Charron v. Gammon, s. 94-3661

• Decision Date: 25 October 1995
• Docket Number: 95-1220,Nos. 94-3661,s. 94-3661
• Citation: 69 F.3d 851
• Parties: Kenneth G. CHARRON, Sr., Petitioner-Appellant, v. James Anthony GAMMON; State of Missouri, Respondents-Appellees. Kenneth G. CHARRON, Sr., Petitioner-Appellant, v. James Anthony (Tony) GAMMON, Superintendent; Jeremiah (Jay) W. Nixon, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 851

69 F.3d 851

Kenneth G. CHARRON, Sr., Petitioner-Appellant, v. James Anthony GAMMON; State of Missouri, Respondents-Appellees.

Kenneth G. CHARRON, Sr., Petitioner-Appellant, v. James Anthony (Tony) GAMMON, Superintendent; Jeremiah (Jay)

W. Nixon, Attorney General, Respondents-Appellees.

Nos. 94-3661, 95-1220.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1995.

Decided Oct. 25, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 94-3661

Dec. 20, 1995.

Warren Hoff, Jr., Clayton, Missouri, and Carol L. Moran, St. Louis, Missouri, for appellant.

John William Simon, Asst. Atty. Gen., Jefferson City, Missouri, for appellees.

Before WOLLMAN and HANSEN, Circuit Judges, and MAGNUSON, ^* District Judge.

HANSEN, Circuit Judge.

This matter involves the consolidation of two appeals. In the first appeal (95-1220), Kenneth G. Charron challenges the district court's ¹ denial of his 28 U.S.C. Sec. 2254 habeas corpus petition on the basis that his claims were procedurally defaulted. In the second appeal (94-3661), Charron challenges the district court's ² denial of his subsequent 28 U.S.C. Sec. 2254 habeas petition on the basis that it constituted an abuse of the writ. We affirm.

I.

On January 24, 1986, a jury in the City of St. Louis, Missouri, found Charron guilty of forcible rape, burglary in the first degree, and two counts of robbery in the second degree. On direct appeal to the Missouri Court of Appeals, Charron raised three points: First, the trial court did not have jurisdiction to convict him of forcible rape because the indictment only charged him with non-forcible rape. Second, his sentences of life imprisonment on the two robbery counts were in excess of the statutory limit. Third, the trial court erred by permitting his alleged accomplice to appear in court dressed in prison clothing. State v. Charron, 743 S.W.2d 436 (Mo.Ct.App.1987). Charron also filed a motion for an extension of time to file a supplemental brief to raise 12 additional issues; however, the court denied this motion. The court ultimately affirmed the convictions but reversed and remanded with respect to the sentencing issue. Id. at 438.

Charron later filed a motion for postconviction relief pursuant to Mo.Ct.R. 27.26, ³ and subsequently filed two amended motions. In his Rule 27.26 motion, Charron claimed that his trial counsel was ineffective on six bases. The trial court denied Charron relief. On appeal Charron raised two points, first that his trial counsel disclosed client confidences at the Rule 27.26 hearing, and second, that his postconviction counsel at the motion court level was ineffective. The Missouri Court of Appeals rejected both of these arguments in an unpublished opinion. Charron v. State, No. 56149, slip op. at 3 (Mo.Ct.App. June 26, 1990) (per curiam). Charron then filed state habeas corpus petitions in the circuit court of Cole County, in the Missouri Court of Appeals, and in the Supreme Court of Missouri. All three petitions were summarily denied.

Charron then filed a federal petition for a writ of habeas corpus raising twelve grounds for relief. ⁴ The magistrate judge to whom the case was referred issued a report and recommendation, ruling that each of Charron's claims was procedurally defaulted because the claims had not been presented to the Missouri courts either on direct appeal or in Charron's state postconviction petition. The magistrate judge determined that Charron failed to show cause and prejudice or actual innocence sufficient to overcome the procedural default and, therefore, recommended that Charron's habeas petition be dismissed with prejudice. The district court adopted the magistrate judge's report and recommendation. Charron appeals from this ruling.

Charron later filed a second federal habeas petition attacking the same convictions and sentences outlined above. Charron claimed only one ground for habeas relief in the second petition: that his due process and equal protection rights were being violated because the State of Missouri will not permit him to conduct DNA tests on certain evidence offered by the prosecution at trial. Charron argued that these tests would "prove conclusively petitioner's innocence." (No. 94-3661, R. at 7.) The magistrate judge to whom the case had been referred issued a report and recommendation recommending dismissal of this petition because it constituted an abuse of the writ and Charron failed to establish cause and prejudice or actual innocence sufficient to overcome this procedural obstacle. In the alternative, the magistrate judge concluded that Charron has no constitutional right to DNA testing and denied Charron's claims on the merits. The district court adopted both conclusions. Charron appeals from this ruling as well.

II.

A. Charron's First Habeas Petition

In his appeal from the district court's dismissal of his first habeas petition, Charron claims that the district court erred on three bases: (1) applying Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), retroactively in this case; (2) failing to properly evaluate the effect of the Supreme Court of Missouri's summary order denying his state habeas petition; and (3) concluding that Charron had not established cause and prejudice sufficient to overcome any procedural default. We address these arguments in turn.

Charron argues that the magistrate judge erred in concluding that Coleman governed the procedural default analysis. The magistrate judge initially concluded that under Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), Charron's claims were not procedurally defaulted. However, after the parties submitted additional documents, including the complete legal files from Charron's trial and postconviction proceedings, the magistrate judge concluded that Charron's claims were in fact procedurally defaulted based on Coleman. Charron contends that Coleman constituted a "new rule" under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and should not have been applied to his case because Coleman was decided after his conviction became final. Instead, Charron contends, the magistrate judge correctly concluded in the first instance that Harris controls the procedural default analysis.

We reject Charron's claim that Coleman constituted a "new rule" under Teague and accordingly agree with the magistrate judge that Coleman governs the outcome of the procedural default issue. In Teague, the Supreme Court held that a "new rule" which arises after a habeas petitioner's conviction becomes final may not be applied retroactively on collateral review to invalidate a state court conviction unless the rule falls within two narrowly circumscribed exceptions not relevant here. 489 U.S. at 301, 109 S.Ct. at 1070. In determining whether a principle sets forth a "new rule" under Teague, "the court must '[s]urve[y] the legal landscape as it then existed,' ... and 'determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.' " Caspari v. Bohlen, --- U.S. ----, ----, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (internal citation omitted) (alterations in original).

It is thus clear from the language of Teague and its progeny that its "new rule" principle applies to rules of constitutional law which the states are required to observe. Coleman, however, did not set forth any new constitutional principle but merely discussed the analysis to be used in determining whether claims have been procedurally defaulted pursuant to an independent and adequate state rule, as well as the standard required to overcome that default. Further, the language from Teague and Caspari indicates that the "new rule" principle applies to claims made by the habeas petitioner, not procedural defenses asserted by the state. Other courts have held that the procedural default rule from Coleman and the related doctrine of abuse of the writ outlined in McCleskey v. Zant, 499 U.S. 467, 477-97, 111 S.Ct. 1454, 1461-72, 113 L.Ed.2d 517 (1991), do not constitute "new rules" under Teague and therefore may be applied retroactively. See Hull v. Freeman, 991 F.2d 86, 90 (3d Cir.1993) (Coleman does not set forth "new rule" and may be applied retroactively); Andiarena v. United States, 967 F.2d 715, 717-18 (1st Cir.1992) (abuse of the writ doctrine not "new rule" and may be applied retroactively); Hudson v. Whitley, 979 F.2d 1058, 1062-63 (5th Cir.1992) (same). Thus, the magistrate judge properly applied Coleman in analyzing whether Charron's claims were procedurally defaulted.

Charron next argues that the magistrate judge erred by failing to evaluate the effect of the Supreme Court of Missouri's order denying his state habeas petition before the magistrate judge concluded that Charron's claims were procedurally defaulted. Charron contends that the court should have conducted an inquiry to determine whether the Supreme Court of Missouri's denial of his state habeas petition was in fact on procedural, rather than substantive, grounds.

Although Charron cites Byrd v. Delo, 942 F.2d 1226 (8th Cir.1991), as favorable authority, Byrd actually supports a finding that the magistrate judge did not need to conduct any extensive inquiry into the meaning of the summary denial of Charron's state habeas petition. In Byrd, the Supreme Court of Missouri summarily denied Byrd's state habeas petition, stating "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." Id. at 1229. Byrd argued that this ruling by the Supreme Court of Missouri was sufficient under Harris ⁵ to lift a state procedural bar and permit a federal court to review the merits of his habeas claims. Byrd, 942...