Byrd v. Delo

• Decision Date: 26 March 1990
• Docket Number: No. 90-507C(1).,90-507C(1).
• Citation: 733 F. Supp. 1334
• Parties: Maurice Oscar BYRD, Petitioner, v. Paul DELO, etc, et al., Respondents.
• Court: U.S. District Court — Eastern District of Missouri

733 F. Supp. 1334

Maurice Oscar BYRD, Petitioner, v. Paul DELO, etc, et al., Respondents.

No. 90-507C(1).

United States District Court, E.D. Missouri, E.D.

March 26, 1990.

COPYRIGHT MATERIAL OMITTED

Burton Shostak, Deborah Kerns, Moline, Oettsen, Mauze, Leggat & Shostak, Clayton, Mo., for petitioner.

John Morris, Stephen Hawke, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM

NANGLE, Chief Judge.

Petitioner brings the instant habeas petition seeking a stay of execution and a hearing on the merits of his petition. Because, however, this is petitioner's second federal habeas petition¹, the Court must first determine whether petitioner is procedurally or equitably barred from pursuing the claims in this petition. See Mercer v. Armontrout, 864 F.2d 1429, 1433 (8th Cir. 1988).

Federal Habeas Corpus Rule 9(b) provides:

Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits, or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the United States Supreme Court distinguished successive petitions that rely on grounds previously heard ("repetitive claims") from second petitions containing new claims ("new claims"). Id. 373 U.S. at 15-19, 83 S.Ct. at 1077-79. Different principles govern the disposition of repetitive claims and new claims. Id. Petitioner's successive petition asserts eight separate alleged bases for relief (Grounds A-H).² Of these claims, three are conceded to be "repetitive" and the remaining five are allegedly "new". Because petitioner's successive petition contains both types of claims, the Court will address petitioner's repetitive claims and the standard for their disposition separately from petitioner's new claims.

I. Repetitive Claims

In Sanders v. United States the Supreme Court held that a court must give controlling weight to the denial of a prior application for federal habeas corpus if:

(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application;

(2) the prior determination was on the merits; and

(3) the ends of justice would not be served by reaching the merits of the subsequent application.

Id. at 15, 83 S.Ct. at 1077. It is petitioner's burden to show that, "although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground." Id. at 17, 83 S.Ct. at 1078. If a purely legal question is involved, an intervening change in the law may justify a new hearing. Id. A petitioner must, however, show something more than mere disagreement with the prior disposition. Walker v. Lockhart, 726 F.2d 1238, 1250 (8th Cir.1984) (en banc) (Arnold J., concurring). Finally, in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), a plurality of the Supreme Court held that "ends of justice" requires the petitioner ultimately to supplement his claim with "a colorable showing of factual innocence." Id. 477 U.S. at 454, 106 S.Ct. at 26. Because of the split among the justices deciding Kuhlman, courts have interpreted Kuhlman to mean, at the very least, that "a colorable showing of factual innocence" is a factor to be weighed in determining whether a petitioner has met his burden of proof. See Sulie v. Duckworth, 864 F.2d 1348, 1353 (7th Cir.1988), cert. denied, ___ U.S. ___, 110 S.Ct. 93, 107 L.Ed.2d 58 (1989); Williams v. Lockhart, 862 F.2d 155, 158 (8th Cir.1988). But see, McDonald v. Blackburn, 806 F.2d 613, 622 n. 9 (5th Cir.1986) (following plurality in Kuhlman), cert. denied, 481 U.S. 1070, 107 S.Ct. 2465, 95 L.Ed.2d 874 (1987); Branion v. Gramly, 855 F.2d 1256, 1260 (7th Cir.1988) (petitioner must make "colorable showing"), cert. denied, ___ U.S. ___, 109 S.Ct. 1645, 104 L.Ed.2d 160 (1989).

Petitioner concedes that Grounds E, F and H were raised in one form or another in his initial habeas petition and that the first two Sanders inquiries must be answered in the affirmative. Thus, this Court will limit its discussion of each of petitioner's repetitive claims to whether the "ends of justice" would be served by reaching the merits of these claims.

A. GROUND "E"

Ground E of petitioner's successive application alleges that petitioner's trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he called Oscar Ford to testify on behalf of petitioner at trial. An identical claim was raised in petitioner's original federal habeas corpus petition. Petitioner argues, however, that he does not merely disagree with the prior disposition of this Court and the Eighth Circuit regarding this issue. Rather, petitioner argues that this Court and every other court that has considered this instance of alleged ineffective assistance of counsel has focused on rationale for trial counsel's actions that was not offered by trial counsel himself, but, rather, proffered by the court as an explanation for trial counsel's action. Petitioner insists that this Court must look only to the reasons proffered by trial counsel in determining "reasonableness" under Strickland.

Despite petitioner's protestations, this Court cannot characterize petitioner's argument as anything other than a disagreement with this Court's prior disposition of petitioner's claim as well as the disposition of every court that has heard this claim. Furthermore, this Court is not satisfied that petitioner has supplemented this claim with "a colorable showing of factual innocence." Finally, this Court would note that in his first petition as well as the instant application, petitioner challenges decisions of trial counsel that were purely strategic in nature. An attorney who makes a decision in the heat of a trial in order to salvage a faltering criminal defense cannot be said to have performed "deficiently" solely on the basis of hindsight that the decision MAY have backfired; this Court has yet to see the perfectly tried case, be it civil or criminal. When trial counsel ultimately succeeds by a calculated trial tactic, his decision is heralded as a stroke of genius. His innovation is laudable. When, however, his last ditch attempts fail, his actions are viewed as "improvident" and he becomes a scapegoat. Under either scenario, hindsight is twenty-twenty. Hindsight, however, can play no role in determining the reasonableness of an attorney's actions for our purposes.³See Strickland v. Washington, 466 U.S. at 687-691, 104 S.Ct. at 2064-67. Ground E will be dismissed.

B. GROUND "F"

In Ground F petitioner seeks again to raise a challenge to the jury on the basis that he is a black man and that he was tried by an all white jury. In his first application, petitioner raised a claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and sought discovery of statistical evidence to establish a claim under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). This Court held that Batson could not be applied retroactively to petitioner and that petitioner did not adequately allege a Swain violation. Byrd v. Armontrout, 686 F.Supp. 743, 776-777 (E.D.Mo.1988). This Court further held that, in any event, petitioner was procedurally barred from pursuing a Swain claim. Id. Nonetheless, petitioner now asserts that the Missouri Court of Appeals did rule on the merits of a Swain challenge, see Byrd v. State, 723 S.W.2d 37, 42 (Mo.App.1986), and that this Court, therefore, should not have resolved this point against petitioner on the basis of procedural default.

Again, this Court can only characterize petitioner's argument as a disagreement with this Court's prior disposition of petitioner's claim. Petitioner alleges no new factual evidence. He does not allude to some intervening change in the law. He simply disagrees with this Court's determination that a Swain claim was procedurally barred. Furthermore, this Court disposed of petitioner's claim on the basis of procedural default, as well as on the basis that petitioner failed to state a claim under Swain. Finally, the Court again notes that petitioner has failed to supplement his claim with "a colorable showing of factual innocence." Accordingly, Ground F will be dismissed.

C. GROUND H

In Ground H petitioner claims that he was constructively denied the right to offer mitigating evidence of good character, which the jury could have considered during the sentencing phase of petitioner's trial. Although it is not clear from petitioner's brief, petitioner indicated during oral argument that at trial, he wished to offer evidence that one month before the crime in question he had aided police in solving a burglary. Petitioner objects to the trial court's ruling that if petitioner attempted to introduce such evidence of good character, the state would be entitled to offer evidence of bad character. Petitioner argues that this ruling left him with a "Hobson's choice", and constructively denied him the opportunity to present all mitigating evidence in violation of Penry v. Lynaugh, ___ U.S. ___, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

As a threshold matter, this Court must note that acceptance of petitioner's argument would mark such a departure from existing law that it would certainly create a "new rule" within the meaning of Teague v. Lane, ___ U.S. ___, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).⁴ New rules cannot be announced or applied on collateral review except under certain exceptional circumstances, which do not appear in the instant case. Id. See also Butler v. McKellar, ___ U.S. ___, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Penry v. Lynaugh, ___ U.S. ___, 109...