917 F.2d 1037 (8th Cir. 1990), 90-1491, Byrd v. Delo

Docket Nº:90-1491.
Citation:917 F.2d 1037
Party Name:Maurice Oscar BYRD, Appellant, v. Paul DELO, Superintendent, State Correctional Facility at Potosi, and Attorney General of the State of Missouri, Appellees.
Case Date:October 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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917 F.2d 1037 (8th Cir. 1990)

Maurice Oscar BYRD, Appellant,


Paul DELO, Superintendent, State Correctional Facility at

Potosi, and Attorney General of the State of

Missouri, Appellees.

No. 90-1491.

United States Court of Appeals, Eighth Circuit

October 19, 1990

        Submitted April 12, 1990.

        Rehearing Granted Oct. 26, 1990.

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[Copyrighted Material Omitted]

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        Burton H. Shostak, D.J. Kerns, Theodore A. Zimmermann, St. Louis, Mo., for appellant.

        Stephen Hawke, Jefferson City, Mo., for appellees.

        Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.

        McMILLIAN, Circuit Judge.

        Maurice Oscar Byrd, a Missouri death-row inmate, appeals an order of the United States District Court 1 for the Eastern District of Missouri denying his second petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Byrd v. Delo, 733 F.Supp. 1334 (E.D.Mo.1990). In the alternative, Byrd requests that his stay of execution be continued. For the reasons discussed below, we affirm the order of the district court and dissolve the stay of execution. 2


        This is Byrd's second habeas petition. Byrd's claims fall into two broad categories: three claims which were considered and rejected by this court in Byrd's first action ("repetitive claims") and six claims which were not raised in Byrd's first petition ("new claims").


            The court may reconsider habeas claims previously denied on the merits if the "ends of justice" so require. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (Sanders). For instance, reconsideration is appropriate if the petitioner has shown "change in the law or some other justification for having failed to raise a crucial point or argument in the prior application," id. at 17, 83 S.Ct. at 1078, quoted in Williams v. Lockhart, 862 F.2d 155, 158 (8th Cir.1988), or if there are "new facts or legal developments warranting relitigation of the claim." Williams v. Lockhart, 862 F.2d at 158.

            In addition, at least one panel of this Circuit has held that in order to relitigate repetitive claims, a petitioner must also make "a colorable showing of factual innocence."

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    Williams v. Armontrout, 855 F.2d 578, 580 (8th Cir.1988), quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality); see also Mercer v. Armontrout, 864 F.2d 1429, 1434 (8th Cir.1988) (dictum). But cf. Wilson v. Lockhart, 892 F.2d 754, 756 (8th Cir.1990); Williams v. Lockhart, 862 F.2d at 158 (cases declining either to adopt or to reject "factual innocence" test). A requirement of "factual innocence" supplements rather than supplants the "new factual/legal issues" development. See Williams v. Lockhart, 862 F.2d at 157-58 ("factual innocence" requirement imposes "additional burden" on petitioners).

            On appeal, Byrd has raised repetitive claims of ineffective assistance of counsel ("Ground E" in his habeas petition), racially biased jury selection ("Ground F") and denial of the right to offer evidence of mitigating circumstances ("Ground H"). Each of these arguments will be addressed in turn.

    1. Ground E--Ineffective Assistance of Counsel

              Ground E of Byrd's petition alleges that his trial counsel erroneously and unreasonably called Oscar Ford to testify on Byrd's behalf. Shortly after the murder, Ford stated that he had seen three black men, one of whom resembled a Mr. Kirksey, leave the location of the murders (a shopping center) in a yellow car. Before the trial, Ford recanted his earlier statements and stated that he had in fact seen Byrd at the shopping center. At trial, Ford again testified that he had seen Byrd at the time and place of the murders.

              In our review of Byrd's first petition, we held that counsel had "a reasonable basis for the decision to call Oscar Ford." Byrd v. Armontrout, 880 F.2d 1 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). We held that counsel sought to introduce Byrd's original statement to the police implicating Kirksey in order to corroborate the testimony of Faraby Lombardo, who had testified:

      that she had seen three black men in a yellow car in the neighborhood around 8:10 that morning. Such testimony would clearly be exculpatory, since the state's own case had included the testimony of a woman with whom Byrd worked that Byrd was already at work around 7:50 that morning.

              Id. at 5. Thus, we concluded, it seemed reasonable "that counsel would decide to use Ford's testimony to establish the 'yellow car' defense." Id.

              In the instant petition, Byrd argues that an intervening change in the law requires reconsideration of Ground E. In Harris v. Reed, 894 F.2d 871 (7th Cir.1990) (Harris ), the district court found that the failure of the petitioner's trial attorney to put on any evidence in his client's defense did not constitute ineffective assistance of counsel, because of the weakness of the petitioner's evidence. The Seventh Circuit found that trial counsel "did not offer the strategic justifications provided by the district court," id. at 878, and accordingly reversed because "[j]ust as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer." Id. In sum, Harris stands for the proposition that courts may not deny claims of ineffective assistance of counsel based on justifications created by the court rather than by counsel.

              Byrd argues that Harris requires reconsideration of his claim because this court manufactured a "yellow car" defense which counsel did not offer or intend to offer. We disagree. The record shows that trial counsel said in his opening statement that "we'll introduce testimony from Mr. Ford about what his original description was. That he saw these individuals [none of whom was Byrd] leave in a yellow car." (Trial Transcript at 713.) In addition, trial counsel asked Ford about the "yellow car" theory at trial (Trial Transcript at 738) and discussed the yellow car in his closing statement (Trial Transcript at 941-42).

              Furthermore, counsel's testimony at the state post-conviction relief hearing ("the

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      27.26 hearing") 3 also addresses the "yellow car" defense. Counsel testified that he called Ford to the stand to corroborate Lombardo's testimony that on the morning of the murders:

      she saw an automobile fitting the description of the car Mr. Ford saw pull up on her street and a black man exited the car and there were two other individuals in the car, and that the black man placed a large bag in the trunk of a large car and re-entered the car and left again.

              Brief of Appellant at 32. Counsel added that "I was assuming Mr. Ford would say that he picked out Mr. Kirksey, and felt Faraby Anysia Lombardo would say that was the same individual she saw on her street." Id. Although counsel did not mention a yellow car in this portion of his testimony, the passages cited clearly restate the "yellow car" theory.

              On the other hand, Byrd relies on the following exchange from the Rule 27.26 hearing:

      Q: But at the point in time Oscar Ford was on the stand, the State had already suggested to the Court that, in fact, the yellow Ford had nothing to do with the crime, is that correct, another car was possibly used?

      A: I don't recall, but I don't think anything really pointed to the yellow Ford.

      Q: Yet, as far as his testimony, he saw three men near a yellow Ford?

      A: I think another car, a green Plymouth, another vehicle.

              Brief of Appellant at 33 (emphasis in original). Byrd interprets this passage to mean that counsel never sought to establish the "yellow car" theory. In light of the testimony cited above, other interpretations are equally plausible. For instance, Aylward might have questioned the truth of the "yellow car" theory after the trial, or might have merely been describing the prosecution's theory. Neither possibility, however, forecloses a finding that the "yellow car" theory was used at the time of trial.

              In sum, we reiterate our view that counsel sought to use the "yellow car" defense at trial and sought to use Ford's initial identification to corroborate Lombardo's testimony. Thus, we did not improperly "construct strategic defenses which counsel does not offer," Harris, 894 F.2d at 878, and Byrd cannot point to any new legal developments supporting reconsideration of Ground E. 4

    2. Ground F--Racially Biased Jury Selection

              Byrd was convicted by a all-white jury and has relied on various legal theories to support his claim that the prosecution unconstitutionally kept blacks off the jury.

              In his Rule 27.26 petition, Byrd relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson), which prohibited prosecutors from using peremptory strikes to create an all-white jury. Batson overruled Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837-38, 13 L.Ed.2d 759 (1965) (Swain), which allowed prosecutors to use peremptory strikes to create an all-white jury in individual cases, as long as they did not systematically keep blacks off juries. The state courts rejected this claim, based on Allen v. Hardy, 478

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      U.S. 255, 258, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) (Allen ) (holding that Swain test still applies to pre-Batson trials, because (1) decisions such as Batson, which overrule precedent, are generally not applied retroactively, (2) Batson rule, unlike other rules which have been applied retroactively, serves ends other than integrity of jury factfinding, (3) prosecutors and judges have relied on Swain, and (4) retroactive application of Batson would seriously...

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