Clemons v. Luebbers

• Decision Date: 09 September 2004
• Docket Number: No. 02-3201.,No. 02-3239.,02-3201.,02-3239.
• Citation: 381 F.3d 744
• Parties: Reginald CLEMONS, Appellee/Cross-Appellant, v. Allen LUEBBERS, Superintendent, Potosi Correctional Center, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

381 F.3d 744

Reginald CLEMONS, Appellee/Cross-Appellant, v. Allen LUEBBERS, Superintendent, Potosi Correctional Center, Appellant/Cross-Appellee.

No. 02-3201.

No. 02-3239.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2003.

Filed: September 9, 2004.

Appeal from the United States District Court for the Eastern District of Missouri, Catherine D. Perry, J.

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Stephen D. Hawke, argued, Assistant Missouri Attorney General, Jefferson City, MO, for appellant.

John M. Kenney, argued, New York, NY (David Elbaum, Michelle B. Cherande and Nina L. Rifkind of New York, NY, and Mark G. Arnold, St. Louis, MO, on the brief), for appellees.

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.

BEAM, Circuit Judge.

This is an appeal stemming from an unfortunate series of events culminating in the sexual assault and murder of two women in St. Louis, Missouri. The district court granted Reginald Clemons habeas corpus relief based on a perceived denial of his Sixth Amendment right to a fair jury under Witherspoon v. Illinois, 391 U.S. 510, 518, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (holding that a death sentence was unconstitutional under the Sixth and Fourteenth Amendments when a veniremember was excluded for cause after simply voicing general conscientious or religious objections to the death penalty). Clemons v. Luebbers, 212 F.Supp.2d 1105 (E.D.Mo.2002) (Clemons II). We reverse because we find that Clemons has procedurally defaulted this claim.

I. BACKGROUND

On the night of April 4, 1991, Clemons, Antonio Richardson, Marlin Gray, and Daniel Winfrey went to the Chain of Rocks Bridge, an abandoned structure spanning the Mississippi River between Missouri and Illinois, to smoke marijuana. They parked on the Missouri side and walked across to the Illinois side to do the drugs. The marijuana would not light, however, and as they walked back across the bridge they met Julie Kerry, her sister Robin Kerry, and their cousin, Thomas Cummins, walking toward the Illinois side. The groups spoke briefly and then continued on their respective courses toward opposite ends of the bridge.

Upon reaching the Missouri side, Clemons suggested that the group rob the three, and the group then walked back toward the Illinois side, intercepting the Kerry sisters and Cummins at a bend in the middle of the bridge. Clemons, Richardson, and Gray took turns raping the Kerrys while Winfrey held down Cummins. Either Richardson or Clemons then pushed the sisters off of the bridge and ordered Cummins to jump from a pier directly below the bridge into the river seventy feet below.

Cummins survived the plunge into the river, and he eventually testified against the four assailants. Julie's body was found downstream three weeks later. Robin's body has never been found. Winfrey pled guilty to two counts of second-degree murder and agreed to testify against the remaining three in exchange for a recommended thirty-year sentence. Clemons, Richardson, and Gray were convicted of first-degree murder and sentenced to death. See Richardson v. Bowersox, 188 F.3d 973 (8th Cir.1999) (affirming denial of habeas corpus relief); Gray v. Bowersox, 281 F.3d 749 (8th Cir.2002) (same), cert. denied, 537 U.S. 1115, 123 S.Ct. 873, 154 L.Ed.2d 790 (2003).

After Clemons was convicted and sentenced, he filed a Rule 29.15 motion to vacate, set aside or correct the judgment or sentence of the trial court. Clemons challenged, as relevant, the jury selection proceedings, and made claims of prosecutorial misconduct. Importantly, in the motion, Clemons did not directly raise his current voir dire objections—the improper exclusion of death—qualified veniremembers—as independent substantive claims, but raised them only in conjunction with his ineffective assistance of counsel assertions. The reason for this approach was his trial counsel's failure to adequately preserve these claims at trial and in the motion for new trial. On March 18, 1996, the Rule 29.15 motion was denied. The Missouri Supreme Court affirmed the conviction, sentence, and denial of post-conviction relief. State v. Clemons, 946 S.W.2d 206 (Mo.1997), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997) (Clemons I).

In his current petition for habeas corpus, Clemons brought claims for ineffective assistance of trial counsel, prosecutorial misconduct, errors connected with the denial of the motion to suppress, and errors relating to jury selection and empaneling. Of the numerous claims for relief alleged in the voluminous pleading, the only ones before us pursuant to the state's appeal and under the certificate of appealability are Clemons's allegations relating to the prosecutor's closing argument (Claims 6A-E, 8 and 11 of the habeas corpus petition), and two voir dire claims—the exclusion of six veniremembers as not death-qualified (Claim 4B), and the exclusion of prospective juror Doss as not death-qualified (Claim 4A).

In Claim 4B, each of the six prospective jurors initially indicated that they could vote for the death penalty in a proper case. Upon further questioning, however, all indicated that if the evidence showed that Clemons did not actually push the women off the bridge, they would not vote for a death sentence. In effect, these prospective jurors indicated that they could not impose the death penalty under an accomplice-liability theory. Clemons claims the prosecutor incorrectly recited Missouri law by not including the element of cool deliberation or reflection in the hypothetical questions presented, and by injecting an improper robbery hypothetical into the interrogatories. This improper questioning, he argues, led to the erroneous exclusion of these six prospective jurors for cause in violation of Witherspoon.

The district court reached the merits of this claim, despite the state's procedural bar defense. The district court stated that, "I have carefully reviewed the record, and agree with Clemons that [Claims 4A & B] were properly preserved at trial, in the motion for judgment of acquittal, and on the consolidated appeal. The Missouri Supreme Court's finding otherwise is in error." Clemons II, 212 F.Supp.2d at 1119.

Reviewing Claim 4B on its merits, the district court found that in excluding these six prospective jurors, the trial court misapplied Witherspoon and Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (clarifying Witherspoon and holding that a veniremember can be stricken when his or her views on the death penalty would "prevent or substantially impair the performance of his duties as a juror") (internal quotations omitted). The district court found that the prosecutor had not accurately described accomplice-liability law and that, as a result, the trial court adjudication of these voir dire claims was an unreasonable application of Supreme Court precedent. Clemons II, 212 F.Supp.2d at 1122.

Claim 4A involved prospective juror Doss. The district court found that Doss was correctly dismissed for cause and denied relief on this claim. Initially Doss stated that he could never vote for the death penalty under any circumstances. But upon further questioning from the prosecutor, Doss equivocated. The trial judge, however, struck Doss for cause, stating that he had unequivocally indicated his inability to impose the death penalty. The district court found that the Missouri Supreme Court,¹

correctly identified the controlling federal law and I cannot say that it unreasonably applied the law or made an unreasonable determination of the facts. Doss's first answer was unequivocally that he could not apply the death penalty for religious reasons. His later equivocation is not sufficient to overcome the initial unequivocal statement, even though the trial judge may have misremembered the exact details of it.

Id. at 1121.

Finally, the district court found that most (Claims 6B-E and Claim 8) of Clemons's claims for prosecutorial misconduct were procedurally barred because they were not adjudicated by the state courts. Id. at 1123. The district court reached the merits of two of the claims because the Missouri courts had done so. These two claims were that the prosecutor threatened and intimidated a possible exculpatory witness (Michael Chapey) into not testifying (Claim 6A), and that the prosecution made improper comments during penalty-phase closing arguments (Claim 11). The district court denied these claims. Id. at 1125-27.

The state appeals the district court's adverse ruling on Claim 4B (the six purportedly death-qualified veniremembers), and the district court granted Clemons a certificate of appealability on Claim 4A (Doss) and Claims 6A-E, Claim 8, and Claim 11 (prosecutorial misconduct).

II. DISCUSSION

We review the district court's legal conclusions de novo, and its factual findings for clear error. Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001). Pursuant to the AEDPA's amendment's to 28 U.S.C. § 2254, a state prisoner may obtain federal habeas relief with respect to a claim that has been adjudicated on the merits in state court only when the state decision was either contrary to or involved an unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d).

The first step in evaluating a challenge to the state court's adjudication is to determine what, if anything, the Supreme Court has said on the subject. Kinder, 272 F.3d at 537-38. Next, we look carefully at the state court's decision under the AEDPA standards and will find the result "contrary to" clearly established federal law only if the court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concurring opinion of O'Connor, J., for the Court). And, an ...