Bolder v. Armontrout

• Decision Date: 26 April 1989
• Docket Number: No. 86-4539-CV-C-5.,86-4539-CV-C-5.
• Citation: 713 F. Supp. 1558
• Parties: Martsay BOLDER, Plaintiff, v. Bill ARMONTROUT, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

713 F. Supp. 1558

Martsay BOLDER, Plaintiff, v. Bill ARMONTROUT, et al., Defendants.

No. 86-4539-CV-C-5.

United States District Court, W.D. Missouri, Central Division.

April 26, 1989.

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Gardiner B. Davis, Spencer, Fane, Britt & Browne, Kansas City, Mo., for plaintiff.

Stephen Hawke, Office of Atty. Gen., Jefferson City, Mo., for defendants.

ORDER

SCOTT O. WRIGHT, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Martsay Bolder, an inmate in custody at the Missouri State Penitentiary, Jefferson City, Missouri. The petitioner seeks to vacate his sentence of death entered after a conviction for capital murder. The conviction and sentence were affirmed on direct appeal to the Missouri Supreme Court. 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). Petitioner subsequently filed a Missouri Rule 27.26 petition in Missouri Circuit Court. This request for post-conviction relief was denied. The denial was affirmed by the Missouri Court of Appeals. Bolder v. State, 712 S.W.2d 692 (Mo.Ct.App.1986).

The instant petition contains numerous claims. The Court will address these contentions seriatim. The facts relevant to each claim will be outlined as necessary. For the reasons set forth in this order, said petition is GRANTED and the sentence of death is VACATED.

I. Standard of Review

The standard of review for habeas corpus petitions filed by prisoners in state custody is set out in 28 U.S.C. § 2254(d). A written determination after a hearing on the merits of a factual issue, made by a state trial or appellate court of competent jurisdiction, is presumed to be correct unless one of the conditions set forth in 28 U.S.C. § 2254(d)(1)-(7) is found to exist. If no such condition exists, or unless the state court determination is "not fairly supported by the record," 28 U.S.C. § 2254(d)(8), the petitioner must establish by convincing evidence that the factual determination by the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

This presumption of correctness does not apply to legal findings or to mixed questions of law and fact. Factual issues involve "what are termed basic, primary, or historical facts: facts `in the sense of recital of external events and the credibility of their narrators ...'" Townsend v. Sain, 372 U.S. 293, 310 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953)). Mixed questions of law and fact, however, involve "the application of legal principles to the historical facts of the case." Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). "Where the ascertainment of the historical facts does not dispose of the claim but calls for the interpretation of the legal significance of such facts ... the district judge must exercise his own judgment on this blend of facts and legal values. Thus, so-called mixed questions of the application of constitutional principles to the facts is found to leave the duty of adjudication with the federal judge." Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953).

II. Ineffective Assistance of Trial Counsel

Petitioner contends that his counsel's performance at the sentencing phase of his trial was constitutionally deficient in that counsel failed to offer certain mitigating evidence during the sentencing phase of that trial, and failed to investigate further mitigating evidence. Specifically, petitioner contends the following mitigating evidence was available but not utilized by his counsel: his age; evidence of his development problems during childhood; his mental and learning deficiencies; his good character, and the absence of any violent or aggressive tendencies as a child; his problems with the environment at the penitentiary; evidence contained in a psychiatric examination; evidence of the victim's character and reputation for violence and petitioner's fear of the victim; the failure to allow petitioner to take the witness stand to plea for mercy.

Petitioner claims counsel erred in not investigating the following evidence: testimony of family members or other witnesses who knew him and would have testified to the emotional trauma he suffered during childhood and his difficulty in adjusting to prison life; and testimony of character witnesses.

Respondent contests petitioner's allegation that his counsel's performance in the sentencing phase was constitutionally deficient and, further, asserts that the majority of petitioner's claims of ineffective assistance of counsel are procedurally barred.

A. Procedural Bar.

Respondent contends that there is an independent state procedural bar to review of the majority of petitioner's ineffective assistance of counsel claims. Some background is necessary to address this point.

Before the Missouri Rule 27.26 trial court, petitioner made a generic allegation that he received ineffective assistance of trial counsel at the penalty phase because trial counsel declined to call character witnesses on petitioner's behalf.¹ Petitioner's 27.26 motion was denied on all grounds.

On appeal of the Circuit Court's denial of his 27.26 petition, petitioner assigned the following error with respect to his ineffective assistance of counsel claim:

I.

THE TRIAL COURT ERRED IN DENYING APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE APPELLANT'S TRIAL COUNSEL'S PERFORMANCE DID NOT CONFORM TO THE STANDARD OF A REASONABLY COMPETENT ATTORNEY IN THE SAME CIRCUMSTANCES, THE ATTORNEY-CLIENT RELATIONSHIP WAS DESTROYED PRIOR TO TRIAL AND THE APPELLANT WAS PREJUDICED THEREBY IN THAT

A) TRIAL COUNSEL FAILED TO INVESTIGATE AND PRESENT EYEWITNESS TESTIMONY;

B) TRIAL COUNSEL FAILED TO PRESENT ANY EVIDENCE ON APPELLANT'S BEHALF DURING THE GUILT OR PENALTY PHASE;

C) TRIAL COUNSEL FAILED TO INVESTIGATE POSSIBLE MITIGATING FACTORS AND TO PRESENT TWO, OBVIOUS MITIGATING FACTORS; AND

D) APPELLANT REQUESTED THE WITHDRAWAL OF HIS COUNSEL AND THE APPOINTMENT OF NEW COUNSEL PRIOR TO, DURING AND AFTER TRIAL DUE TO HIS BELIEF THAT HIS COUNSEL'S REPRESENTATION WAS GROSSLY INADEQUATE.

Respondent's Ex. H-1 (Appellant's Brief, Statement and Argument) at 21.

The only two allegations of ineffectiveness the Missouri Court of Appeals addressed were the failure to submit any mitigating evidence during the penalty phase of the trial, and the failure to produce evidence that Bolder was of marginal intelligence and 21 years of age at the time of the murder. Bolder v. State, 712 S.W.2d 692, 695 (Mo.Ct.App.1986). The Missouri Court of Appeals did not find these arguments persuasive.

To properly present a claim of constitutional error to the state court, the petitioner must present both the legal and factual basis for the claim. It is clear from the assignment of error in petitioner's appeal of the denial of his Missouri Rule 27.26 motion that the legal basis for his claim (i.e., ineffective assistance of counsel) was asserted. However, the factual basis for these claims, at least with respect to the enumerated allegations of ineffective assistance present in the instant action but not specifically detailed in the 27.26 appeal, were not presented to the Missouri Court of Appeals.² Accordingly, it appears an independent state procedural bar to federal habeas corpus review of these issues exists. See Benson v. State, 611 S.W.2d 538, 541 (Mo.Ct.App.1980) (Missouri procedure requires constitutional claim to be presented "at each step of the judicial process"). See also Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.1988) cert. denied, ___ U.S. ___, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989); Walker v. Lockhart, 852 F.2d 379, 381 (8th Cir.1988) cert. denied, ___ U.S. ___, 109 S.Ct. 1551, 103 L.Ed.2d 854 (1989).

Petitioner nonetheless asks this Court to reach the merits of these issues irrespective of the independent state bar to relief. For the reasons to follow, the Court will entertain these issues.

The traditional method of circumventing a state procedural bar is to demonstrate "cause" for the failure to raise the issue and actual "prejudice" from its omission. Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 1776, 100 L.Ed.2d 249 (1988); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). In the case sub judice, petitioner contends his counsel was ineffective during the Missouri post-conviction stage because she failed to raise the issues presented in the instant petition. Ineffective assistance of counsel satisfies the cause prong of the Wainwright test. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986).³ The Court agrees that petitioner's post-conviction counsel was ineffective with respect to the omission of mitigating evidence in that she did not present this evidence to the state court as proof of trial counsel's ineffectiveness. The hearing on the instant petition reveals such evidence existed at the time of Bolder's trial. If petitioner's trial counsel is to be deemed ineffective for failing to raise such evidence, appellate counsel is no less so.

Because the Court will detail the aspects of petitioner's representation it feels were inadequate in the passages to follow, it would be redundant to exhaustively support a finding of prejudice at this point. In short, it is this Court's belief that the failure to raise particular evidence in mitigation of petitioner's sentence undermined the reliability of the sentencing function so as to render its result questionable. Needless to say, a sentence of death rendered after a questionable sentencing proceeding sufficiently demonstrates prejudice.

One other factor supports the circumvention of the procedural bar in this case; this petition asks for review of the constitutionality of the procedures utilized to...