94 F.3d 1177 (8th Cir. 1996), 95-3932, Reese v. Delo

Docket Nº:95-3932.
Citation:94 F.3d 1177
Party Name:Donald E. REESE, Appellant, v. Paul DELO, Superintendent, Potosi Correctional Center, Appellee.
Case Date:September 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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94 F.3d 1177 (8th Cir. 1996)

Donald E. REESE, Appellant,


Paul DELO, Superintendent, Potosi Correctional Center, Appellee.

No. 95-3932.

United States Court of Appeals, Eighth Circuit

September 4, 1996

        Submitted June 10, 1996.

        Rehearing and Suggestion for Rehearing

        En Banc Denied Oct. 28, 1996.

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        Charles Mass, St. Louis, MO, argued (Marta H. Tilney, on the brief), for appellant.

        Stacy L. Anderson, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

        Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and DOTY, [*] District Judge.

        WOLLMAN, Circuit Judge.

        Donald E. Reese, a Missouri inmate sentenced to death, appeals the district court's 1 denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

       I. Background

        On March 25, 1988, Reese was convicted of two counts of first-degree murder. The details of the crime were set forth by the Missouri Supreme Court in State v. Reese, 795 S.W.2d 69 (Mo.1990) (en banc), cert. denied, 498 U.S. 1110, 111 S.Ct. 1025, 112 L.Ed.2d 1106 (1991), and are summarized here.

        On September 9, 1986, four bodies were discovered at the Marshall Junction Wildlife Reserve shooting range. After the investigating officers learned that Reese had purchased the type of ammunition used in the killings, they conducted several interviews with him, as well as a consensual search of his home. Following his arrest on September 15, Reese asked the officers whether he should retain an attorney. The officers replied that they could not advise him on the matter but that an attorney could be furnished if he wanted one. Reese replied, "Forget it," whereupon he was read his Miranda rights. After waiving his rights, Reese talked with the officers for approximately three hours and denied participation in the crime. Later that evening he was arraigned on a complaint charging him with multiple counts of first degree murder, armed criminal action, and robbery. He was advised of his right to retain an attorney, right to be assigned an attorney if he could not afford one, and right to remain silent. A preliminary hearing was set for September 18.

        The next morning, Reese again waived his Miranda rights and refused an officer's offer to telephone an attorney for him by replying, "I didn't do it and I don't need an attorney and I don't want one." An officer then advised Reese that he needed to have an attorney for the preliminary hearing and that that policy required him to fill out a form to determine whether he was financially eligible for the appointment of the public defender. Reese continued to talk to the officers for approximately one hour. He again denied his involvement in the crime and reaffirmed that he did not need an attorney.

        The interview resumed later that afternoon after Reese confirmed that he had waived his Miranda rights. During the course of the interview, Reese was visited by his wife and his son. At approximately 6:00 p.m. that evening, Reese admitted that he killed the four men. His statement was reduced to writing and included an express waiver of his Miranda rights. Reese later led the officers to the place where he had hidden the murder weapon and the victims' wallets and money.

        Reese was charged with two counts of first-degree murder. After the jury found him guilty, the state presented evidence at the penalty phase of the trial that Reese had attended the funeral of two of the victims and had posed as a family friend despite the fact that he did not know the victims. John Lewis, Reese's cellmate, testified that Reese had told him that he went to the shooting range intending to get money. Reese also related the details of the crime to Lewis. Despite Reese's presentation of mitigating evidence through family members and other witnesses, the jury recommended a sentence

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of death for both offenses, citing as aggravating circumstances that Reese had murdered the victims for the purpose of receiving money and during the course of a robbery. The trial court sentenced Reese to death for the murder of James Watson and to life imprisonment for the murder of Christopher Griffith, after taking into consideration the fact that Griffith's family had expressed their opposition to the death penalty.

        On November 14, 1988, Reese filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. On July 20, 1989, the post-conviction court denied Reese's request for relief after conducting an evidentiary hearing. Reese then appealed both his convictions and sentences, along with the denial of post-conviction relief, to the Missouri Supreme Court. See Reese, 795 S.W.2d 69. The Missouri Supreme Court affirmed his convictions, sentences, and the denial of post-conviction relief in the consolidated appeal. Id.

        Reese then petitioned for relief in federal district court. On October 24, 1995, the district court denied Reese's second amended petition for habeas corpus and granted him a certificate of probable cause to appeal. On appeal Reese presents most of the claims denied by the district court.

       II. Ineffective Assistance of Counsel

        Reese first claims that his trial attorney was ineffective in failing to: (1) investigate his background, psychological impairments, and family history; (2) withdraw as counsel or preserve the attorney-client relationship when it began to break down before trial; and (3) investigate and prepare the penalty phase evidence.

        We review ineffective assistance claims de novo, as they present mixed questions of law and fact. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). The district court held that Reese's ineffective assistance claims were procedurally barred because he failed to advance his claims on appeal from the denial of his Rule 29.15 motion for post-conviction relief. We agree. In Missouri, a claim presented in a Rule 29.15 motion but not advanced on appeal is considered abandoned. Sloan v. Delo, 54 F.3d 1371, 1382 (8th Cir.1995) (citing O'Neal v. State, 766 S.W.2d 91, 91(Mo.) (en banc), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)), cert. denied, --- U.S. ----, 116 S.Ct. 728, 133 L.Ed.2d 679 (1996).

        Reese's contention that the ineffective assistance claims are not barred because he raised them in his state habeas corpus petition pursuant to Missouri Supreme Court Rule 91 is without merit. See State ex rel. Simmons v. White, 866 S.W.2d 443, 444 (Mo.1993) (en banc) (petitioner who fails to advance claim on appeal cannot seek review in Rule 91 petition unless claim presents jurisdictional issue or circumstances so "rare and extraordinary" that manifest injustice will result). Although the Missouri courts have not yet determined what circumstances constitute manifest injustice, we have held that "state habeas proceedings are not to be used in lieu of Rule 29.15 unless the petitioner can demonstrate that the claim was not 'known to him' when he filed his 29.15 motions." Sloan, 54 F.3d at 1382 (citing Simmons, 866 S.W.2d at 446-47). Clearly, this is not the case here. Likewise, Reese's contention that the claims are not barred because they were raised in his motion to recall the mandate is without merit, for "a motion to recall the mandate cannot be used to allege ineffective assistance of trial counsel." Nave v. Delo, 62 F.3d 1024, 1031 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

        Reese further argues that his claims are not procedurally barred because Rule 29.15 was designed to thwart federal habeas review of his state convictions and is thus invalid. "[A] procedural default under state law may constitute independent and adequate state law grounds precluding federal review." Oxford v. Delo, 59 F.3d 741, 744 (8th Cir.1995) (citing Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989)), cert. denied, --- U.S. ----, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996). The state procedural rule must be both firmly established and regularly followed, however, to preclude federal review. Id. We have

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previously rejected claims that Rule 29.15 is an inadequate state ground to bar federal review. See, e.g., Sloan, 54 F.3d at 1379-81 (time limit procedures under Rule 29.15 adequate); Oxford, 59 F.3d at 745 (verification requirement of Rule 29.15 was firmly established and regularly followed). Moreover, Reese fails to even allege that any procedural requirement under Rule 29.15 was not firmly established or regularly followed, so as to preclude review of his claims. See Oxford, 59 F.3d at 744-45.

        Because Reese's claims are procedurally defaulted, he must show cause and actual prejudice from the alleged constitutional violations to warrant federal review. Forest v. Delo, 52 F.3d 716, 719 (8th Cir.1995). Reese raises the ineffective assistance of his post-conviction appellate counsel as cause. There is no right to counsel in state post-conviction proceedings, however, Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), and thus a claim that post conviction appellate counsel was ineffective does not constitute cause for default. Lowe-Bey v. Groose, 28 F.3d 816, 819 (8th Cir.), cert. denied, 513 U.S. 1061, 115 S.Ct. 674, 130 L.Ed.2d 606 (1994). Because Reese has failed to overcome the procedural bar, we decline to reach the merits of his ineffective assistance claims.

       III. Prosecutorial Misconduct

        Reese next raises three claims of prosecutorial...

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