62 F.3d 1024 (8th Cir. 1995), 93-2735, Nave v. Delo

Docket Nº:93-2735, 93-2898 and 93-3073.
Citation:62 F.3d 1024
Party Name:Emmett C. NAVE, Petitioner-Appellee, v. Paul K. DELO, Respondent-Appellant. Emmett C. NAVE, Petitioner-Appellee, v. Paul K. DELO, Respondent-Appellant. Emmett C. NAVE, Petitioner-Appellant, v. Paul K. DELO, Respondent-Appellee.
Case Date:August 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1024

62 F.3d 1024 (8th Cir. 1995)

Emmett C. NAVE, Petitioner-Appellee,

v.

Paul K. DELO, Respondent-Appellant.

Emmett C. NAVE, Petitioner-Appellee,

v.

Paul K. DELO, Respondent-Appellant.

Emmett C. NAVE, Petitioner-Appellant,

v.

Paul K. DELO, Respondent-Appellee.

Nos. 93-2735, 93-2898 and 93-3073.

United States Court of Appeals, Eighth Circuit

August 7, 1995

Submitted March 14, 1994.

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Millie E. Aulbur, Jefferson City, MO, argued, for appellant.

Allen Harris, St. Louis, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

On February 21, 1995, the United States Supreme Court vacated our previous decision in this case (reported at 22 F.3d 802) and remanded for reconsideration in light of

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Schlup v. Delo, --- U.S. ----, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). On reconsideration, we again reverse.

In our previous decision, we reversed the district court's decision granting Nave's petition for a writ of habeas corpus based on ineffectiveness of trial counsel and affirmed its decision denying Nave's request for relief based on additional alleged trial errors. Although the Supreme Court's order vacated our prior opinion as it related to all of these issues, it remanded for reconsideration in light of Schlup v. Delo. Therefore, we revisit only Part II(A)(1)(b). With regard to the other issues, our decisions are the same as they were earlier. Specifically, we hold that Nave has failed to meet the actual innocence standard outlined in Schlup v. Delo and only restate our prior holdings under the other sections.

I. BACKGROUND

Rather than reformulate the facts of this case, we set forth below the background substantially as it was explicated in our prior opinion. We summarize the facts outlined in the Missouri Supreme Court's opinion affirming Nave's conviction on direct appeal. State v. Nave, 694 S.W.2d 729, 731-33 (Mo.1985) (en banc), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 901 (1986).

In June of 1984, Nave was convicted of one count of capital murder, one count of first degree robbery, three counts of sodomy and four counts of kidnapping. The convictions stemmed from a crime spree that took place on November 19, 1983, while he was on parole from two life sentences for armed robbery and forcible rape. Nave had been experiencing difficulties with his parole officer because of his failure to stop consuming alcoholic beverages and attend Alcoholics Anonymous meetings, both of which were conditions of his parole. Additionally, Nave was upset about the instructions he received from the drug abuse counselor at a nearby hospital. Nave was also having problems getting along with Geneva Roling, a neighbor who was either the owner or manager of the apartment house in which Nave and his wife lived.

On the night of November 18, Nave told his wife that Roling and the drug abuse counselor were trying to control his life and expressed a fear that his parole would be revoked. He also indicated that he was going to "hurt" some people, including Roling.

The next morning, Nave picked up his .22 caliber semiautomatic rifle and ordered his wife to drive him to the hospital so he could get some drugs. Before leaving, Nave told his wife that he had to talk to Roling. While his wife went to the car, Nave knocked on Roling's door. From the parking lot, Nave's wife heard a number of shots, followed by Roling's screams. Roling's body was later discovered by her son; she had been shot ten times, with the fatal bullet having been fired into her skull at point-blank range. Ballistics tests would later prove that the bullets came from Nave's rifle.

Nave and his wife drove to the hospital; upon arriving, Nave went to the emergency room and demanded some painkilling drugs. His requests were denied, at which time he returned to the car and told his wife the drug counselor had prevented him from obtaining drugs. Armed with his rifle, Nave returned to the hospital and searched for his drug counselor. Nave found her talking to a nurse. He pointed the gun at the women and demanded a shot of Demerol. He told them that he had already killed two people 1 and had nothing left to lose. After receiving an injection, he ordered the women to place the contents of the narcotics cabinet in a bag 2 and accompany him to the car. As the trio left the hospital, they encountered two more female hospital employees. Nave threatened to kill them if they did not also accompany him to his car. Faced with this threat, they also accompanied Nave.

Nave ordered the women into his car; after questioning the hostages, Nave directed his wife to drive to one of the hostage's homes. 3 During the trip, Nave repeated his

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earlier statement that he had already killed two people and had nothing to lose by killing more people. Once Nave, his wife, and his hostages got into the house, Nave ordered the hostages to remove their clothes and perform various sex acts with him, his wife, and each other. Nave was eventually captured after the drug counselor injected him with a sufficiently large dose of Demerol to cause him to pass out.

Nave was represented at trial by a member of the Cole County Public Defender's Office. Nave's defense was diminished capacity due to drug and alcohol use, which was supported by testimony from his wife and a psychiatrist. The state presented evidence that tended to prove that, at the time of the crimes, "Nave was not intoxicated, was alert, and spoke clearly." Nave, 694 S.W.2d at 733. In addition to the hostages' testimony, the state also demonstrated that Nave's rifle was the weapon used to kill Roling. The jury convicted Nave on all counts. After the penalty phase of the trial, the jury recommended that Nave be sentenced to death for murdering Geneva Roling. The trial court sentenced him to death for the capital murder, to life imprisonment for the robbery, to life imprisonment without the possibility of parole for thirty years on each sodomy charge and to thirty years' imprisonment on each kidnapping charge.

As indicated above, Nave's convictions and sentences were affirmed on direct appeal. During the direct appeal, Nave was represented by the Boone County Public Defender's Office.

In May 1986, Nave filed a pro se motion for relief under Missouri Supreme Court Rule 27.26, seeking to set aside his conviction for capital murder and the sentence of death. The St. Charles County Public Defender's Office was appointed to represent Nave. After an evidentiary hearing was held, relief in these collateral proceedings was denied, and the denial of relief was affirmed. Nave v. State, 757 S.W.2d 249 (Mo.Ct.App.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1330, 103 L.Ed.2d 598 (1989).

In March of 1989, Nave commenced this habeas proceeding in federal district court. At some time between the filing of the second amended petition and the district court's ruling on that petition, 4 Nave filed Motions to Recall the Mandate in both the Missouri Supreme Court and the Missouri Court of Appeals. Both motions were summarily denied.

The district court granted habeas relief for the following ten alleged instances of ineffective assistance of counsel:

1) Failure to request a severance of the counts;

2) Failure to secure or present evidence of Nave's long history of substance and alcohol abuse and his lack of intent to commit the crimes with which he was charged;

3) Failure to perform an adequate voir dire;

4) Failure to advise Nave that, under the then-existing Missouri marital privilege, he could bar his wife from testifying against him;

5) Failure to present evidence of Nave's prior substance and alcohol abuse at the penalty phase of the trial;

6) Failure to object to evidence about the impact of Nave's crimes on the victims;

7) Failure to object to the prosecutor's comments regarding the possibility of parole;

8) Failure to interview or prepare one of the defense witnesses before calling him to the stand to testify;

9) Failure to present an adequate closing argument at the end of the penalty phase; and

10) The cumulative effect of all the above-mentioned errors.

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In granting the writ, the court noted the state's argument that it was procedurally barred from reviewing many of these claims because they had not been presented to the state courts, but concluded the procedural bar could be lifted because Nave's claims were contained in his motions to recall the mandate and because Nave was actually innocent of the death penalty. The court also found, despite the lack of evidence in the record, that the Missouri Public Defender System is understaffed and undertrained. The court's order concluded by requiring the state "to discharge the defendant on the capital murder charge, or alternatively, to amend his sentence in such a manner as to eliminate the death penalty, or to grant him a new trial on the capital murder charge only." Nave v. Delo, No. 89-0447-C(4), slip op. at 14 (E.D.Mo. June 17, 1993).

Nave then requested that the district court alter or amend its judgment so as to address his remaining grounds for relief and to clarify the ambiguous remedy prescribed in the court's earlier order. As to the former, the court rejected the remaining claims of error. As to the latter, the court concluded that "[t]he state of Missouri may impose a sentence of 50 years or more or, in the alternative, grant the petitioner a new trial of the punishment phase of the murder case." Nave v. Delo, No. 89-447-C(4)...

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