Battle v. Armontrout, 88-2043 C (5).

Decision Date01 March 1993
Docket NumberNo. 88-2043 C (5).,88-2043 C (5).
Citation814 F. Supp. 1412
PartiesThomas Henry BATTLE, Petitioner, v. William ARMONTROUT, Respondent.
CourtU.S. District Court — Eastern District of Missouri

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Richard A. Ahrens, Lewis and Rice, St. Louis, MO, for petitioner.

David Hansen, Millie E. Aulbur, Asst. Atty. Gen., Jefferson City, MO, for respondent.

MEMORANDUM AND ORDER

LIMBAUGH, District Judge.

This matter is before the Court to consider Thomas Battle's petition for Habeas Corpus. A jury in the Circuit Court of the City of St. Louis convicted petitioner of capital murder and sentenced him to death. The Missouri Supreme Court affirmed the judgment and conviction on direct appeal. State v. Battle, 661 S.W.2d 487 (Mo. banc 1983). Thereafter, the sentencing court denied petitioner's Rule 27.26 motion after an evidentiary hearing. That denial was affirmed in Battle v. State, 745 S.W.2d 730 (Mo.App.1987). On October 17, 1988, petitioner presented this writ of habeas corpus. The Supreme Court of Missouri issued a warrant of execution setting an execution date of 12:01 a.m. on Tuesday, October 25, 1988. The execution date was stayed on October 18, 1988 until further order of this Court. On March 14, 1989, this Court denied petitioner's petition for writ of habeas corpus.

On June 5, 1990, the Eighth Circuit vacated the judgment of this Court and remanded for appointment of counsel and reconsideration of Battle's petition. Accordingly, this Court appointed petitioner counsel and permitted petitioner's appointed counsel to file an amended petition. Petitioner simultaneously filed an amended petition in this Court and returned to the state court to present by Rule 91 habeas corpus certain claims that were not exhausted. On October 25, 1991, the Missouri Supreme Court ruled that the new claims for relief were procedurally barred.

Petitioner has alleged six grounds for error in his trial which support his amended petition for habeas corpus.1 The circumstances of the crime for which Mr. Battle was found guilty are discussed in gruesome detail in the Missouri Supreme Court decision, State v. Battle, supra, and will not be reiterated in this memorandum. The grounds that Mr. Battle has alleged basically fall into five categories:

1. Ineffective assistance of counsel;
2. Jury selection error;
3. Error in the instructions;
4. Improper confessions; and
5. The propriety of the death sentence as it applies to this petitioner.
I. INEFFECTIVE ASSISTANCE OF COUNSEL DURING GUILT PHASE
A. Ineffective Assistance of Counsel Mark Fredman for Failure to Investigate Charles Hall

Petitioner contends that his counsel at trial was ineffective in failing to call Charles Hall as a witness who, the police report indicates, made statements suggesting that Elroy Preston was involved in the murder. Petitioner's counsel argued at trial that Mr. Preston had coerced petitioner to aid in the burglary of the victim, but that petitioner had left when the victim awoke during the burglary. The State argued, however, that it was petitioner who killed the victim, and that Mr. Preston was not involved. Petitioner maintains that Mr. Hall was an available and disinterested witness who could have supported petitioner's defense.

At the outset, it is important to note that the appellate court reviewing petitioner's Rule 27.26 motion declined to address this ground because petitioner had failed to raise the issue in his 27.26 motion, or his evidentiary hearing. Battle v. State, 745 S.W.2d 730, 734 (Mo.App.1988). Claims that are not raised in a Rule 27.26 motion, or presented or tried by the implicit consent of the parties in the evidentiary hearing, cannot be reviewed for the first time on appeal. Mallett v. State, 716 S.W.2d 902, 905 (Mo. App.1986). Because petitioner has failed to exhaust his state remedies on this issue, this Court also need not review this ground for habeas relief.

It is well settled that before a petitioner may present claims in a federal habeas corpus action, the petitioner must have presented the same legal theories and factual bases to the state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). Claims not presented in state court, or defaulted therein, are procedurally barred absent a showing of cause and prejudice. Sawyer v. Whitley, ___ U.S. ___, ___, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Stokes v. Armontrout, 893 F.2d 152, 155 (8th Cir.1989) stay denied, 495 U.S. 926, 110 S.Ct. 2162, 109 L.Ed.2d 492 (1990). In Sawyer v. Whitley, ___ U.S. ___, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), the Supreme Court considered the standard for determining whether a petitioner bringing a successive, abusive or defaulted federal habeas claim has shown he is "actually" innocent of the death penalty to which he has been sentenced so that the Court may reach the merits of the claim. The Court held "that to show `actual innocence' one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." 112 S.Ct. at 2517.

Under this standard, the Court must first look to the applicable state law. Under Missouri law, "any person who unlawfully, willfully, knowingly, deliberately and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder." Mo.Rev.Stat. § 565.001. Persons convicted of capital murder may be sentenced to death upon the recommendation of the jury following certain statutorily prescribed procedures. Mo.Rev.Stat. § 565.008; § 565.006; § 565.012. The jury may, and did, consider as an aggravating circumstance that "the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind." Mo. Rev.Stat. § 565.012.2(7). Without reiterating all of the gruesome details of the crime, the jury found that petitioner raped, brutally beat and ultimately stabbed to death an 80-year-old woman in her apartment. The fatal wound was effected by stabbing Miss Johnson through her eye socket with a butcher knife. Miss Johnson was still alive with the knife protruding from her face when petitioner and his cohort exited the apartment through the kitchen window. Miss Johnson died a few hours later. Petitioner had lived in the same neighborhood, and prior to Miss Johnson's death, petitioner had performed odd jobs for the elderly woman, who called him "Sweetboy." State v. Battle, 661 S.W.2d at 488-89.

The evidence allegedly kept from the jury due to alleged ineffective assistance of counsel fails to show that the petitioner is actually innocent of the death penalty to which he has been sentenced. This evidence brought forward to challenge the credibility of prosecution witnesses "will seldom, if ever make a clear and convincing showing that no reasonable juror would have believed the heart of the prosecution witness's account of petitioner's actions" as the Supreme Court noted in Sawyer v. Whitley, ___ U.S. at ___, 112 S.Ct. at 2524.

Therefore, the Court holds that petitioner has failed to show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under Missouri law.

Even if the Court were to address this issue, however, the Court would find that it does not allege a basis for habeas corpus relief. Petitioner claims ineffective assistance of counsel because his attorney failed to conduct an independent pretrial investigation of Mr. Hall, whose testimony could have aided in petitioner's defense.

The Sixth Amendment guarantees the right to effective assistance of counsel. Convicted defendants frequently allege ineffective assistance of counsel to attack the validity of their convictions. Irrespective of its popularity, however, the movant must overcome a heavy burden in order to succeed on such a ground. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Not only must the movant prove his allegations by a preponderance of the evidence, but the heaviest burden arises from a presumption that counsel is competent. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Moreover, judicial scrutiny of counsel's performance must be highly deferential. Guinan v. State, 726 S.W.2d 754, 757 (Mo.App.1986).

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Sanders, 738 S.W.2d at 857. A defendant must satisfy both the performance and the prejudice prong in order to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, the Court need not consider both prongs. If a defendant fails to satisfy one prong, the other prong becomes irrelevant. Sanders, 738 S.W.2d at 857.

Missouri courts have consistently held that the selection of witnesses, like the production of evidence, is a question of trial strategy. Furthermore, the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel. Bolder v. State, 712 S.W.2d 692, 694 (Mo.App.1986); Holzer v. State, 680 S.W.2d 764, 767 (Mo. App.1984); Franklin v. State, 655 S.W.2d 561, 565 (Mo.App.1983); Decker v. State, 623 S.W.2d 563, 565 (Mo.App.1981). If counsel provides a reasonable basis for his strategy, such basis cannot render the assistance incompetent or ineffective. Guinan v. State, 726 S.W.2d 754, 758 (Mo.App.1986).

Petitioner has...

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