Boliek v. Delo

• Decision Date: 13 December 1995
• Docket Number: No. 89-4076-CV-C-5.,89-4076-CV-C-5.
• Citation: 912 F. Supp. 1199
• Parties: William T. BOLIEK, Petitioner, v. Paul DELO, Respondent.
• Court: U.S. District Court — Western District of Missouri

912 F. Supp. 1199

William T. BOLIEK, Petitioner, v. Paul DELO, Respondent.

No. 89-4076-CV-C-5.

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

December 13, 1995.

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David J. DeSimone, DeSimone & Pearson, Kansas City, MO, for petitioner.

Stephen D. Hawke, Attorney General's Office, Jefferson City, MO, for respondent.

ORDER

SCOTT O. WRIGHT, Senior District Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by William T. Boliek (petitioner), an inmate in custody at Potosi Correctional Center, Potosi, Missouri. The petitioner seeks to vacate his death sentence entered by the trial court after a conviction for capital murder. The conviction and sentence were affirmed on direct appeal. State v. Boliek, 706 S.W.2d 847 (Mo.1986) (en banc) cert. denied, 479 U.S. 903, 107 S.Ct. 302, 93 L.Ed.2d 276 (1986). Petitioner then filed a Missouri Rule 27.26 petition in Circuit Court. His request for post-conviction relief was denied, and the denial was affirmed on appeal. Boliek v. State, 755 S.W.2d 417 (Mo. Ct.App.1988) cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989).

Movant's petition contains thirteen claims. The facts relevant to each claim will be outlined as necessary. For the reasons set forth below, the petition for writ of habeas corpus is granted and the sentence of death is vacated.

Analysis

I. Mitigating Evidence

Petitioner contends that his trial counsel's failure to investigate and to introduce mitigating evidence during the penalty phase of the trial constituted ineffective assistance of counsel. Specifically, petitioner argues that the following mitigating evidence was available but was not utilized by his counsel: evidence of troubled and sickly childhood including influence of an alcoholic father, learning disabilities, problems with social development, history of psychological and psychiatric problems, severe alcohol and drug abuse, head trauma, lack of previous violent crimes, heavy drug and alcohol use before the victim's death, heavy stress before the victim's death, and a "siege" mentality shortly before the victim's death.

Respondent, however, argues that counsel's performance during the sentencing phase was not constitutionally deficient and further asserts that petitioner's claim is procedurally barred.

A. Procedural Bar

It is undisputed that petitioner did not raise this ineffective assistance of trial counsel claim before the Rule 27.26¹ trial court. As a result, the issue is procedurally barred. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A procedural bar, however, may be lifted if a petitioner who has failed to develop evidence in state court can show "cause and prejudice" for the failure. Parkus v. Delo, 33 F.3d 933, 938 (8th Cir.1994) (citations omitted). "The existence of cause for a procedural default `ordinarily turns on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). "A petitioner may demonstrate an objective impediment to compliance with a procedural rule by showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." Id. (internal citations and quotation marks omitted); McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).

A review of petitioner's Rule 27.26 proceeding reveals that interference by the 27.26 court provided an objective impediment to presentment of the ineffective assistance claim. Some background is necessary to address this point. On November 7, 1986, petitioner filed a pro se motion for relief under Rule 27.26. He raised one claim of ineffective assistance of trial counsel. Pursuant to Rule 27.26(h), the court appointed Mr. James W. Drese to represent petitioner in the 27.26 proceeding. Drese was a contract public defender who later surrendered his license to practice law upon order of the Missouri Supreme Court.² Although Rule 27.26(h) creates a duty for appointed counsel to "ascertain from the prisoner whether he has included all grounds known to the prisoner as a basis for attacking the judgment and sentence and to amend the motion to include any claims not already included," Drese failed to confer with petitioner and failed to amend the pro se motion prior to the hearing. (See 27.26 Tr.).

At petitioner's request, Drese asked the court for a continuance of the 27.26 hearing so that he could file an amended motion and raise additional claims. The court eventually granted the continuance, but then forced petitioner to immediately, without assistance of counsel, offer all grounds he intended to raise in the amended petition. The court stated:

I want you to tell me now . . . in what other ways Mr. Sterling petitioner's trial counsel was ineffective in assisting. sic I want to hear every complaint you have against Mr. Sterling right now . . . so we don't have to plow this ground again on February 10th. Now tell me what else you have a complaint about. (27.26 Tr. at 24).

Even though petitioner had not conferred with, or had not received assistance from Drese, petitioner stated nine additional ways he felt his trial counsel had provided ineffective assistance.

The court then banned petitioner and counsel from investigating or adding any more claims to the petition, stating:

You may amend your pleadings to include everything he's petitioner raised today, but you can't raise new items. That's right, because I want that exhausted today. Mr. Boliek is prepared, I assume, to testify to that because that's what he alleged and that's what we came here today for. That's what this hearing was for. He wants to expand it and I'm going to permit him to do that but I'm not going to let him come back on the tenth and start all over this again, or add to the allegations of what Sterling did. Now what Mr. Sterling did at that time of trial, he's known that since the date of trial and he either knows it now or doesn't. And going back and talking to Doyle Williams inmate who assisted petitioner in preparing his pro se direct appeal brief and his pro se 27.26 petition is not going to help. That's what I'm trying to prevent. Do you understand that? (27.26 Tr. at 30).

Drese complied with the court's directive and filed an amended petition containing only those complaints articulated by petitioner at the first 27.26 hearing. As a result, his claim that trial counsel provided ineffective assistance by failing to present mitigating evidence at sentencing was omitted. The transcript excerpt clearly illustrates that the decision to forego adding this claim was not a "tactical" or "intentional" decision. Amadeo v. Zant, 486 U.S. 214, 215, 108 S.Ct. 1771, 1773, 100 L.Ed.2d 249 (1988).

Respondent argues that it was Drese who failed petitioner because he did not meet with him or timely amend his petition. The 27.26 court, however, had discretion to allow counsel more time to investigate claims or at least time to amend and add legal claims assessed and formulated by counsel. The court's actions instead violated well-established Missouri principles and resulted in petitioner being denied any forum in which to present his ineffective assistance of counsel claims. The court's actions made compliance with Missouri's Rule 27.26 impracticable if not impossible.

First, the court forced petitioner to continue to act pro se. Although appointed counsel wrote the amended petition, the only assistance petitioner received in formulating the legal claims came from inmate Doyle Williams. The resulting legal claims were, in effect, pro se.

Ironically, the Missouri Supreme Court adopted a per se rule for the appointment of counsel in 27.26 proceedings to prevent such unexhaustive, pro se filings. See Fields v. State, 572 S.W.2d 477 (Mo.1978) (en banc). The court acknowledged that nearly all motions to vacate under Rule 27.26 were filed without assistance of counsel and that prisoners were often aided by jailhouse lawyers. Id. at 482. The court stated, "the proper agent to assist the court in the search to determine whether a claimed ground for relief is meritorious and deserving of relief or not meritorious or perhaps even frivolous is an attorney, appointed pursuant to rule 27.26(h)." Id. The court correctly observed that "assistance of counsel in preparing and filing an amended motion adequately stating all issues involved . . . would make much easier the task of the trial and appellate courts in resolving the questions involved." Id. (citations and quotation marks omitted). "Additionally, an attorney is able by training and experience to ask probing questions and thereby elicit important information which the petitioner might otherwise fail to disclose through ignorance." Id. at n. 3.

It is absurd to expect an inmate to have the ability to assess his own trial and to present "all grounds known" regarding the complex issue of ineffective assistance of counsel. See Gunn v. Newsome, 881 F.2d 949, 961 (11th Cir.1989) (quoting Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948) (because inmates "are often unlearned in the law . . . we do not impose on them the same high standards of the legal art which we might place on members of the legal profession")); Nell v. James, 811 F.2d 100, 105 (2nd Cir.1987). A denial of a 27.26 motion is a foregone conclusion once a trial court considers it without amendment. Young v. State, 724 S.W.2d 326, 327-28 (Mo.Ct.App.1987).

Next, the court prevented Drese from carrying out his professional duty and his duty prescribed by Rule 27.26. Pursuant to 27.26(h), "counsel shall have the duty to ascertain from the prisoner whether he has included all grounds known...