Clark v. Caspari

• Decision Date: 15 March 2001
• Docket Number: No. 00-1844,00-1844
• Citation: 274 F.3d 507
• Parties: (8th Cir. 2001) MICHAEL A. CLARK, APPELLANT, v. PAUL D. CASPARI, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 507

274 F.3d 507 (8th Cir. 2001)

MICHAEL A. CLARK, APPELLANT, v. PAUL D. CASPARI, APPELLEE.

No. 00-1844

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: March 15, 2001

Filed: November 28, 2001

Appeal from the United States District Court for the Eastern District of Missouri.

Before Hansen and Heaney, Circuit Judges, and Battey¹, District Judge.

Heaney, Circuit Judge.

Michael A. Clark appeals the district court's² denial of his Petition for Writ of Habeas Corpus. The primary question presented on appeal is whether the state trial court erred in failing to suppress eyewitness identification evidence that was the product of a purportedly suggestive "show-up" procedure. The district court answered that question in the negative, and we affirm.

I. BACKGROUND

On November 12, 1988, two African-American men entered Mack's Package Liquor Store in St. Louis County, Missouri. Store clerk Virginia Conner was the only other person in the store. Conner testified that the men wanted to know where the wine was located and that they both faced her as she directed them towards the wine. The two men faced Conner another time to inquire about the price of various wine products, and again when they approached the counter to pay for their purchases. Conner testified that when she opened the cash register, the shorter of the two men reached over the counter and removed some money. When she looked up, Conner saw that the taller man was pointing a gun at her, and both men were smiling.

After the two men removed the money from the cash register, they instructed Conner to lie on the floor behind the counter. When Conner lied down, she was able to activate the silent alarm. As the two men were leaving the store, a customer, John Walker, was entering and had a brief verbal exchange with the taller of the two men about some black gloves that the man had dropped. Specifically, Walker asked the man whether he had dropped his gloves. The man took the gloves from Walker, said "thank-you," and left the store.

After shopping for a short while, Walker approached the counter with his merchandise, whereupon Conner told him that the store had just been robbed. Walker testified that he ran outside and yelled at the two men to stop. He was able to observe the two men when they stopped momentarily, and again a short time later. Eventually, he went to a nearby restaurant to call the police. Walker testified that he described the two men to the 911 operator as a short black man, about 5' 7", and a tall black man wearing a dark jacket and scarf on his head. Walker also testified that he attempted to provide a similar description to a responding police officer, however, the officer drove off as soon as Walker told him the direction that the two men were walking.

About fifteen minutes after the robbery, police officer Michael Doedli observed two black men who matched the description that was provided by the police dispatcher walking near railroad tracks located north of Mack's Package Liquor Store.³ The men fled after Doedli told them to stop. Fifteen minutes later, police separately apprehended both of these men, who were later identified as Clark and Paige Spears. At the time of his arrest, Clark was wearing jeans, a black corduroy jacket, and a black silk scarf on his head. Spears was wearing a black silky jacket, a blue beret-style hat, and dark pants. Police found a pair of black leather gloves and a blue steel derringer near Clark.

Following their arrest, Clark and Spears were taken to the driveway of a nearby apartment complex, where they were forced to lie face down while handcuffed. A white male police officer with a shotgun stood over them. Several minutes later, Conner and Walker were taken to this location to identify Clark and Spears. When they arrived, Conner and Walker saw Spears being hauled to his feet. Both men were surrounded by white male police officers. Conner, who was visibly shaken by the events, identified both Clark and Spears. Walker identified Clark, and indicated that he was not sure about Spears.

On February 9, 1989, Clark and Spears were charged with first degree robbery and armed criminal action. They were tried together beginning on October 30, 1989. After the jury was unable to reach a verdict, the court declared a mistrial. Clark and Spears were retried on December 12, 1989. This time, the jury found them guilty.

The state trial court determined that Clark was a prior, persistent, and Class X offender, and sentenced him to life in prison on the robbery count, and thirty years on the armed criminal action count. Clark appealed this conviction and sentence to the Missouri Court of Appeals on three grounds: (1) lack of jurisdiction, (2) impermissible identification (show-up), and (3) improper closing argument. The Missouri Court of Appeals affirmed. See State v. Clark, 809 S.W.2d 139 (Mo. Ct. App. 1991). Clark did not file a motion to transfer the case to the Missouri Supreme Court or a Rule 29.15 motion for post-conviction relief. Instead, he filed a petition in federal court, seeking habeas corpus relief. See Title 28 U.S.C. § 2254.

Clark raised a variety of claims in his Petition for Writ of Habeas Corpus. The district court dismissed Clark's habeas corpus petition with prejudice, finding that all of his claims, other than his claim of ineffective assistance of counsel on appeal, were barred by procedural default because he failed to: (1) file a timely Rule 29.15 motion in the Missouri state court, (2) raise the issues in his Motion for New Trial or on direct appeal, and (3) seek transfer of his direct appeal to the Missouri Supreme Court. See Hall v. Delo, 41 F.3d 1248, 1249 (8th Cir. 1994) (federal habeas review is barred when a federal claim has not been "fairly presented" to the state court for a determination on the merits) (citation omitted). Further, the district court found no actual cause to excuse the procedural default with respect to Clark's failure to file a Rule 29.15 motion, or his failure to raise certain issues in his Motion for New Trial or on direct appeal. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (a procedural bar exists to federal collateral review of the claims unless the petitioner can show cause and prejudice for the failure). The district court did find cause to excuse his failure to make a motion to transfer his direct appeal to the Missouri Supreme Court, however, because at the time the Missouri Court of Appeals decided his direct appeal, the prevailing law in this circuit was that a habeas petitioner did not have to make such a motion to transfer in order to satisfy the exhaustion requirement. See, e.g., Dolney v. Erickson, 32 F.3d 381, 383-84 (8th Cir. 1994). The district court found no actual prejudice with respect to any of Clark's grounds to excuse the procedural default, but did discuss the show-up claim at some length. The district court then granted a certificate of appealability on the question of whether the pretrial show-up was impermissibly suggestive. See Title 28 U.S.C. § 2253. This appeal followed.

II. DISCUSSION

We first dispense with the State's argument that the district court erred when it found that Clark's show-up claim was not procedurally barred for his failure to file a motion to transfer his case to the Missouri Supreme Court. This issue is controlled by Dixon v. Dormire, 263 F.3d 774 (8th Cir. 2001). See also Coleman v. Kemna, 263 F.3d 785 (8th Cir. 2001); Moore v. Luebbers, 262 F.3d 757 (8th Cir. 2001).

After Clark filed his federal habeas petition, the United States Supreme Court decided that the exhaustion doctrine requires a state prisoner to file for any available discretionary review in the state's highest court prior to filing for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). In Coleman, and in Moore, we stated as follows:

In Dixon we concluded that the O'Sullivan opinion requires Missouri prisoners to seek a discretionary transfer to the Supreme Court of Missouri. Nevertheless, we did not allow the State to assert an exhaustion or procedural default defense in that case because, although the prisoners had failed to exhaust discretionary review, they had bypassed this available remedy before O'Sullivan was filed and in reliance on the State's prior and consistent position that such a transfer was not necessary to exhaustion and would not be asserted as a defense against claims brought in federal court. Id. Our reasoning was based on Ford v. Georgia, 498 U.S. 411, 423-24 (1991), where the Court stated that only a "firmly established and regularly followed state practice" will bar federal court review. There was no firmly established state practice in Missouri of insisting on the exhaustion of discretionary review; to the contrary, the State had consistently asserted that the exhaustion of discretionary review was unnecessary.

Moore, 262 F.3d at 758; see also Coleman, 263 F.3d 785. For the reasons stated in Dixon, we hold that O'Sullivan did not prohibit the district court from considering Clark's habeas petition in this instance "because the State has not previously 'strictly or regularly' relied on the default of this state procedure to bar federal review." Moore, 262 F.3d at 758 (citation omitted). Accordingly, we turn to the merits of Clark's show-up claim.

Clark claims the trial court erred by rejecting his motion to suppress the identification testimony of Conner and Walker. He contends that their identifications were the result of an improperly suggestive procedure, and were unreliable. Under Missouri law, "[i]dentification testimony is admissible unless the pretrial identification procedure was unnecessarily suggestive and the suggestive procedure made the identification unreliable." State v. Middleton, 995 S.W.2d 443, 453 (Mo. 1999) (citations omitted); see also State v. Secrease, 859 S.W.2d 278, 279 (Mo. Ct. App. 1993) (stating that under Missouri law, the test for...