Byrd v. Delo, 90-1491

• Decision Date: 23 August 1991
• Docket Number: No. 90-1491,90-1491
• Citation: 942 F.2d 1226
• Parties: Maurice Oscar BYRD, Appellant, v. Paul DELO, Superintendent, State Correctional Facility at Potosi, and Attorney General of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1226

942 F.2d 1226

Maurice Oscar BYRD, Appellant, v. Paul DELO, Superintendent, State Correctional Facility at

Potosi, and Attorney General of the State of

Missouri, Appellees.

No. 90-1491.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 8, 1991.

Decided Aug. 14, 1991.

Rehearing Denied Aug. 21, 1991.

Concurring opinion Aug. 21, 1991, as amended Aug. 23, 1991.

Burton H. Shostak, argued (Deborah J. Kerns and Theodore A. Zimmermann, on brief), St. Louis, Mo., for appellant.

Stephen D. Hawke, Jefferson City, Mo., for appellee.

Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

In this death-penalty case from Missouri, we have before us what is in effect a third petition for habeas corpus. Petitioner, Maurice Oscar Byrd, claims that a legal development occurring after the dismissal of his second petition opens up some of his federal constitutional claims for review on the merits. The legal development in question is an order of the Supreme Court of Missouri, denying, without comment, Byrd's original petition for habeas corpus under Mo.Sup.Ct.R. 91, an order that the Missouri Supreme Court later clarified by stating that its action had been based solely on state procedural grounds. Believing that Byrd's reliance on this new development was a nonfrivolous theory with the arguable effect of clearing away procedural barriers to federal habeas relief, we stayed his execution, set a briefing schedule, stayed the issuance of our mandate following our affirmance of the dismissal of his second habeas petition, and heard oral argument.

In the meantime, the Supreme Court has decided Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

Petitioner argues that two federal claims are now open for review on the merits. First, he claims that his jury was instructed that it could not consider any mitigating circumstance unless it first found unanimously the existence of that circumstance. This instruction, we are told, violates the Eighth Amendment, as incorporated against the states by the Due Process Clause of the Fourteenth Amendment, and as interpreted by the Supreme Court in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). For reasons to be detailed in this opinion, we reject this claim. Petitioner's Mills argument was not raised in his first habeas petition. There was no good reason for this omission. Therefore, to entertain this claim on its merits now would be an abuse of the writ. See McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The abuse-of-the-writ doctrine focuses not on what occurred in the state courts, but on what occurred (or did not occur) in a previous federal habeas petition. Accordingly, whatever the legal effect of the Missouri Supreme Court's handling of Byrd's recent petition under Rule 91, analysis of the Mills claim is unaffected. It was an abusive claim at the time of our dismissal of the second habeas petition, and it is still an abusive claim.

Byrd's second argument has to do with the selection of his trial jury. He claims that the prosecuting attorney exercised peremptory challenges on the basis of race, and did so consistently in case after case, thus violating the Equal Protection Clause of the Fourteenth Amendment as interpreted by the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). After analyzing the history of this claim, we conclude that its previous rejection was based on a procedural default occurring in the state courts. Accordingly, as to the Swain claim, it is necessary to address Byrd's contention that the Missouri Supreme Court's recent orders remove any state procedural bar. Having considered this argument in light of the Supreme Court's recent rulings in Coleman and Ylst, we hold that it cannot withstand analysis. The state procedural bar previously identified as an obstacle to the Swain claim remains undisturbed. This claim, too, must be once again rejected.

The stay of execution previously entered must be dissolved. We direct that our mandate issue forthwith. A further stay of execution, if one is granted, must come from this Court en banc, the Supreme Court, or a justice thereof.

I.

In order to put the legal arguments in context, we recount as briefly as possible the relevant aspects of the procedural history of this case. Byrd's first petition for habeas relief was denied by the District Court, and this Court affirmed. Byrd v. Armontrout, 686 F.Supp. 743 (E.D.Mo.1988), aff'd, 880 F.2d 1 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). He then filed, as a separate proceeding, a second federal habeas corpus petition. The District Court denied this petition. Byrd v. Delo, 733 F.Supp. 1334 (E.D.Mo.1990). We affirmed. 917 F.2d 1037 (8th Cir.1990). In our affirming opinion, nine separate claims were examined, three of them repetitive (that is, claims that had already been considered and rejected in the first habeas proceeding), and six of them new (that is, claims that had not been raised in the first federal habeas proceeding).

At the end of our opinion, we addressed a point made by Byrd with respect to the possible availability of an additional state remedy. Byrd said he had not yet filed a state habeas petition under Mo.Sup.Ct.R. 91, and asked us to continue his stay of execution until such a petition could be filed and disposed of. We denied this request. The Missouri courts, we said, should be the ones to decide whether the execution should be stayed pending determination of a Rule 91 petition.

Counsel for Byrd, showing their customary diligence and alertness, promptly filed an original habeas corpus petition with the Supreme Court of Missouri under Rule 91. The Missouri Supreme Court denied the petition on the same day that it was filed, October 23, 1990. The Supreme Court's order read as follows:

Now at this day, on consideration of the petition for writ of habeas corpus herein to the said respondent, it is ordered by the court here that the said petition be, and the same is hereby denied.

Byrd then returned to us. He invoked the "plain statement" rule of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The Missouri Supreme Court's order, he argued, did not contain a plain statement demonstrating that its rejection of Byrd's petition was based on state procedural grounds. Accordingly, under Harris, it should be assumed that the state court had reviewed and rejected Byrd's federal claims (contained in the Rule 91 petition) on their merits. This action by the state court, Byrd argued, opened up the merits of these same claims for federal habeas review. On October 26, 1990, we granted Byrd's motion for stay of execution and stay of our mandate. We did so in the belief that his Harris v. Reed theory was substantial enough to deserve careful examination.

Three days later, the State filed with the Missouri Supreme Court a "Motion for Modification of Order," asking the Court to change its previous order to demonstrate that it had been based on procedural grounds, and not on the merits. Before Byrd could file an opposition to this motion, the Missouri Supreme Court granted it. It entered the following order on October 29, 1990:

The order of this Court entered on October 23, 1990, denying the petition for writ of habeas corpus is vacated and in lieu thereof the following order is entered this date: The petition discloses no ground for relief that could not have been asserted either in the initial appeal or in the 27.26 motion, both of which have been finally determined, or [are] otherwise procedurally barred. The petition is denied. All further claims for relief in the courts of Missouri are procedurally barred.

The State then asked us to vacate our stay of execution. The Missouri Court's order of October 29, it said, exploded petitioner's theory. The order demonstrated that the Supreme Court's rejection of petitioner's new Rule 91 petition was not based on the merits, but rather solely on the state-law procedural ground that Rule 91 is not available to litigate issues that could have been asserted earlier, either on direct appeal or in a state post-conviction proceeding filed in a trial court. We denied the State's motion on the next day, October 30. The circumstances surrounding the Missouri Supreme Court's second order--including the fact that it had been entered within a matter of hours, without allowing Byrd to file a response--convinced us that petitioner's Harris v. Reed theory remained substantial enough to prevent the carrying out of the death sentence until we could thoughtfully examine it. This Court en banc, the Circuit Justice, and the Supreme Court of the United States all denied motions by the State to vacate our stay. A briefing schedule was then set, and an oral argument held.

II.

Technically, we are still dealing with petitioner's second habeas petition. This is the petition whose dismissal we affirmed on October 19, 1990. Thereafter, for reasons that have been described, we stayed the issuance of our mandate, stayed petitioner's execution, and proceeded to consider his claims in the ordinary course. In form, therefore, the action we take today consists simply of dissolving the previous stay of mandate, dissolving also the stay of execution, and allowing the case to proceed further, either to the Court en banc or to the Supreme Court of the United States. In substance, though, as in Simmons v. Lockhart, 915 F.2d 372 (8th Cir.1990), we are considering a third federal habeas petition. Byrd claims that legal developments occurring after the dismissal of his second petition have opened up the merits of some at least of his federal constitutional attacks on his sentence and conviction. In our order of October 29, 1990, we identified two claims that we believed...