Bolder v. Armontrout

• Decision Date: 12 December 1990
• Docket Number: Nos. 89-2323,89-2324,s. 89-2323
• Citation: 921 F.2d 1359
• Parties: Martsay BOLDER, Appellee/Cross-Appellant, v. Bill ARMONTROUT, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1359

921 F.2d 1359

Martsay BOLDER, Appellee/Cross-Appellant, v. Bill ARMONTROUT, Appellant/Cross-Appellee.

Nos. 89-2323, 89-2324.

United States Court of Appeals Eighth Circuit.

Submitted April 9, 1990.

Decided Dec. 12, 1990.

Steven Hawke, Jefferson City, Mo., for appellee/cross-appellant.

Gardiner Davis, Kansas City, Mo., for appellant/cross-appellee.

Before LAY, Chief Judge, and MAGILL and BEAM, Circuit Judges.

BEAM, Circuit Judge.

The district court found that Martsay Bolder's trial counsel was constitutionally ineffective during the sentencing phase of his capital murder trial in Missouri state court and granted his petition for writ of habeas corpus. This vacated his death sentence. Armontrout appeals, asserting that most of Bolder's federal claims are procedurally barred and that Bolder's underlying ineffectiveness claim is without merit. Bolder cross-appeals the district court's adverse holdings on a multitude of other issues. We agree that several of Bolder's claims are procedurally barred and that his cross-appeal is without merit and reverse.

I. BACKGROUND

Bolder was indicted for and convicted of the murder of Theron King, a fellow inmate in the Missouri State Penitentiary. Bolder's trial counsel, Julian Ossman, in accordance with Bolder's instructions, did not contact members of Bolder's family in search of mitigating sentencing evidence and did not investigate to determine whether any other individuals could have provided mitigating background information. Ossman presented no mitigating evidence during the penalty phase of the bifurcated trial because he believed that none existed. Instead, he relied on his argument to convince the jury that the death penalty was not appropriate. The jury disagreed with Ossman and sentenced Bolder to death.

The Missouri Supreme Court affirmed the judgment and sentence on direct appeal. State v. Bolder, 635 S.W.2d 673 (Mo.1982) (en banc), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983) (Bolder I ). Bolder twice sought to have his death sentence vacated in post-conviction actions in state courts under Missouri Supreme Court Rule 27.26. ¹ The first petition was denied following an evidentiary hearing, and the denial was affirmed by the Missouri Court of Appeals. Bolder v. State, 712 S.W.2d 692 (Mo.Ct.App.1986) (Bolder II ). Bolder's second petition was denied as a successive petition without an evidentiary hearing. This denial was affirmed by the Missouri Supreme Court. Bolder v. State, 769 S.W.2d 84 (Mo.1989) (en banc) (Bolder III ).

In his first 27.26 petition, Bolder asserted that his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution had been violated. In addition to his allegation that Ossman failed to investigate for mitigating evidence, Bolder claimed that Ossman failed to interview four potential inmate witnesses, to call them at trial, and to present any mitigating evidence during the sentencing phase of his trial, including evidence of his borderline intelligence and his tender age at the time of the murder.

As indicated, the Missouri circuit court held an evidentiary hearing. Bolder testified and called four other witnesses--his sister and three individuals who were inmates at the Missouri State Penitentiary at the time of the murder. Following the hearing, the court found that Bolder had instructed Ossman not to contact Bolder's family and had not suggested any witnesses, character or otherwise, to Ossman. The court found that Ossman interviewed the four inmates and, after consulting with Bolder, decided not to call them as witnesses. The court also found, based on the report of a psychiatrist, that Bolder was not suffering from a mental disease or defect and was able to conform his actions to the law. Thus, the court concluded that Bolder's counsel provided constitutionally adequate assistance and denied post-conviction relief.

The Missouri Court of Appeals affirmed. Bolder II, 712 S.W.2d 692. The appellate court held that Ossman made a reasonable decision, after talking with each potential inmate witness and with Bolder, not to call the inmates as witnesses. The court held that because Bolder's age was apparent to the jury, Bolder was not prejudiced by Ossman's failure to present age as a mitigating factor and that Bolder had failed to indicate how his borderline intelligence constituted a mitigating factor. Finally, the court held that Ossman's failure to present mitigating evidence was due to a lack of such information rather than deficient performance.

As also indicated, Bolder's second 27.26 motion was dismissed as successive, and the dismissal was affirmed on appeal. Bolder III, 769 S.W.2d at 86, 88. In his second petition, Bolder listed nine witnesses whom he alleged Ossman should have contacted and called as character witnesses during his trial. However, Bolder failed to allege anything about the nature of the evidence these witnesses could presumably have provided, or to allege that Ossman knew, or could have discovered, that these witnesses existed. Thus, the Missouri Supreme Court held that the allegations in this second 27.26 petition were insufficient as a matter of law. The court also held that Bolder had failed to establish that these allegations could not have been raised in his first petition.

Following his unsuccessful attempts to obtain relief in state court, Bolder filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254 (1988), in federal district court raising some of the same issues addressed in the state courts and some issues that were not properly presented to the state courts. Bolder v. Armontrout, 713 F.Supp. 1558, 1562 (W.D.Mo.1989). The district court held an evidentiary hearing at which Bolder called several witnesses, including his childhood minister, Y-pal, ² and a family friend. Bolder's ineffective assistance claim in federal court focused on Ossman's failure to find, and call these particular background witnesses who testified that Bolder had a troubled childhood. The district court, after determining, without significant discussion, that cause and prejudice excused Bolder's improper presentation of this claim in state court, found that Ossman's failure to find and call these witnesses rendered his performance constitutionally inadequate.

Armontrout appeals the court's findings that Ossman's performance was inadequate and that Bolder demonstrated cause and prejudice sufficient to overcome the state procedural default. Bolder cross-appeals, asserting, among other claims, that the district court erred in finding that his confession was voluntary and that the penalty phase jury instructions did not violate due process.

II. DISCUSSION

In a habeas corpus action, the state court's factual findings are entitled to a presumption of correctness. The district court, and this court, must accept those findings that are supported by the record. ³ 28 U.S.C. Sec. 2254(d); Laws v. Armontrout, 863 F.2d 1377, 1386 & n. 9 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). The presumption of correctness, however, applies only to factual findings. The state courts' conclusions that Bolder's counsel was not constitutionally inadequate are reviewed as mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984).

A. Ineffective assistance of counsel

Under Strickland, to obtain relief on the basis of ineffective assistance of trial counsel, Bolder must

show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Our review of counsel's performance is highly deferential, and we presume that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. Regarding prejudice, the Court stated: "When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. at 2069.

1. Failure to investigate

In his first 27.26 petition, Bolder alleged that his counsel was ineffective in failing to interview or call character witnesses and inmate witnesses. At the hearing, Bolder presented no evidence, except the testimony of his sister, ⁴ to establish the existence of mitigating evidence. As indicated, the state court denied relief. On appeal, Bolder asserted the same legal arguments but, again, adduced no factual support.

In the federal habeas action, the district court found that Bolder's claim that Ossman failed to investigate and to present mitigating evidence was procedurally barred. The court held that Bolder's failure, on appeal in state court, to provide factual support for his claim constituted a procedural default that prevented federal court review unless Bolder demonstrated cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The court found, however, that the ineffectiveness of Bolder's post-conviction counsel excused the default and that Bolder suffered prejudice. See Murray v. Carrier, ...