Brown v. Luebbers

• Decision Date: 15 June 2004
• Docket Number: No. 02-1845.,02-1845.
• Citation: 371 F.3d 458
• Parties: Vernon BROWN, Appellant, v. Allen D. LUEBBERS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

371 F.3d 458

Vernon BROWN, Appellant, v.Allen D. LUEBBERS, Appellee.

No. 02-1845.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2004.

Filed: June 15, 2004.

John W. Simon, argued, Clayton, MO (Richard H. Sindel, Clayton, MO, on the brief), for appellant.

Stephen D. Hawke, argued, AAG, Jefferson City, MO, for appellee.

Before LOKEN, Chief Judge, RICHARD S. ARNOLD, BOWMAN, WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, and COLLOTON, Circuit Judges, En Banc.

BOWMAN, Circuit Judge.

In 1991, a jury convicted Vernon Brown in Missouri state court for the 1985 strangulation death of Synetta Ford.He was sentenced to death.His consolidated direct appeal and post-conviction challenges in the Missouri Supreme Court were unavailing.State v. Brown,998 S.W.2d 531(Mo.)(en banc), cert. denied,528 U.S. 979, 120 S.Ct. 431, 145 L.Ed.2d 337(1999).His 28 U.S.C. § 2254 petition in the District Court¹ raising thirty-one grounds for relief was denied, but the court granted a certificate of appealability on eleven grounds.A panel of this Court affirmed the District Court in part but granted the writ on one of Brown's claims challenging his sentence.Brown v. Luebbers,344 F.3d 770(8th Cir.2003).

Both Brown and Allen D. Luebbers(representing the State) filed petitions for rehearing with suggestions for rehearing en banc.We requested from Brown a supplemental response addressing the appropriate standard of review to apply to the issue upon which the writ had been granted.After receiving the response, the panel denied both petitions for rehearing.The Court en banc rejected Brown's suggestions for reconsideration by the full Court but granted an en banc rehearing to the State.

The claim in question concerns a letter that Brown's defense counsel sought to have read into evidence during the penalty phase of Brown's trial for the Ford murder.Counsel represented to the trial court that the letter was from Darius Q. Turner, Brown's younger brother, and had been sent to Brown's counsel in the public defender's office.According to the letter, Turner, a sergeant in the United States Army, was deployed in Saudi Arabia in Operation Desert Shield at the time of Brown's sentencing.As a result, he was unable to be present in the courtroom to testify.In the letter, Turner noted the love and understanding between him and his brother and recounted how Brown had protected Turner from bigger boys when Turner was a child.As for their relationship as adults, Turner expressed regret for not staying in touch and told his brother that the telephone calls and letters from Brown meant more to him than those he received from others.Finally, he implored those who might read the letter to let God's law decide Brown's fate.The trial court excluded the letter as hearsay.

We now affirm the District Court's denial of relief on all grounds.In doing so, we adopt the holdings and reasoning of the panel opinion, except for Part VIII and the result.

I.

Under 28 U.S.C. § 2254as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, a decision by a state court"with respect to any claim that was adjudicated on the merits in State court proceedings" is entitled to deference by the federal courts.28 U.S.C. § 2254(d).That is, we look only to see if such adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."Id.§ 2254(d)(1), (2).AEDPA effected a move toward greater deference in the § 2254 courts' review of state-court decisions.SeeLindh v. Murphy,521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481(1997)(noting"§ 2254(d)'s new, highly deferential standard for evaluating state-court rulings").

But as the language of the statute makes clear, there is a condition precedent that must be satisfied before we can apply the deferential AEDPA standard to Brown's claim.The claim must have been "adjudicated on the merits" in state court.The majority (and the dissent, for that matter) in the panel opinion for the Court concluded that Brown's constitutional claim regarding the Turner letter had not, in fact, been adjudicated on the merits in state court.²So the first question for us to consider is: what constitutes an adjudication on the merits?From the plain language of the statute and black-letter law, we know that the state court's decision must be a judgment — an adjudication — on a substantive issue — the merits (as compared with a procedural or technical point).A survey of opinions from our sister circuits demonstrates that, beyond these two considerations, resolving the question is not so easy.One thing is clear — no court has established bright-line rules about how much a state court must say or the language it must use to compel a § 2254 court's conclusion that the state court has adjudicated a claim on the merits.That is as it should be, given one court's difficulty in divining the thought processes of another based only on language being used in certain ways, not to mention the comity issues that would be raised.Cf.Coleman v. Thompson,501 U.S. 722, 739, 111 S.Ct. 2546, 115 L.Ed.2d 640(1991)(noting in discussion of procedural default in state habeas cases that the Court has "no power to tell state courts how they must write their opinions" so that reviewing "federal courts might not be bothered with reviewing state law and the record in the case").We must simply look at what a state court has said, case by case, and determine whether the federal constitutional claim was considered and rejected by that court.

After careful reflection upon the adjudication issue in this case, we now conclude that Brown's constitutional claim was indeed adjudicated on the merits in state court, on two independent grounds, and that the AEDPA § 2254(d) standard of review should apply.

A.

In Brown's consolidated appeal, the Missouri Supreme Court, at the very least, acknowledged that a federal constitutional claim was before it when it said, "Brown alleges that the letter should have been read into evidence pursuant to State v. Phillips,940 S.W.2d 512, 517-18(Mo. banc 1997), and Green v. Georgia,442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738(1979)"(per curiam).Brown,998 S.W.2d at 549.Phillips, a Missouri death penalty case, concerned a Brady³ issue raised in the petitioner's consolidated appeal.The State had argued that the Brady issue was of no consequence because the statement in question was hearsay and would not have been admitted into evidence even if it had been disclosed.The Phillips court, in the pages cited by the Missouri Supreme Court in Brown, analyzed the question under Green and concluded that the testimony was highly relevant and reliable, and it should have been admitted.

In Green, also a capital case, the hearsay at issue was the testimony of a witness given at the trial of Carzell Moore, who was indicted on the same charges of murder and rape as Green, the petitioner.Moore and Green were tried separately.The witness testified in Moore's trial, the first to be held, that Moore, Green's alleged partner in crime, had confessed to him, the witness.According to the testimony, Green was not present when the victim was murdered.The testimony was excluded from Green's later trial as hearsay.The Supreme Court did not second-guess the state court's evidentiary ruling that the testimony was hearsay but held that "its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment.The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability."Green,442 U.S. at 97, 99 S.Ct. 2150(citingLockett v. Ohio,438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973(1978)(plurality opinion);id. at 613-16, 98 S.Ct. 2954(opinion of Blackmun, J.)).⁴

It is true that the bulk of the Missouri Supreme Court's brief discussion of Brown's claim was devoted to the state-law evidentiary question and whether "the trial court abused its discretion" in excluding the letter.Brown,998 S.W.2d at 549.But the "summary nature" of the discussion of the federal constitutional question does not preclude application of the AEDPA standard.James v. Bowersox,187 F.3d 866, 869(8th Cir.1999), cert. denied,528 U.S. 1143, 120 S.Ct. 994, 145 L.Ed.2d 942(2000).Here, the Missouri Supreme Court cited cases applying the relevant constitutional rule and held against Brown on the question of reliability.Under Green, absent a determination that "substantial reasons" exist to assume the reliability of the evidence in question, it will not be a due process violation for a court to decline to admit the evidence.The citation to the relevant law and the invocation of "reliability" in the opinion are enough to persuade us that the Missouri Supreme Court adjudicated the due process claim on the merits.That is not to say that citation to law and a key word from the application of that law — or anything else — is required for us to determine that the claim was adjudicated on the merits.We only hold that they suffice in this case for us to conclude that the Missouri Supreme Court's decision on this claim was an adjudication on the merits.

B.

We further conclude that the Missouri Supreme Court adjudicated Brown's federal constitutional claim on the merits in an alternative holding.Following its references to Green and the reliability of the letter, the court said, "We ... note that even if [the trial judge] was wrong about the letter's reliability, its exclusion does not in the context of this case seem prejudicial,"Brown,998 S.W.2d at 549-50, a conclusion that is an application of the...