Barnett v. Roper

• Decision Date: 05 September 2008
• Docket Number: No. 07-1234.,07-1234.
• Citation: 541 F.3d 804
• Parties: David BARNETT, Appellant, v. Don ROPER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

541 F.3d 804

David BARNETT, Appellant, v. Don ROPER, Appellee.

No. 07-1234.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2008.

Filed: September 5, 2008.

Elizabeth Unger Carlyle, argued, Columbus, MS (Richard H. Sindel, Clayton, MO, on the brief), for appellant.

Stephen D. Hawke, AAG, argued, Jefferson, MO, for appellee.

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

WOLLMAN, Circuit Judge.

David Barnett was convicted by a jury of, among other things, two counts of first degree murder, and sentenced to death. The facts surrounding the killings are set forth fully in the decision of the Missouri Supreme Court affirming Barnett's conviction on direct appeal and will not be recounted here. See State v. Barnett, 980 S.W.2d 297 (Mo.1998) (en banc). Following that decision, Barnett was denied post-conviction relief. Barnett v. State, 103 S.W.3d 765 (Mo.2003) (en banc). The district court¹ denied Barnett's request for a writ of habeas corpus. Barnett has appealed, alleging that the post-conviction court should have granted him an evidentiary hearing on his ineffective assistance of trial counsel claim, that the prosecutor used her peremptory strikes to discriminate against women, and that the prosecutor violated Barnett's due process right by stating a personal opinion about the appropriateness of the death penalty. We affirm.

We review a district court's conclusions of law de novo and its findings of fact for clear error. Malcom v. Houston, 518 F.3d 624, 626 (8th Cir.2008).

I. Timely Filing of the Habeas Petition

As a preliminary matter, we address the state's argument, raised for the first time on appeal, that the district court's judgment should be affirmed because Barnett's petition for a writ of habeas corpus was not timely filed as required by 28 U.S.C. § 2244(d). Barnett concedes that his application was filed twenty-five days late, but argues that the state has waived this defense.²

The Federal Rules of Civil Procedure govern habeas proceedings unless superseded by the rules governing section 2254 or 2255 cases. Fed.R.Civ.P. Rule 81(a)(4). The Rules provide that limitations defenses are forfeited unless pleaded in an answer or an amendment to the answer. Day v. McDonough, 547 U.S. 198, 207-08, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (citing Rules 8(c), 12(b), and 15(a)). The Supreme Court has carved out an exception in habeas cases that allows a district court to consider sua sponte the timeliness of a state prisoner's petition. Day, 547 U.S. at 209, 126 S.Ct. 1675. Even if this exception extends to allowing district courts to consider a party's belated motion alleging untimeliness, we decline to extend it to the appellate level, in part because the Supreme Court has also held that only an objection to subject matter jurisdiction may be raised post-trial; objections to untimeliness can no longer be raised after the case has been decided. Kontrick v. Ryan, 540 U.S. 443, 459-60, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004).

Because it raised no limitations-period objections to Barnett's motion for an extension of time to file his habeas petition, nor did it raise the issue in any responsive pleading or at any other time before the district court, the state has forfeited the objection and may not raise it for the first time on appeal.

II. Procedural Default

Barnett's motion for post-conviction relief under Missouri Supreme Court Rule 29.15 alleged, among other things, ineffective assistance of trial counsel. Barnett v. State, 103 S.W.3d at 768. Barnett argued, in part, that his trial counsel was ineffective for failing to investigate and present the details of his childhood circumstances and for failing to call a mental health expert that would have been more persuasive than those who were actually called. In support of his assertions, Barnett proposed to call several hundred witnesses, which were listed with the witness's full name (when known) and address (when known), but not the substance of that witness's testimony. The text preceding the list was purportedly an amalgamation of what the roughly 450 witnesses would testify to. The Missouri post-conviction court denied Barnett's motion without an evidentiary hearing because the pleading failed to comply with the procedural requirements of Rule 29.15. Id. at 769-70. The Missouri Supreme Court upheld that court's decision. Id.

Federal courts will not review a state court decision that rests on "independent and adequate state procedural grounds." Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This rule applies to bar federal habeas claims that a state has declined to consider because of the prisoner's failure to satisfy a state procedural requirement. Id. A state procedural rule will not bar enforcement of a federal right, however, unless the rule furthers a legitimate state interest. James v. Kentucky, 466 U.S. 341, 348-49, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984); Henry v. Mississippi, 379 U.S. 443, 447-49, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Likewise, a state procedural rule will not bar enforcement of a federal right if, although independent and adequate, the rule is applied in an "exorbitant" manner. Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). The adequacy of a state's procedural rule "`is itself a federal question.'" Id. at 375, 122 S.Ct. 877 (quoting Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)).

A.

A state procedural rule is adequate only if it is a "firmly established and regularly followed state practice." James v. Kentucky, 466 U.S. 341, 348-49, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). Barnett argues that the rule announced in Morrow v. State, 21 S.W.3d 819 (Mo.2000) (en banc), which was decided after Barnett filed his petition, was not firmly established by prior Missouri case law, nor was it a regularly followed state practice.

In general, to obtain an evidentiary hearing on a Rule 29.15 motion, "the movant must allege facts [not conclusions], not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that the movant was thereby prejudiced." State v. Jones, 979 S.W.2d 171, 180 (Mo. 1998) (en banc); see White v. State, 939 S.W.2d 887 (Mo.1997) (en banc); State v. Williams, 945 S.W.2d 575, 582 (Mo.Ct.App. 1997), abrogated on other grounds by Deck v. State, 68 S.W.3d 418, 427 (Mo.2002) (en banc); State v. Simmons, 875 S.W.2d 919, 923 (Mo.Ct.App.1994); State v. Pendas, 855 S.W.2d 512 (Mo.Ct.App.1993); State v. Dudley, 819 S.W.2d 51, 56 (Mo.Ct.App. 1991); State v. Jennings, 815 S.W.2d 434 (Mo.Ct.App.1991); State v. Fitzgerald, 781 S.W.2d 174, 188 (Mo.Ct.App.1989).

When the claim of ineffective assistance relates to counsel's failure to investigate or call witnesses, Rule 29.15 does not require an evidentiary hearing if the movant does not "identify who the witnesses were, what their testimony would have been, whether or not counsel was informed of their existence, and whether or not they were available to testify." Dudley, 819 S.W.2d at 56; see Williams, 945 S.W.2d at 582; Simmons, 875 S.W.2d at 923; Pendas, 855 S.W.2d at 516; Childress-Bey v. State, 779 S.W.2d 697, 699 (Mo.Ct.App.1989). See also Jennings, 815 S.W.2d at 448-49 (requiring that the motion "state the facts to which the unproduced witness would have testified" before an evidentiary hearing is granted); Barton v. State, 802 S.W.2d 561, 562 (Mo.Ct.App. 1991) (same); Fitzgerald, 781 S.W.2d at 188 (movant must allege the facts to which the witness would testify and must make the witness known to counsel); Johnson v. State, 776 S.W.2d 456, 458 (Mo.Ct.App. 1989) (movant must allege the facts to which the witness would testify). The Missouri Supreme Court upheld the post-conviction court's decision because the pleading "did not connect a specific portion of the narrative to a particular witness, did not allege that counsel was informed of their existence, and did not state that any of the witnesses were available to testify." Barnett, 103 S.W.3d at 770. Although this phrasing of the rule is not a verbatim repetition from earlier cases, it accurately sets forth the essential elements of the rule, which we conclude was firmly established at the time Barnett filed his Rule 29.15 motion.

These pleading requirements have been regularly applied in Missouri courts. Barnett points to several Missouri cases that he believes show that the standard has not been applied consistently and that his pleadings were sufficient. In two of those cases, the appellate court remanded for an evidentiary hearing in light of a motion that alleged the name, the testimony, and the willingness to testify of a witness whom counsel should have called. See State v. Sublett, 887 S.W.2d 618, 621-22 (Mo.Ct.App.1994); Jones v. State, 760 S.W.2d 176, 177 (Mo.Ct.App.1988). Another case was remanded for an evidentiary hearing on a motion that met the pleading requirements but in which the post-conviction court inadvertently overlooked the valid claim set forth midway in an invalid claim. Griffin v. State, 937 S.W.2d 400, 400-01 (Mo.Ct.App.1997). In two of the cited cases, the state agreed with the movant that the matters should be remanded for an evidentiary hearing. See Teaster v. State, 986 S.W.2d 175, 175-76 (Mo.Ct.App. 1999); Webster v. State, 837 S.W.2d 585, 587-88 (Mo.Ct.App.1992) (pleading requirements satisfied, and the circuit court fundamentally misunderstood movant's theory of the case and consequently the importance of the witness that his attorney should have called). One court remanded for an evidentiary hearing despite its finding that the pleadings were factually insufficient, with the decision to do so being based on the extenuating circumstances that the movant's guilty plea was equivocal and the allegation that the movant would not have pleaded guilty but for his counsel's ineffective...