Shaw v. Delo

• Decision Date: 04 August 1992
• Docket Number: No. 91-1909,91-1909
• Parties: Bobby Lewis SHAW, Appellant, v. Paul DELO, Superintendent, Missouri State Correctional Facility at Potosi, and Attorney General of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 181

971 F.2d 181

Bobby Lewis SHAW, Appellant, v. Paul DELO, Superintendent, Missouri State Correctional Facility at Potosi, and Attorney General of the State of Missouri, Appellees.

No. 91-1909.

United States Court of Appeals Eighth Circuit.

Submitted June 11, 1991.

Decided Aug. 4, 1992.

Rehearing and Rehearing En Banc Denied;

Stay of Execution Denied Sept. 28, 1992.

Donald L. Wolff, Clayton, Mo., argued, for appellant.

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

Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

FAGG, Circuit Judge.

Bobby Lewis Shaw, a Missouri death row prisoner, appeals the district court's dismissal of his second petition for a writ of habeas corpus. We affirm.

I.

While Shaw was incarcerated in Missouri in July 1979, he killed Walter Farrow, a prison corrections officer. The evidence presented at Shaw's trial shows Shaw calmly and deliberately killed Farrow in the course of carrying out a plan to kill Clint Wyrick, the warden's uncle and a prison commissary employee, for payment.

Before the murder, inmate Byron Berry overheard Shaw's discussion with a fellow inmate. The fellow inmate asked Shaw, "When are you going to do that?" Shaw responded, "I'm going--might as well do it, now." Shaw or his fellow inmate mentioned a ring as payment and the name "Clint." Shortly after this conversation, Shaw entered the prison's vegetable preparation room where he worked.

Following normal prison procedure, Officer Farrow had checked out two butcher knives and fifteen paring knives from the prison's cold storage area. The inmates Farrow supervised used the knives to prepare fresh vegetables. Shaw removed the two butcher knives from an unlocked cabinet where Farrow had placed them and stabbed Farrow in the chest, inflicting a wound seven inches deep. With knives in hand, Shaw ran out of the room and down the hall to the prison commissary where Wyrick worked.

Wyrick was sitting at his desk when Shaw entered the room. Shaw moved quickly around Wyrick's desk and began stabbing at Wyrick's chest with both butcher knives. Wyrick fended off many of Shaw's blows with his right arm, but Shaw was able to stab Wyrick once in the chest and twice in the stomach. After stabbing Wyrick for at least thirty seconds, Shaw ran out of the commissary.

A guard heard of the stabbing and ran outside to seal off the area. As the guard attempted to close a gate, Shaw approached and told the guard to get out of his way. When the guard refused, Shaw pulled the two butcher knives from his waistband and moved towards the guard. The guard retreated and Shaw went through the gate. After the guard shouted to another guard to close the next gate in Shaw's path, Shaw ran through that gate. Shaw stopped and surrendered, however, when he heard the guard order a tower guard to shoot Shaw if he continued to run. Walter Farrow died from the wound Shaw inflicted.

II.

A jury convicted Shaw of capital murder and recommended the death penalty. The Missouri Supreme Court affirmed Shaw's conviction and sentence on direct appeal. State v. Shaw, 636 S.W.2d 667, 669 (Mo.) (en banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). Later, Shaw unsuccessfully sought postconviction relief in state court. Shaw v. State, 686 S.W.2d 513, 514 (Mo.Ct.App.1985). Shaw filed his first federal habeas petition in 1985. The district court denied Shaw's first petition in 1988 and we affirmed. Shaw v. Armontrout, 900 F.2d 123, 124 (8th Cir.1990).

After the denial of Shaw's first habeas petition, Shaw's second habeas attorney obtained previously unutilized prison records concerning Shaw. Shaw focuses on a prison medical record showing he was hospitalized for psychiatric observation for ten days in February 1978 based on a report that he hallucinated hearing voices one night. The prison records also contain a report by investigating officers stating another inmate asked Shaw to kill Wyrick for a diamond ring, school records documenting Shaw's low intelligence quotient, and family information. Shaw's second habeas attorney also obtained an affidavit from Shaw's mother and sister reporting Shaw's odd behavior beginning in his childhood. Relying primarily on this information, Shaw filed his second federal habeas petition in 1990, raising four exhausted claims: (1) he received ineffective assistance of trial counsel because counsel failed to investigate and present evidence of Shaw's diminished mental capacity during the guilt and penalty phases of Shaw's trial; (2) he received ineffective psychiatric assistance at trial because the psychiatrist was not furnished with the prison records; (3) the jury should have been instructed on Shaw's diminished mental capacity during the penalty phase of his trial; and (4) contrary to Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the penalty-phase jury instructions told the jury they could not consider a mitigating circumstance unless all twelve jurors found the mitigating circumstance existed. Shaw also claims he is incompetent to be executed. Without addressing the merits of Shaw's claims, the district court dismissed Shaw's petition.

III.

After a state prisoner's first federal habeas petition has been decided, federal courts generally cannot consider the merits of claims raised in the prisoner's later federal habeas petitions. Federal courts must usually dismiss claims raised in later habeas petitions as successive or abusive. See 28 U.S.C. §§ 2244, 2254 rule 9(b) (1988). Repetitive claims that have been "raised and decided adversely on the merits in an earlier petition" are successive. Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991); see also Sanders v. United States, 373 U.S. 1, 15-17, 83 S.Ct. 1068, 1077-1078, 10 L.Ed.2d 148 (1963). New claims that were not raised in an earlier petition are potentially abusive. McCleskey v. Zant, --- U.S. ----, ----, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991); Olds, 919 F.2d at 1332. If a petitioner shows cause and prejudice, however, the district court may consider the claims' merits. Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); McCleskey, --- U.S. at ----, 111 S.Ct. at 1470.

The cause requirement focuses on the petitioner's conduct. McCleskey, --- U.S. at ----, 111 S.Ct. at 1472. The requirement "is based on the principle that [a] petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition." Id. "If what [the] petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what [the petitioner] does not know is irrelevant." Id. Thus, to establish cause, the petitioner must show some external impediment, such as governmental interference or the reasonable unavailability of a claim's factual basis, " 'preventing counsel from constructing or raising a claim.' " Id. (quoting Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986)).

A.

Shaw concedes he raised his ineffective assistance of trial counsel claim in his first petition. Because the first habeas court decided this claim on the merits, see Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir.1990) (decision that a claim is procedurally barred is on the merits), we agree with the district court that this claim is successive. Nevertheless, Shaw asserts "it was 'impracticable' for this claim to have been raised as forcibly as it should have been" in the first habeas petition because Shaw's first habeas attorney was unaware of the prison records. (Appellant's Br. at 25.) Thus, Shaw's first habeas attorney did not assert that trial counsel failed to discover the records and present them as mitigating evidence. Although Shaw concedes the records existed at the time of trial, Shaw essentially asserts that his first habeas attorney's failure to discover the records is cause for consideration of the merits of his ineffective assistance of trial counsel claim. We disagree.

Shaw cannot show cause for not bringing all the evidence supporting his ineffective assistance of counsel claim in his first federal habeas petition. See Sawyer, --- U.S. at ----, 112 S.Ct. at 2522. Shaw does not show that governmental interference prevented his first habeas attorney from obtaining the records. Nor does Shaw show that the records were not reasonably available. Given the personal nature of the information about Shaw, the common knowledge that prisons routinely keep records concerning prisoners, and the discovery of the records by Shaw's second habeas attorney, we believe that with reasonable diligence, Shaw's first habeas attorney could have discovered this information. See Jones v. Whitley, 938 F.2d 536, 541-42 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991). Further, the mere discovery of "new" evidence that strengthens Shaw's ineffective assistance of trial counsel claim raised in his first federal habeas petition is not cause warranting consideration of the claim's merits in this second federal habeas action. See id. at 542; McCleskey, --- U.S. at ----, 111 S.Ct. at 1472. Finally, the simple failure of Shaw's first habeas counsel to discover the records cannot constitute cause because Shaw had no constitutional right to counsel in the first habeas proceeding. Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992); see McCleskey, --- U.S. at ----, 111 S.Ct. at 1470 ("[a]ttorney error short of [constitutionally] ineffective assistance ... does not constitute cause"); see also Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991) (identifying attorney error constituting cause).

B.

Shaw concedes he raised his...