Andre Cole v. Roper

• Citation: 623 F.3d 1183
• Decision Date: 14 January 2011
• Docket Number: No. 09-1213.,09-1213.
• Parties: Andre COLE, Appellant v. Donald P. ROPER; Jeremiah W. Nixon, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

623 F.3d 1183

Andre COLE, Appellant

v.Donald P. ROPER; Jeremiah W. Nixon, Appellees.

No. 09-1213.

United States Court of Appeals,Eighth Circuit.

Submitted: April 12, 2010.

Filed: Nov. 5, 2010.

Rehearing and Rehearing En Banc Denied Jan. 14, 2011.

COPYRIGHT MATERIAL OMITTED.

Joseph W. Luby, Public Interest Litigation Clinic, Kansas City, MO, argued (Terri L. Backhus, on the brief), for appellant.

Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.

Before BYE, BEAM, and GRUENDER, Circuit Judges.

BEAM, Circuit Judge.

Andre Cole appeals the district court's denial of his 28 U.S.C. § 2254 petition for habeas corpus. The district court ¹ certified nine claims for appeal, and upon review of these claims, we affirm the denial of relief.

I. BACKGROUND

The evidence at Cole's trial in Missouri state court in 2001 reveals that Cole and his wife, Terri, divorced in 1995 after eleven years of marriage. Cole was ordered to pay child support for the care of the couple's two children, but his periodic failure to make payments resulted in an arrearage of nearly $3,000. The record indicates that Cole and Terri also had disputes involving visitation with the children, and in August 1998, Cole was upset about his alleged lack of visitation with his two sons. There is also evidence he was upset about his wages being garnished to cover the child support arrearage. On the evening of August 21, 1998, Cole forced his way into Terri's house by throwing a tire iron ² through a glass door leading to the dining room from the patio. Anthony Curtis, who was visiting Terri, confronted Cole and asked him to leave. Cole stabbed and slashed Curtis more than twenty times, the fatal blow being an eight-inch deep knife wound to Curtis's back. Cole then assaulted Terri, stabbing her repeatedly in the stomach, breasts, back, arms, and her hands when she attempted to defend herself. Terri survived and testified at trial. After the attack, Cole fled the state but after a little over a month, returned to St. Louis and surrendered to the police. DNA analysis confirmed the presence of both victims' blood on the knife and the presence of Cole's blood on the deck of Terri's home, the backyard fence, and in the street where Cole's car had been parked. At trial, Cole presented the theory that, although he did break into Terri's home with the jack, he did not bring a weapon, and actually was attacked by a knife-wielding Curtis, who was much larger than Cole. Cole's testimony at trial also insinuated that Terri delivered the fatal wounds to Curtis in an attempt to keep Curtis from attacking Cole.

A jury in St. Louis County, Missouri, convicted Cole of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. He was sentenced to death for Curtis's murder and given three life terms of imprisonment for the assault and armed criminal action and thirty years for the burglary. The Missouri Supreme Court upheld Cole's convictions and sentences on direct appeal. State v. Cole, 71 S.W.3d 163 (Mo.2002) ( Cole I). Cole's Rule 29.15 motion for postconviction relief, in which he raised numerous claims of ineffective assistance of counsel, was also denied by the trial court, and the denial was affirmed on appeal. Cole v. State, 152 S.W.3d 267 (Mo.2004) ( Cole II ).

In his timely petition for habeas corpus relief, Cole raised numerous claims. The district court denied the petition, without an evidentiary hearing, and the following claims are certified for appeal: (1) a Batson claim regarding black veniremember Vernard Chambers, who was struck by the prosecution (Claim 4); (2) claims for ineffective assistance of counsel based on counsel's failure to investigate Cole's social and medical history, specifically on the days leading up to the crime (Claims 10 and 11); (3) a claim for ineffective assistance of counsel based upon counsel's failure to present evidence during the penalty phase about Cole's exemplary prison conduct while awaiting trial (Claim 12); (4) due process claims based upon Cole's allegedly visible leg restraint during the guilt and penalty phase trials (Claims 7 and 16); (5) claims for prosecutorial misconduct during closing argument in both the guilt and penalty phase (Claims 2 and 13); and (6) the cumulative effect of the foregoing errors (Claim 20).

II. DISCUSSION

In this habeas corpus action, we review the district court's conclusions of law de novo and its factual findings for clear error. McGehee v. Norris, 588 F.3d 1185, 1193 (8th Cir.2009). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may not grant relief for claims adjudicated on the merits by the Missouri state courts unless the adjudication was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court, or was an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). A state court decision may be incorrect, yet still not unreasonable, and we will grant relief only if the state court decision is both incorrect and unreasonable. McGehee, 588 F.3d at 1193. Further, “a determination of a factual issue made by a State court shall be presumed to be correct” in a federal habeas proceeding. 28 U.S.C. § 2254(e)(1).

A. Claim 4: Striking of Veniremember Chambers

Cole argues that the prosecutor's use of a peremptory challenge to strike veniremember Chambers from the jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). During Cole's trial, after defense counsel made the Batson challenge to the strike of veniremember Chambers, the prosecutor offered the following reasons for why the strike was race-neutral:

[t]he State's primary concern with Mr. Chambers is that he is divorced. And because of the facts and the dynamics of [sic] case-the record should reflect the State expects that the evidence that's introduced will show that Mr. Cole was divorced from his wife Terri Cole. There was a great deal of animosity between the two of them. I'm concerned that someone who is similarly situated to Mr. Cole in that he's divorced may be sympathetic to Mr. Cole and may not be sympathetic to Terri Cole, the victim in this case.... In addition to that, Your Honor, with regard to the death penalty he stated that he was not opposed to the death penalty, but not sure if he could do it or not. Furthermore, he has a cousin doing life in prison for a murder in Michigan.

Trial Transcript (Tr.) at 569-70. Defense counsel responded that there was a white male paying child support and a different white male who was never married, neither of whom was struck by the state. She also generally objected to Chambers being struck on the basis of his divorced status. ³ The trial court summarily found the state's reasons race-neutral and denied the defense's Batson challenge.

The Missouri Supreme Court adjudicated this claim on the merits and found that the prosecutor's reasons were race-neutral, not pretextual and noted that the “similarly situated” jurors proposed by the defense were not actually divorced, but one was simply subject to a child support order, though not married. The court concluded that these comparison jurors were not similarly situated and that Chambers' status as divorced, his somewhat equivocal answers about the death penalty, and having a cousin with a murder conviction were all reasons for the prosecution's use of the strike that did not violate Batson. Cole I, 71 S.W.3d at 173.

In Batson, the Court held that the Equal Protection Clause of the United States Constitution prohibits the use of peremptory challenges to exclude jurors on the basis of race. Batson, 476 U.S. at 89, 106 S.Ct. 1712. The Court uses a three-step process for evaluating whether the use of a peremptory challenge was based on purposeful discrimination. First, the defendant must make a prima facie case of racial discrimination. Second, after such showing is made, the state must suggest a race-neutral explanation for the use of the strike. Third, after a race-neutral reason is offered, the trial court must decide whether the defendant has shown purposeful discrimination. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Within this framework, the defendant may rely on “all of the circumstances that bear upon the issue of racial animosity” to show purposeful discrimination. Id. at 478, 128 S.Ct. 1203. Whether a peremptory strike was motivated by race is ultimately a question of fact, Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), and a state court finding is accorded a presumption of correctness under AEDPA, 28 U.S.C. § 2254(e)(1). Thus, a Missouri state court's determination regarding the prosecution's intent may be set aside only if Cole rebuts “the presumption of correctness by clear and convincing evidence.” Id.

Cole complains that the trial court did not make proper findings or do an adequate Batson evaluation by simply saying the reasons were race-neutral without saying they were “true.” His argument, as we understand it, is essentially that the trial court did not complete step three of the Batson analysis. He also argues that the state court adjudications violate the recent Supreme Court pronouncements in Snyder. While the trial court's Batson analysis may have been lacking, in addition to considering (and giving deference to) the trial court's Batson's findings, we also must consider the Missouri Supreme Court's analysis. Smulls v. Roper, 535 F.3d 853, 862 (8th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 1905, 173 L.Ed.2d 1061 (2009).

We find that the Missouri Supreme Court's analysis of Cole's Batson claim was not contrary to, nor an unreasonable application of, Supreme Court precedent. Its factual findings regarding the three proffered similarly situated jurors are...