Abdullah v. Groose

• Citation: 75 F.3d 408
• Decision Date: 31 January 1996
• Docket Number: No. 94-1783,94-1783
• Parties: Hillum Safat Qital ABDULLAH, also known as Tommie Lee West, Appellee, v. Michael GROOSE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 408

75 F.3d 408

Hillum Safat Qital ABDULLAH, also known as Tommie Lee West, Appellee, v. Michael GROOSE, Appellant.

No. 94-1783.

United States Court of Appeals,

Eighth Circuit.

Submitted May 23, 1995.

Decided Jan. 31, 1996.

John W. Simont, Asst. Atty. Gen., argued, Jefferson City, MO, for appellant.

R. Gregory Bailey, St. Louis, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, EN BANC.

MAGILL, Circuit Judge.

Michael Groose, Superintendent of the State of Missouri's Jefferson City Correctional Center (the State), appeals the district court's grant of a writ of habeas corpus to Hillum Safat Qital Abdullah. Because we believe that Abdullah is procedurally barred from obtaining habeas relief on the Sixth Amendment claim, we reverse.

I.

This § 2254 habeas corpus appeal stems from Abdullah's conviction in Missouri state court for unlawful use of a weapon in violation of Mo.Rev.Stat. § 571.030.1(1) (1986). At his state court trial, Abdullah was originally represented by the public defender. Prior to trial, while in leg irons, Abdullah moved to dismiss his attorney and proceed pro se. After a general Faretta ¹ inquiry, the court allowed Abdullah to proceed pro se. Immediately thereafter, the prosecutor moved to require that Abdullah remain in leg irons throughout the trial because he was under a ten-year sentence on a related matter and had attempted to escape from the same courthouse during a trial one year prior to this matter. The state trial court ordered Abdullah to proceed to trial with leg irons. Neither Abdullah nor his court-appointed attorney (who had not yet withdrawn) objected to this order. After a jury trial, Abdullah was convicted, and on February 27, 1987, he was sentenced to five years imprisonment as a persistent offender.

Abdullah pursued a direct appeal in state court, arguing, among other issues, that wearing leg irons during the state trial deprived him of his Fourteenth Amendment right to a fair trial. In his state appellate brief, Abdullah never argued that the trial court's order requiring him to wear leg irons implicated his Sixth Amendment right to counsel. ² Instead, his arguments focused on a Fourteenth Amendment deprivation of the right to a fair trial because the trial court did not consider less restrictive alternatives before ordering Abdullah to proceed to trial in leg irons. Resp. Ex. F. Abdullah cited five state cases ³ and two United States Supreme Court cases ⁴ in support of this Fourteenth Amendment claim. In response, the State argued that Abdullah waived this issue by failing to contemporaneously object and that, in any event, the trial court was within its discretion in ordering leg irons because Abdullah had attempted to escape on a prior occasion. Resp. Ex. G. Because Abdullah had not objected to the order requiring leg irons at trial, the Missouri Court of Appeals reviewed this claim for plain error resulting in manifest injustice under Mo.R.Crim.P. 29.12(b). In undertaking this review, the Missouri Court of Appeals noted: "In light of the overwhelming proof of defendant's guilt, we find [no plain error resulting in manifest injustice]," and affirmed Abdullah's conviction. State v. West, 743 S.W.2d 592, 594 (Mo.App.1988). In its decision, the Missouri Court of Appeals did not cite federal law.

Abdullah then petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1988). The district court, adopting the recommendations of the magistrate judge, determined that although Abdullah failed to object to the leg irons at trial, he was not procedurally barred from raising this claim because the Missouri appellate court's discretionary review of the claim constituted a review on the merits. Appellant's Addendum at 16-20. However, the district court did not condition its grant of habeas relief on a finding that the State violated Abdullah's constitutional rights to due process by requiring him to proceed to trial in leg irons. Rather, the district court determined sua sponte, rejecting the State's Teague ⁵ "new rule" arguments, that Abdullah was entitled to habeas relief because his Sixth Amendment rights were violated in that he did not knowingly and intelligently exercise his right of self-representation since the state trial court did not include the dangers of proceeding pro se in leg irons in its Faretta colloquy.

The State appealed, asserting that: Abdullah was procedurally barred from asserting this claim; the district court's decision announced a new rule in violation of Teague; and the district court failed to apply the harmless error review standard mandated by Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). A panel majority affirmed the district court's grant of a writ of habeas corpus. Abdullah v. Groose, 44 F.3d 692 (8th Cir.1995). ⁶ This rehearing en banc followed, and we reverse.

II.

Before a state prisoner is entitled to federal habeas corpus relief, he must first exhaust his state remedies and present the habeas claim to the state court. Pollard v. Armontrout, 16 F.3d 295, 297 (8th Cir.1994). When reviewing a federal habeas corpus petition, we can usually only consider "those claims which the petitioner has presented to the state court in accordance with state procedural rules." Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992). If a prisoner has not presented his habeas claims to the state court, the claims are defaulted if a state procedural rule precludes him from raising the issues now. We will not review a procedurally defaulted habeas claim because "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir.1994) (internal quotation and citation omitted). "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

As such, Abdullah is procedurally barred from obtaining habeas relief on his Sixth Amendment claim unless he presented the claim to the Missouri state court, or can demonstrate cause and prejudice for the default or that a fundamental miscarriage of justice will occur.

A. Fairly Present Claims to State Court

In order to present a habeas claim to the state court, a prisoner must "fairly present" not only the facts, but also the substance of his federal habeas corpus claim. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam). In this circuit, to satisfy the "fairly presented" requirement, Abdullah was required to "refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue" in the Missouri state court. Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993) (internal quotation and citation omitted). Furthermore, presenting a claim to the state courts that is merely similar to the federal habeas claim is insufficient to satisfy the fairly presented requirement. Duncan v. Henry, --- U.S. ----, ----, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam).

On direct appeal to the Missouri Court of Appeals, Abdullah raised three issues: (1) erroneous admission of other crimes evidence; (2) improper prosecutorial comment on the other crimes evidence; and (3) a Fourteenth Amendment due process challenge to the trial court's order requiring leg irons. As discussed earlier, Abdullah's challenge to the leg irons in state court focused solely on Fourteenth Amendment due process grounds. His state brief does not contain any arguments that (1) his waiver of counsel under Faretta was neither knowing nor intelligent because the trial court ordered him to proceed pro se in leg irons; (2) refer to the Sixth Amendment; (3) refer to a federal case involving Faretta; or (4) refer to a state court case raising a Sixth Amendment issue. Likewise, the state court opinion contains no reference to the Sixth Amendment or any other federal law.

Accordingly, we believe that Abdullah failed to "fairly present" his Sixth Amendment claim under Faretta to the Missouri state court. ⁷ Although Abdullah presented his Fourteenth Amendment due process claim concerning his appearance at trial in leg irons, this does not encompass his Sixth Amendment claim that his Faretta rights were violated even though the claims are based on the same underlying factual basis. See Ashker, 5 F.3d at 1179-80 (alleging Fourteenth Amendment due process violation for improper admission of hearsay does not present confrontation clause claim). The Ashker court noted that confrontation-clause analysis is a separate analysis that does not necessarily overlap with a hearsay analysis. Id. at 1180.

It goes without saying that a due process leg irons analysis is separate and distinct from a Faretta analysis. The Fourteenth Amendment due process challenge requires balancing the possibility of prejudice resulting from the leg irons against "the need to maintain order in the courtroom and custody over incarcerated persons." United States v. Stewart, 20 F.3d 911, 915 (8th Cir.1994). On the other hand, determining whether a defendant properly elected to proceed pro se under Faretta requires determining whether the defendant's waiver of counsel was knowingly, intelligently and voluntarily made. United States v....