Amrine v. Bowersox

• Citation: 128 F.3d 1222
• Decision Date: 10 December 1997
• Docket Number: No. 96-1892,96-1892
• Parties: Joseph AMRINE, Appellant, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1222

128 F.3d 1222

Joseph AMRINE, Appellant, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Appellee.

No. 96-1892.

United States Court of Appeals Eighth Circuit.

Submitted April 15, 1997.

Decided Nov. 3, 1997.

Rehearing Denied Dec. 10, 1997.

Sean Dennis O'Brien, Kansas City, MO, argued, for appellant.

Frank A. Jung, Jefferson City, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, ¹ Senior Circuit Judge, McMILLIAN, FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.

MURPHY, Circuit Judge.

Before the court is Joseph Amrine's motion to remand to the district court prior to the briefing on his appeal from the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Amrine seeks a remand because of new evidence discovered after his petition was ruled on by the district court. ² He says this new evidence shows him actually innocent of the murder of a fellow prison inmate for which he has been sentenced to death. He wants to introduce at an evidentiary hearing testimony from the eyewitnesses who made the case against him at trial because they have now all sworn that that testimony was false and induced by pressure. He asserts this evidence meets the gateway test of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), so that the constitutional claims found by the district court to have been procedurally barred should be considered on the merits before the appeal proceeds.

I.

Amrine was convicted of murdering Gary Barber on October 18, 1985 in a recreation room at the Potosi Correction Center in Cole County, Missouri. Barber was stabbed in the back with an ice pick at a punching bag. There were two correctional officers and approximately 45 to 50 inmates in the room at the time. Amrine has always maintained that he did not kill Barber and that he was involved in a poker game in a different area of the room at the time of the stabbing.

Amrine was charged with first degree murder, and the state relied primarily on three witnesses at trial. Inmates Randy Ferguson and Jerry Poe were the only people who claimed to have seen the killing, and they both testified that they saw Amrine stab Barber. A third prisoner, Terry Russell, testified that he had not seen the murder but that there were bad feelings between Amrine and Barber, that Amrine had threatened Barber a week before the killing, and that Amrine admitted his guilt to him afterward. Although he said he had not been in the recreation room at the time of the slaying, Russell had suggested to investigators that Amrine was the killer. Russell also testified that Barber and he had been placed in detention for fighting with each other and that they had been released back into the general population only hours before the stabbing.

Amrine offered testimony to show he could not have been the killer and to suggest that Terry Russell was. Six prisoners ³ who had been in the recreation room testified that Amrine was involved in a poker game in a different part of the room at the time of the stabbing. Five ⁴ of them saw Barber turn and chase after someone after he was stabbed, before he collapsed and died. Three identified Terry Russell as the person being chased by Barber; none of them named Amrine.

The two correctional officers who had been in the recreation room testified that they first became aware something was wrong when they saw Barber run across the room toward another inmate before he collapsed. Officer John Noble was called by the state and initially testified that he was sure the person Barber had been chasing was Terry Russell and that he had told another officer this shortly after the stabbing. After repeated questioning by the prosecution, Noble indicated he was not certain that Russell was the one being chased by Barber and that Russell and Amrine were similar in size, coloration, and hair style. A third correctional officer stationed outside of the room testified that he saw Russell leave the recreation room before the stabbing, and a fourth said he saw Russell both inside and outside the recreation room after the incident.

The state's case did not rest on physical evidence. Although a small amount of blood was found on Amrine's clothing, there was no evidence as to its age or source. A state serologist testified that he had been unable to determine the blood type because there was too little to provide a sample that could be tested. The jury found Amrine guilty of first degree murder and sentenced him to death.

After the Missouri Supreme Court affirmed his conviction and sentence, State v. Amrine, 741 S.W.2d 665 (Mo.1987) (en banc), Amrine moved for post-conviction relief. The state court held a hearing at which Randy Ferguson and Terry Russell recanted their trial testimony. Ferguson now testified that he had actually been in the bathroom at the time of the stabbing and did not witness it, but that he had been pressured by Missouri officials into falsely testifying at trial that he had seen Amrine stab Barber. Ferguson testified that George Brooks, an investigator for the state prison system, and Richard Lee, an investigator for the Cole County prosecutor's office, had thrown him up against a wall, choked him, and threatened him with a "snitch jacket" ⁵ if he did not comply. After Ferguson agreed to testify, he was placed in protective custody, and an unrelated charge against him was dismissed. Terry Russell also testified that he had been pressured into giving false testimony against Amrine. He stated that his trial testimony, claiming he had heard Amrine threaten Barber and confess to his killing, had been false and that Brooks and a deputy sheriff from Cole County named John Hemeyer had threatened he would be charged with the murder if he did not give the desired testimony. ⁶ Investigators Brooks and Lee testified and denied pressuring Ferguson and Russell to implicate Amrine, but they acknowledged that a charge against Ferguson had been dismissed and that he had been placed in protective custody in exchange for his testimony. Although featured in Russell's testimony, deputy sheriff Hemeyer did not appear as a witness.

The state trial court denied Amrine's post conviction motion for relief. The court found that Ferguson's testimony about threats was "unworthy of belief" and designed merely to help a fellow inmate. It also found Russell's testimony not credible, but motivated by the desire to gain the good will of Amrine so that he could be released from protective custody. Amrine appealed, and the Missouri Supreme Court affirmed. Amrine v. State, 785 S.W.2d 531 ( Mo.1990) (en banc).

II.

Amrine then filed the habeas petition now before the court. The amended petition alleged fifty claims of constitutional error and requested a hearing to present evidence. The district court denied relief and the request for an evidentiary hearing. It divided his claims into two groups: claims which had been properly presented in state court and those which had not. The first group was considered on the merits and rejected. The claims not properly presented in state court were held to be procedurally defaulted and therefore barred.

Among the constitutional claims the district court rejected on the merits are thirteen which alleged ineffective assistance of trial counsel. Amrine alleges his counsel was ineffective because of inadequate investigation and cross examination of Randy Ferguson, Terry Russell and Jerry Poe and because of failure to call an additional inmate witness, Ronnie Ross. Amrine also alleges trial counsel had a conflict of interest and failed to investigate the blood evidence or to object to jury instructions, the prosecutor's improper closing argument, and Amrine's appearance in front of the venire panel in shackles and leg restraints. Amrine argues counsel was ineffective during the penalty phase for failing to call any witnesses other than Amrine and for not objecting to evidence about the deterrent effect of the death penalty. ⁷

A variety of constitutional challenges to the guilt phase of Amrine's trial are raised in the claims held to be defaulted. Amrine alleges that his rights to due process were violated because there was insufficient evidence to support his conviction, especially in light of the recantations of Ferguson and Russell, and the state court did not set aside the verdict or order a new trial. Amrine contends his counsel was ineffective at trial for advising him in front of the jury to exercise his fifth amendment right against self incrimination, for failing to object to the appearance of defense witnesses in leg shackles and restraints or to a jury selection process which led to an all white jury, and for not submitting appropriate jury instructions. Amrine also claims that his rights under the fifth, sixth, eighth, and fourteenth amendments were violated because the jury was improperly selected and instructed, the prosecutor engaged in improper argument, and he was denied his right to confront witnesses by the prosecutor's refusal to provide the name of the person who had provided information that focused the investigation on him.

There are also defaulted claims attacking the constitutionality of the penalty phase of his trial. Amrine alleges his trial counsel was ineffective for failing to develop mitigating evidence of brain injury, to request a mental evaluation, and to object to unsubstantiated testimony regarding uncharged misconduct. He also alleges that the jury instructions and the prosecutor's closing arguments violated the eighth and fourteenth amendments, that he was denied access to necessary expert witnesses in violation of the fifth, sixth, eighth and fourteenth amendments, that testimony of uncharged misconduct violated his eighth and fourteenth amendment rights, and that the Missouri death penalty scheme is cruel and unusual.

The district court declined to reach...