Blair v. Armontrout
Decision Date | 03 November 1992 |
Docket Number | No. 92-1734,92-1734 |
Citation | 976 F.2d 1130 |
Parties | Walter J. BLAIR, Appellant, v. Bill ARMONTROUT, Appellee. Walter J. BLAIR, Appellant, v. William ARMONTROUT; William Webster, Appellees. |
Court | U.S. Court of Appeals — Eighth Circuit |
Kent E. Gipson, Kansas City, Mo., argued, for appellant.
Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., argued, for appellee.
Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON and HEANEY, Senior Circuit Judges.
Walter J. Blair appeals from an order of the district court 1 denying habeas corpus relief under 28 U.S.C. § 2254 (1988), and his motion for relief from judgment under Fed.R.Civ.P. 60(b)(6). Blair urges five grounds on appeal, but we will devote extended discussion to only one issue: Blair's claim that striking African Americans from his jury panel violated his right to equal protection of the law guaranteed by the Fourteenth Amendment under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). 2 We affirm the district court's denial of the writ and Blair's 60(b)(6) motion.
Blair was convicted of capital murder as a result of the death of Kathy Jo Allen, who was scheduled to testify as the victim in the rape trial of Larry Jackson. The Missouri Supreme Court affirmed Blair's conviction and sentence of death. 3 State v. Blair, 638 S.W.2d 739 (Mo.1982) (en banc), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983). Blair then filed a motion for post-conviction relief under Mo.Sup.Ct. Rule 27.26. 4 After holding a hearing, the circuit court denied Blair relief, and the Missouri Court of Appeals for the Western District of Missouri affirmed that judgment. Blair v. State, 683 S.W.2d 269 (Mo.Ct.App.1984). Blair then petitioned for habeas corpus relief under 28 U.S.C. § 2254. The district court denied relief, Blair v. Armontrout, 643 F.Supp. 785 (W.D.Mo.1986), and we affirmed. Blair v. Armontrout, 916 F.2d 1310 (8th Cir.1990). We denied Blair's petition for rehearing, and the Supreme Court denied Blair's petition for certiorari. --- U.S. ----, 112 S.Ct. 89, 116 L.Ed.2d 62 (1991).
While Blair's first appeal was pending before this court, Blair filed a pro se petition for writ of habeas corpus. Blair sought review of his exhausted constitutional claims which he alleged his appointed appellate counsel omitted from his habeas petition without his consent. The district court ordered that this second habeas petition be held in abeyance until this court rendered its decision. Blair v. Armontrout, No. 87-0302-CV-W-5, Order (W.D.Mo. July 2, 1987). After this court affirmed the district court's denial of Blair's first habeas petition, Blair moved for a consolidation of claims and for relief from the district court's judgment under Fed.R.Civ.P. 60(b)(6). The district court conducted a hearing and consolidated the two habeas petitions. Blair presented six grounds for relief. He claimed that: (1) the Kansas City, Missouri, Police Department obtained inculpatory statements from him after his arrest in violation of his Fifth, Sixth, and Fourteenth Amendment rights; (2) the trial court's failure to instruct the jury on the lesser-included offense of first-degree felony murder, and the Missouri Supreme Court's denial of this claim on direct appeal violated his Eighth and Fourteenth Amendment rights; and (3) the State failed to disclose to the jury a claimed promise of leniency to witness Ernest Jones on pending charges, in violation of Blair's rights to due process and equal protection. The district court held that these three claims were successive because the claims were raised in Blair's first habeas petition, and thus, procedurally barred. Blair v. Armontrout, Nos. 85-0155-CV-W-5, 87-0302-CV-W-5, slip op. at 15-16 (W.D.Mo. Feb. 24, 1992).
The district court also considered Blair's remaining three claims that: (1) the prosecutor injected racial prejudice into his closing argument in violation of the Eighth and Fourteenth Amendments; (2) Blair received ineffective assistance of counsel because his trial counsel failed to interview and present the testimony of two witnesses, and (3) the prosecutor used peremptory challenges to strike all the remaining African Americans from the jury, in violation of Blair's right to equal protection guaranteed by the Fourteenth Amendment under Swain, 380 U.S. 202, 85 S.Ct. 824. The district court held that these three claims were abusive because they were not raised in Blair's first habeas petition. Slip op. at 6 (citing McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991)). The district court then considered whether Blair could avoid procedural default of these claims by showing cause for failing to include them in his earlier petition and prejudice from the exclusion of the claims, or by establishing a "fundamental miscarriage of justice." Slip op. at 10-14. With respect to each of these claims, the district court ruled that Blair failed to meet his burden of showing cause and prejudice or a fundamental miscarriage of justice. Id.
The district court denied habeas relief and first dissolved Blair's stay of execution, but later granted it. We denied the motion to set aside the stay, but expedited this appeal.
We first consider a procedural issue Blair raises. Blair argues that the district court erred by treating his Rule 60(b)(6) motion as the functional equivalent of a second petition for a writ of habeas corpus.
We reject Blair's argument. The district court followed our precedent in treating the motion as a second habeas petition. In Smith v. Armontrout, 888 F.2d 530 (8th Cir.1989), we held that a motion to remand was the functional equivalent of a second or successive habeas corpus petition, and that if such petition would be dismissed as abusive of the writ, the motion to remand should also be denied. Id. at 540. We made a similar ruling in Simmons v. Lockhart, 856 F.2d 1144, 1146 (8th Cir.1988). Likewise, the Eleventh Circuit has squarely held that claims like the ones advanced here should be raised in a successive petition for habeas corpus, rather than a Rule 60(b) motion. Lindsey v. Thigpen, 875 F.2d 1509, 1511-12, 1515 (11th Cir.1989). We also observe that the Supreme Court has treated litigation under 42 U.S.C. § 1983 (1988) as abusive and unworthy of a stay of execution. Gomez v. United States District Court, --- U.S. ----, ----, 112 S.Ct. 1652, 1653, 118 L.Ed.2d 293 (1992).
The district court did not err in treating the Rule 60(b) motion as the equivalent of a second petition for writ of habeas corpus.
Blair argues that the district court erred in concluding that his claims regarding the failure to instruct on the lesser-included offense of first-degree felony murder and the failure to disclose critical impeaching information concerning witness Ernest Jones were successive claims and, therefore, procedurally barred.
Blair is entitled to a second review of successive claims if the "ends of justice" so require. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). Blair contends that he qualifies for a second review of these claims under this exception. Specifically, he contends that this court should re-examine its previous opinion with respect to his jury instruction claim because subsequent federal and state court decisions have "completely undermined" the reasoning this court used in denying him relief on this claim. He argues that the failure to instruct on the lesser-included offense violates his due process rights under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and that the Missouri Supreme Court's "capricious and result-oriented" disposition of this issue violated his right to equal protection. Along similar lines, he says that this court should revisit his claim that the prosecution knowingly used the perjured testimony of witness Jones because this court did not consider State v. Patterson, 618 S.W.2d 664 (Mo.1981) (en banc), in its earlier decision.
The district court refused to consider these two claims, ruling that the claims were successive, and therefore, procedurally barred. 5 Slip op. at 15-16. The district court concluded that the "ends of justice" did not require that these claims be reviewed again because Blair failed to make a "colorable showing of factual innocence" under Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Slip op. at 8, 15-16. A plurality of the Supreme Court explained in Kuhlmann that the "ends of justice" permit federal courts to examine the merits of a successive claim "only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." 477 U.S. at 454, 106 S.Ct. at 2627. The district court rejected Blair's argument that the plurality opinion in Kuhlmann should not be applied. Slip op. at 15.
The Supreme Court recently ended all questions about the status of the plurality opinion in Kuhlmann. The Supreme Court held in Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), that when there has been no showing of cause and prejudice in successive, abusive, or procedurally defaulted habeas claims, there must be a showing of actual innocence. Id. --- U.S. at ---- - ----, 112 S.Ct. at 2517-19. The Court explained 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." Id. --- U.S. at ----, 112 S.Ct. at 2517.
Blair now argues that Jones' testimony, coupled with the instruction error, establishes a colorable claim of factual innocence. This, however, is simply a reargument of what this court rejected in Blair's habeas appeal. 916 F.2d at 1316-20, 1325-31. We do not...
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