Oxford v. Delo, 94-1879

• Citation: 59 F.3d 741
• Decision Date: 08 September 1995
• Docket Number: No. 94-1879,94-1879
• Parties: Richard Dennis OXFORD, Appellant, v. Paul DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 741

59 F.3d 741

Richard Dennis OXFORD, Appellant, v. Paul DELO, Appellee.

No. 94-1879.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1994.

Decided July 6, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

8, 1995. ^*

Philip J. Adams, Leawood, KS, argued (Daniel L. Fowler, Overland Park, KS, on the brief), for appellant.

Frank A. Jung, Asst. Atty. Gen., argued for appellee.

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

BOWMAN, Circuit Judge.

Richard Dennis Oxford appeals a final judgment entered in the District Court ¹ denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1988). We affirm.

I.

On the evening of November 14, 1986, Melba Wampler and her husband Harold disappeared after leaving a bar in Joplin, Missouri, in the company of Oxford and his companion Richard Brown. At the time, Oxford and Brown were fugitives from the Conner Correctional Center in Hominy, Oklahoma. The partially decomposed bodies of the Wamplers were discovered in the trunk of a car at a Kansas City motel on January 2, 1987. Following a jury trial in September 1988, Oxford was convicted of the murder of Melba Wampler and sentenced to death. ²

Pursuant to Missouri Supreme Court Rule 29.15, Oxford filed a pro se motion to vacate the conviction. As required by Rule 29.15, the pro se motion was verified. Subsequently, counsel appointed to represent Oxford prepared an amended Rule 29.15 motion asserting various claims not asserted by Oxford in his pro se motion, including ineffective assistance of trial counsel. Oxford refused to communicate with his counsel and as a result the amended petition was filed without verification. After an evidentiary hearing, the trial court denied both Rule 29.15 motions. Oxford then took a direct appeal of his conviction and sentence and an appeal of the denial of his Rule 29.15 motions to the Missouri Supreme Court. After consolidating the appeals, that court affirmed the trial court in all respects, holding, inter alia, that the claims raised in Oxford's amended Rule 29.15 motion were procedurally barred because Oxford had failed to verify the amended motion in accordance with Rule 29.15. State v. Oxford, 791 S.W.2d 396, 401 (Mo.1990) (en banc), cert. denied, 498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789 (1991).

Following the Missouri Supreme Court's denial of motions for rehearing and to recall the mandate, Oxford filed his Sec. 2254 petition in the District Court. As amended, the petition contained thirty claims of constitutional error. The District Court subsequently stayed further proceedings, giving Oxford an opportunity to file with the Missouri Supreme Court a second motion to recall the mandate and thereby to exhaust several previously unexhausted claims. The Missouri Supreme Court summarily denied Oxford's motion, and the District Court lifted its stay. After thoroughly addressing the procedural history of each of Oxford's habeas claims, the District Court dismissed all but one of them on the ground that they were procedurally barred. ³ See Oxford v. Delo, No. 91-0080-CV-W-8 (W.D.Mo. Aug. 10, 1993) (order dismissing counts 1-3, 5, 7, 8, 17, 19, 27-29); Oxford v. Delo, No. 91-0080-CV-W-8 (W.D.Mo. Sept. 29, 1993) (order dismissing counts 4, 6, 9-16, 18, 20-26, and 30).

In its two orders, the District Court found that the Missouri Supreme Court had made the following determinations with respect to Oxford's claims: (1) Oxford's claims 2, 3, 5, 8, 17, 19, 20, 27, 28, and 29 were procedurally defaulted because they were raised in the amended Rule 29.15 motion that Oxford had failed to verify; (2) Oxford's claims 1, 4, 6, 7, 9, 10, 11, 12, 13, 14, 15, 18, and 20 were procedurally defaulted because they were raised only in Oxford's motions to the court to recall its mandate; (3) Oxford's claim 26, although properly raised in his pro se Rule 29.15 motion, was not raised in his appeal from the denial of that motion and thus also was procedurally defaulted. The District Court then examined each of the Missouri Supreme Court's determinations of procedural default and concluded that they rested on independent state law grounds adequate to bar federal habeas review.

The District Court also determined that Oxford's claims 21, 22, 23, 24, 25, 26, and 30 never had been presented to the Missouri Supreme Court in any form, and that the claims would be procedurally barred in the Missouri courts if Oxford were now to present the claims in an attempt to exhaust his state remedies. Accordingly, the District Court determined that all of these claims had been procedurally defaulted under state law.

With respect to all of the claims found to have been procedurally defaulted, the District Court, based on the state court record and the parties' briefs and oral arguments, ruled that Oxford had not established cause and prejudice to excuse his procedural default. ⁴ All of the procedurally defaulted claims therefore were dismissed by the District Court as procedurally barred.

The only claim found not procedurally barred was Oxford's claim number 16, which alleges that Missouri's death penalty is unconstitutional both facially and as applied. The District Court rejected this claim on the merits and Oxford does not now challenge that decision. Oxford does challenge the District Court's dismissal of his other claims as procedurally barred.

II.

We first address Oxford's argument that failure to verify an amended Rule 29.15 motion does not constitute an independent or adequate state ground sufficient to bar federal review of the claims raised therein. It is well established that federal courts are barred from reviewing claims decided on independent and adequate state law grounds. Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935). In Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977), the Supreme Court extended this principle to federal review of habeas claims brought by petitioners who are in state custody. See also Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991). Moreover, the Supreme Court has held that a procedural default under state law may constitute independent and adequate state law grounds precluding federal review. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989) ("Under Sykes ... an adequate and independent finding of procedural default [as a matter of state law] will bar federal habeas review of the federal claim....").

Missouri Supreme Court Rule 29.15 provides that a person convicted of a felony may seek relief from the conviction by filing with the trial court a motion to vacate. A Rule 29.15 movant "shall verify the motion, declaring that he has listed all grounds for relief known to him and acknowledging his understanding that he waives any ground for relief known to him that is not listed in the motion." Mo.R.Crim.P. 29.15(d). In addition, Rule 29.15 requires that "[a]ny amended motion shall be verified by movant." Mo.R.Crim.P. 29.15(f). Because Rule 29.15 is the exclusive procedure for post-conviction relief in Missouri, claims not properly asserted under the rule are procedurally defaulted. See State v. Dixon, 854 S.W.2d 521, 524 (Mo.Ct.App.1993); State v. Robinson, 832 S.W.2d 941, 945 (Mo.Ct.App.1992). It was Oxford's failure to verify his amended motion in accordance with subsection (f) that led to the procedural default of claims 2, 3, 5, 6, 8, 10, 19, and 20.

A claim that is procedurally defaulted under state law, however, is barred from federal review only if the state procedural rule is both (1) firmly established and (2) regularly followed. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991); Grubbs v. Delo, 948 F.2d 1459, 1462-63 (8th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 109, 121 L.Ed.2d 67 (1992). Federal review is not barred where a state procedural rule is inconsistently enforced or the state court undertakes a novel application of the rule. See Grubbs, 948 F.2d at 1462-63. Thus, whether Oxford's claims are barred turns on whether Missouri Supreme Court Rule 29.15 is firmly established and regularly followed. Oxford contends that it is not.

Although Rule 29.15 did not have a lengthy history of litigation at the time Oxford filed his unverified amended motion, that fact is of little avail to him. The verification requirement of Rule 29.15 is plainly stated in the rule and had been in effect for more than a year when Oxford filed his amended motion. Indeed, Oxford evidently was aware of the verification requirement prior to filing his amended motion because his original pro se motion was properly verified. Accordingly, we conclude that the verification requirement of Rule 29.15 was firmly established.

As to the "regularly followed" component of our inquiry, we disagree with Oxford's assertion that the verification requirement of Rule 29.15 has been "in a constant state of flux" since he filed his motion. Appellant's Brief, p. 46. We find that the Missouri courts have consistently enforced the verification requirements of Rule 29.15. See, e.g., State v. Evans, 802 S.W.2d 507, 515 (Mo.1991) (en banc) (declaring unverified post-conviction motion a nullity); Dixon, 854 S.W.2d at 524 (holding that post-conviction motions were procedurally deficient due to lack of verification); Robinson, 832 S.W.2d at 945 (holding that claims were not preserved for appellate review where post-conviction motion was not properly verified); State v. Boyd, 816 S.W.2d 19, 20 (Mo.Ct.App.1991) (to same effect); State v. Norris, 813 S.W.2d 379, 382 (Mo.Ct.App.1991) (to same effect); State v. Leisure, 810 S.W.2d 560, 576 (Mo.Ct.App.1991) (to same effect); State v. Norfolk, 807 S.W.2d 105, 108 (Mo.Ct.App.1990) (appellate court may not review claims raised in unverified amended motion); McDaniels v. State, 806 S.W.2d 450,...