Burton v. Dormire

• Decision Date: 08 July 2002
• Docket Number: No. 01-2259.,01-2259.
• Citation: 295 F.3d 839
• Parties: Darryl BURTON, Appellant, v. David DORMIRE, Jeremiah Nixon, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

295 F.3d 839

Darryl BURTON, Appellant, v. David DORMIRE, Jeremiah Nixon, Appellees.

No. 01-2259.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2002.

Filed: July 8, 2002.

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Cheryl A. Pilate, argued, Kansas City, Missouri, for appellant.

Michael J. Spillane, argued, Jefferson City, Missouri (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before BOWMAN, MAGILL and BYE, Circuit Judges.

BYE, Circuit Judge.

The writ of habeas corpus balances the constitutional imperative of a fair criminal trial with respect for state court judgments and the finality thereby achieved for victims of crime and society at large. The writ serves as a "bulwark against convictions that violate fundamental fairness," Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (quotation omitted), by providing "an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty." Stone v. Powell, 428 U.S. 465, 491 n. 31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). At the same time, however, "[l]iberal allowance of the writ ... degrades the prominence of the trial itself," Engle, 456 U.S. at 127, 102 S.Ct. 1558, and complicates our unique system of federalism, Williams v. Taylor, 529 U.S. 420, 436-37, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Accommodating these frequently opposing principles has long produced controversy.

Debate has intensified in recent years as Congress and the federal courts have limited access to the writ in reaction to increasing numbers of habeas petitions. The limitations include a confounding array of procedural impediments that prevent consideration of the merits of claims, as well as substantive barriers that establish modes of review utterly inhospitable to prisoners. Many barriers and impediments represent sound efforts to curb the groundswell of frivolous and duplicative habeas petitions. But the writ of habeas corpus is not a one-way path designed to defeat prisoners' claims. Rather, our habeas jurisprudence is a balancing act requiring careful attention to each of the important, yet often opposing, principles at stake. Even as we screen meritless petitions, therefore, we must take care not to shut the door to prisoners whose claims cause us to doubt the fairness of their convictions.

The present case suggests we may not yet have achieved the optimal balance. Darryl Burton's habeas petition depicts a troubling scenario. One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom. Burton was convicted on the strength of two eyewitness accounts. Since his trial and imprisonment, new evidence has come to light that shakes the limbs of the prosecution's case. One eyewitness has recanted and admitted perjury. The other eyewitness's veracity has been questioned by a compatriot who avers it was physically impossible for him to have seen the crime. A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton's claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent. Mindful of our obligation to apply the law, but with no small degree of reluctance, we deny Burton a writ.

I

Donald Ball was murdered at an Amoco gas station in St. Louis on the night of June 4, 1984. A gunman ran up to Ball as he filled his gas tank. The gunman chased Ball across the station lot and shot him several times. Police eventually arrested Burton and the state charged him with capital murder and armed criminal action. The state was unable to procure physical evidence implicating Burton, but it produced two eyewitnesses, Claudex Simmons and Eddie Walker, to testify that Burton was the gunman.

Simmons said he had been standing in line to buy cigarettes at the Amoco station when the shooting took place. He told the jury he knew Burton and had seen him shoot Ball. He also testified Burton ran north off the Amoco lot after the shooting. But Simmons's trial testimony was inconsistent with his statements to police during the murder investigation. Simmons had initially told police he did not see the shooter. And in one pretrial interview, Simmons told police he was exiting a liquor store next to the Amoco station when he heard shots and saw the shooter.

The state had obtained Simmons's testimony at trial by reaching a plea bargain with him on an attempted robbery charge. Simmons told the jury he would receive a one-year sentence on the robbery charge if he testified truthfully at Burton's trial, and a three-year sentence if he lied or refused to testify. Burton alleges Simmons also received a second plea bargain for an unrelated stealing felony, but told neither the jury nor Burton the terms of that deal. Burton claims the second plea bargain was entered to secure Simmons's testimony against him at trial, though there is scant evidence in the record to confirm Burton's suspicions.

The second eyewitness was Eddie Walker. After the shooting, Walker told officers he was standing on the Amoco lot when Ball drove up to buy gas. He saw a gunman walk onto the station lot from the south side and shoot Ball. Walker also told police the gunman ran south after shooting Ball (not north, as Simmons stated) and sped away in a blue Buick. Walker said he had known both Burton and Ball for roughly ten years and could identify Burton as the gunman from photographs.

Walker told the jury a different story than he told officers, however. Walker testified he had never seen Ball drive up to the Amoco station in the first place. Likewise, he did not see the gunman approach, because he had been drinking from a half-pint of gin or vodka with friends next to the side of the nearby liquor store when the first shot rang out. Hearing that shot, Walker claimed he turned and saw Burton shoot Ball again, then run east across the street, before circling back and ending up on the south side of the Amoco lot. Walker also testified Burton had not sped from the scene in a Buick.

The state's only significant evidence of Burton's guilt was the eyewitness testimony of Simmons and Walker, though the state offered some proof of motive. Ball's first cousin, Cynthia Whitfield, told a police officer after the shooting that Ball and Burton had been feuding before the murder. According to Whitfield, Ball's girlfriend (who was apparently a prostitute) had left him and taken up with Burton. Whitfield's account was undermined, however, because she identified a third man as her cousin's murderer, and because Ball's girlfriend later denied any feud between Ball and Burton.

A jury convicted Burton of capital murder and armed criminal action in March 1985. A Missouri circuit judge then imposed consecutive sentences of 25 and 50 years without the possibility of parole. After Burton had been convicted and imprisoned, new counsel reinvestigated the crime scene and the eyewitnesses with the help of investigators. They obtained a variety of affidavits that undercut the force of Simmons's and Walker's eyewitness testimony.

Five months after trial, while serving his own prison sentence, Simmons recanted his testimony implicating Burton in the murder: "I submitted perjury testimony [sic] to gain immunity, from the herein-mentioned murder of one Donald Ball." App. 646. Burton later obtained several affidavits from Simmons's acquaintances asserting Simmons had admitted his perjury to them, or had expressed ill feelings toward Burton.

Investigators could not interview Walker, who died in November 1996, but Burton's investigators tracked down one of Walker's friends, Daniel Pennington. Pennington said he had been drinking with Walker outside another friend's house near the Amoco station at the time of Ball's murder.

If Eddie Walker said that he saw the shooting and could identify the shooter that night, he was lying. It is physically impossible for any of us to see the [Amoco] lot and the area of the shooting from where we were standing.

App. 82. Pennington and other affiants claimed Walker was a notorious liar. And one woman even asserted Walker had poor eyesight and never wore his glasses while drinking.

Apart from building a case against the two eyewitnesses, Burton's investigators also attempted to exonerate Burton directly. Investigators located Jennifer Shaw, a woman present at the Amoco station when the shooting occurred. Shaw told investigators she knew Burton and had seen the shooting, but she did not know the identity of the shooter. Shaw said she would have testified at trial if she had been contacted. Investigators also developed evidence suggesting the gunman was a man named Jesse Watson, who is now deceased. Watson had allegedly been feuding with Ball and had vowed to kill him.

Much of this evidence was developed during, or after, Burton exhausted his state-law remedies in preparation for seeking a writ of habeas corpus in federal court. Some of Burton's arguments were therefore defaulted because he failed to raise them in timely fashion. It must also be acknowledged that some portion of this evidence is likely inadmissible hearsay.

Burton filed a habeas petition raising 16 claims in federal court in April 1997. The district court¹ considered the variety of different claims and denied every one of them on three separate occasions: once in the original petition, again in a Fed. R.Civ.P. 59(e) motion, and finally in a Fed. R.Civ.P. 60(b) motion. Despite rejecting Burton's claims, the district court was eventually persuaded to grant Burton a certificate of appealability on four issues, and an administrative panel of our court later expanded that certificate by two issues. See 28 U.S.C. § 2253(c).

II

We turn now to a discussion of...