Bannister v. Delo, 94-1141-CV-W-9.
| Citation | 904 F. Supp. 998 |
| Decision Date | 15 September 1995 |
| Docket Number | No. 94-1141-CV-W-9.,94-1141-CV-W-9. |
| Parties | Alan J. BANNISTER, Petitioner, v. Paul DELO, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Bruce E. Baty, Morrison & Hecker, Christopher D. Schneider, Morrison & Hecker, Kansas City, MO, for Alan Jeffrey Bannister.
ORDER GRANTING PETITIONER'S MOTION FOR RECONSIDERATION; DENYING PETITIONER'S MOTION FOR EVIDENTIARY HEARING; REAFFIRMING THE DECEMBER 5, 1994, ORDER DENYING EMERGENCY MOTION FOR STAY OF EXECUTION AND DENYING PETITIONER'S THIRD PETITION FOR WRIT OF HABEAS CORPUS
In 1983 Alan J. Bannister was convicted of capital murder and sentenced to death in the Circuit Court of McDonald County, Missouri. The Missouri Supreme Court affirmed Bannister's conviction and sentence. State v. Bannister, 680 S.W.2d 141 (Mo.1984). Bannister filed a motion under Missouri Supreme Court Rule 27.26 seeking post-conviction relief which was denied by the sentencing court on December 17, 1985. Bannister's appeal from the denial of his Rule 27.26 motion was unsuccessful. Bannister v. State, 726 S.W.2d 821 (Mo.App.1987).
On July 16, 1987, Bannister filed in this court a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On July 29, 1987, Bruce Baty was appointed to represent Bannister.
On August 23, 1991, I denied Bannister's Petition for Writ of Habeas Corpus. Bannister v. Armontrout, 807 F.Supp. 516 (W.D.Mo.1991). On September 3, 1991, Bannister filed a Motion to Alter or Amend the Judgment or, in the Alternative, to Reconsider the August 23, 1991, Order Denying Petitioner's Request for Writ of Habeas Corpus. This motion contained a new claim for relief, and thus was a second or successive petition for habeas corpus. On April 30, 1992, I issued an Order Denying the Motion to Alter or Amend the Judgment and denying the new claim for relief.
On September 24, 1994, the Eighth Circuit Court of Appeals affirmed the denial of Bannister's Petition for Writ of Habeas Corpus. Bannister v. Armontrout, 4 F.3d 1434 (8th Cir.1993). On October 31, 1994, the United States Supreme Court denied Bannister's Petition for Writ of Certiorari. Bannister v. Armontrout, ___ U.S. ___, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). On November 9, 1994, the Eighth Circuit Court of Appeals transmitted to this court its judgment affirming the denial of the Petition for Writ of Habeas Corpus.
On November 15, 1994, the Supreme Court of Missouri issued an Order and Warrant of Execution, setting Bannister's execution date for December 7, 1994. On November 17, 1994, the Eighth Circuit Court of Appeals recalled its November 9, 1994, Mandate.
On November 29, 1994, petitioner filed the present habeas corpus petition. The case was assigned to the Honorable Fernando J. Gaitan. A few hours after the case was filed, Judge Gaitan, being unfamiliar with the record, issued a stay of execution "to adequately review petitioner's petition for habeas corpus." On November 30, 1994, Judge Gaitan transferred this case to me, pursuant to Local Rule 35. Because the Mandate in No. 87-0637-CV-W-9 had been recalled, that case had not been terminated. Therefore, on November 30, 1994, I issued an order, in Bannister v. Armontrout, No. 87-0637-CV-W-9, reaffirming the stay of execution which had been in effect since 1988. Because a stay of execution was already in effect in No. 87-0637-CV-W-9, I vacated the stay in this case without prejudice to the filing of a new motion to stay if the stay in No. 87-0637-CV-W-9 were dissolved.
On December 2, 1994, the Eighth Circuit Court of Appeals, issued its mandate in No. 87-0637-CV-W-9, which terminated appellate review of the orders denying the first and second petitions for habeas relief. The stay of execution I had issued in No. 87-0637-CV-W-9 was thereby dissolved.
Thereafter, on December 2, 1994, petitioner filed his Second Emergency Motion for Stay of Execution in this case. On December 5, 1994, I denied petitioner's motion for stay of execution and denied his Third Petition for Writ of Habeas Corpus.
Petitioner appealed.
On December 5, 1994, the Eighth Circuit Court of Appeals stayed the execution to consider petitioner's appeal. While the appeal was pending before the Eighth Circuit Court of Appeals, the Supreme Court of the United States decided Schlup v. Delo, ___ U.S. ___, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
On January 27, 1995, the Eighth Circuit Court of Appeals granted respondent's motion for a limited remand ordering that I reconsider appellant's guilt phase claims in light of Schlup. The Court of Appeals also ordered that I could reconsider any of the other rulings challenged by appellant.
On January 31, 1995, I held a telephone conference in this case to set a schedule for briefing the issue of what impact Schlup had on this case.
On February 10, 1995, Bannister filed a Motion for an Evidentiary Hearing and Reconsideration of the Court's Order of December 5, 1994, Denying Request for Writ of Habeas Corpus.
Petitioner's Memorandum in Support of Motion (Doc. 26) at 3.
Bannister argues that the affidavits of Trombley, Wooten and others presented in support of his Third Petition for Writ of Habeas Corpus provide sufficient newly discovered evidence to entitle him to discovery and an evidentiary hearing under the Schlup standard.
The State responds that the newly discovered facts are neither newly discovered nor reliable. The State requests that I "certify to the United States Court of Appeals for the Eighth Circuit that petitioner's information fails to rise to the level of `probable actual innocence' within the meaning of Schlup v. Delo."
As ordered by the Court of Appeals, I will reassess Bannister's guilt phase claims in light of Schlup.
When a convicted State prisoner seeks habeas corpus relief from a federal court and fails to present all of his claims or all of the evidence he had in support of his claims in his first federal petition, the State prisoner will be barred from doing so in later habeas corpus petitions unless he can show "`cause and prejudice' sufficient to excuse this failure...." Schlup, ___ U.S. at ___, 115 S.Ct. at 861. If the State prisoner is unable to show "cause and prejudice," he may obtain review "only if he falls within the `narrow class of cases ... implicating a fundamental miscarriage of justice.'" Id.
The petitioner in Schlup, like Bannister here, relied upon a "miscarriage of justice" theory. Id. at ___, 115 S.Ct. at 861. The petitioner in Schlup claimed that he was innocent of capital murder and that the trial court committed a constitutional error at his trial.
For that reason, Schlup's conviction may not be entitled to the same degree of respect as one ... that is the product of an error-free trial. Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim. However, if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.
To get through this gateway, a petitioner must present "new reliable evidence" not presented at trial establishing "sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial." Id. at ___ - ___, 115 S.Ct. at 861-62. The "new reliable evidence" not presented at trial must be sufficient to convince the court "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at ___, 115 S.Ct. at 867. This standard "ensures that petitioner's case is truly `extraordinary' ... while still providing petitioner a meaningful avenue by which to avoid manifest injustice." Id.
The meaning of actual innocence as formulated by Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), and Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probablistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.
Id. at ___, 115 S.Ct. at 868 (full citations added).
Here, as in Schlup, this standard must be applied to a request for an evidentiary hearing.
In this case, the application of the Carrier standard arises in the context of a request for an evidentiary hearing. In applying the Carrier standard to such a request, the District...
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Bannister v. Delo
...establish cause and prejudice or actual innocence and, reaffirming much of its previous order, dismissed his petition. Bannister v. Delo, 904 F. Supp. 998 (W.D. Mo. 1995). This appeal II. Disqualification Before addressing Bannister's arguments concerning the district court's dismissal of t......