes for the time it took Robert Alton Harris to lose consciousness). Such a death is hardly "instantaneous."

Antwine's trial counsel did try to address the prosecutor's unfounded description by painting his own picture of the process, but he failed to challenge or even question the prosecutor's claim that Antwine would die as soon as he breathed the gas. He focused instead on the futile resistance leading up to the fatal breath:

It's not going to be a simple procedure where he'll breathe and it's over with. It won't be that quick.

He may try to hold his breath. No matter how hard he'll try to do that, it just won't work. He'll have to breathe. His body will have to try to get some oxygen, and then ... the gas will go into his lungs. As the oxygen moves into his bloodstream, then he'll die.

(Trial Tr. at 939-40.) Indeed, the defense counsel's description actually supports the prosecutor's suggestion that the prisoner will instantly die when he breathes the gas.

So where is the harm in this vision of a quick and easy death? The danger is that the jurors, faced with a very difficult and uncomfortable choice, will minimize the burden of sentencing someone to...

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