Blair v. Delo
| Decision Date | 20 July 1993 |
| Docket Number | No. 93-2824,93-2824 |
| Citation | 999 F.2d 1219 |
| Parties | Walter J. BLAIR, Appellant, v. Paul K. DELO, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON and HEANEY, Senior Circuit Judges.
Walter Blair moves for a stay of execution following the entry of the district court order dismissing his third petition for writ of habeas corpus and the state opposes. We grant the stay.
The district court, while dismissing Blair's petition for writ of habeas corpus, issued a certificate of probable cause. The Supreme court has set out standards in Barefoot v. Estelle, 463 U.S. 880, 894, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983), that a court of appeals may dismiss an appeal on motion for stay which is "frivolous and entirely without merit." We may take such action only if the petitioner's claim is squarely foreclosed by statute, rule or authoritative court decision, or is lacking any factual basis in the record of the case. With respect to successive petitions, such as Blair's, "granting of the stay should reflect the presence of substantial grounds upon which relief might be granted." Id. at 895, 103 S.Ct. at 3396.
The entire question is whether Blair's third petition states a claim that survives the Supreme court's decision in Herrera v. Collins, --- U.S. ----, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In Herrera there were three separate opinions concurring in the judgment, and there was also a dissent. While we question whether Blair's claim survives Herrera, because of the differing views of the several Justices, we cannot conclude without more detailed study that Blair's claim is "frivolous and entirely without merit" or that there is not a substantial question upon which relief might be granted.
Accordingly, we grant a temporary stay of execution and will hear argument on the stay and the merits of the appeal during the week of August 23, 1993.
I concur fully in this court's order of July 20, 1993. I write separately to re-emphasize my view that Walter J. Blair did not receive a fair trial and to make clear that the newly discovered evidence persuasively demonstrates that Blair is actually innocent of capital murder and that Katherine Jo Allen was murdered by another.
This is the third time that I have heard this capital murder case. When it was first here, I dissented from an opinion upholding Blair's conviction for capital murder. I did so because I believed that (1) the prosecutor knowingly introduced false testimony at trial; (2) the trial court erred by not giving the jury an instruction on first-degree murder as an alternative to the charge of capital murder; and (3) Blair's sentencing hearing at which the death penalty was directed was compromised by the prosecutor's inflammatory closing argument. He told the jury that they should sentence Blair to death because it was cheaper to kill him than to incarcerate him, and he emphasized to the all-white jury that they should choose between the "attractive" sympathetic victim and "this black man." See Blair v. Armontrout, 916 F.2d 1310, 1333-52 (8th Cir.1990) (Heaney, J., concurring and dissenting), cert. denied, --- U.S. ----, 112 S.Ct. 89, 116 L.Ed.2d 62 (1991).
When the case came before the court the second time on a claim that the state had systematically excluded black men and women from the jury, I again dissented, taking the position that Blair's conviction should be set aside because the state in fact had a long record of systematically excluding blacks from petit juries in the judicial district in which Blair was tried and that it had systematically excluded blacks in Blair's trial. See Blair v. Armontrout, 976 F.2d 1130, 1142-48 (8th Cir.1992) (Heaney, J., concurring and dissenting), cert. denied, --- U.S. ----, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993).
We now have a new petition, supported by several sworn affidavits, alleging in substance that newly discovered evidence establishes beyond doubt that Blair is actually innocent of capital murder. Blair initially raised this claim in state court. It was denied by the Missouri Supreme Court without hearing or comment for the reason that in Missouri a claim of newly discovered evidence must be made in a motion for new trial within fifteen to twenty-five days of the verdict and that a claim of newly discovered evidence is not cognizable in a state habeas corpus proceeding. The Missouri rule thus effectively precludes an actually innocent defendant from raising a claim of innocence in state court. Thus, if there is to be a judicial...
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Delo v. Blair
...no conceivable need for the Court of Appeals to engage in "more detailed study" over the next five weeks to resolve this claim. See 999 F. 2d 1219 (CA8 1993). It is an abuse of discretion for a federal court to interfere with the orderly process of a State's criminal justice system in a cas......