Cole v. Roper

• Decision Date: 22 September 2008
• Docket Number: No. 4:05CV131 CDP.,4:05CV131 CDP.
• Citation: 579 F.Supp.2d 1246
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Andre COLE, Petitioner, v. Donald P. ROPER, Respondent.

579 F.Supp.2d 1246

Andre COLE, Petitioner, v.Donald P. ROPER, Respondent.

No. 4:05CV131 CDP.

United States District Court, E.D. Missouri, Eastern Division.

September 22, 2008.

Order and Memorandum Denying Motion to Alter or Amend Judgment October 27, 2008.

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Joseph W. Luby, Public Interest Litigation Clinic, Lori Leon, Kansas City, MO, for Petitioner.

Andrew W. Hassell, Attorney General of Missouri, Stephen D. Hawke, Attorney General of Missouri, Assistant Attorney General, Bill L. Thompson, Missouri Supreme Court, Jefferson City, MO, for Respondent.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

PetitionerAndre Cole is currently on death row at the Potosi Correctional Center in Mineral Point, Missouri for the murder of Anthony Curtis.Petitioner was convicted by a jury and sentenced to death in St. Louis County, Missouri.Petitioner is also serving consecutive terms of life imprisonment for armed criminal action and assault, and thirty years for burglary.Because Petitioner is serving consecutive sentences, Missouri Attorney GeneralJeremiah W. Nixon is also a proper partyrespondent.

Before me is Petitioner's request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.He raises numerous claims of constitutional violations.Several of these claims are procedurally barred.All other claims fail on the merits.Accordingly, I will deny Petitioner's request for a writ of habeas corpus.I will, however, grant a certificate of appealability on several issues.

I.FACTUAL BACKGROUND

The following recitation of facts comes from the Missouri Supreme Court's opinion affirming the conviction and sentence in this case:

Appellant and his wife, Terri Cole(Terri), divorced in 1995 after eleven years of marriage.Appellant was ordered to pay child support for the care of the couple's two children but his periodic failure to make payments resulted in an arrearage totaling nearly $3000.00.Upon learning that a payroll withholding order was issued to his employer, Appellant commented to his coworkers, "Before I give her another dime I'll kill the bitch."

The first payroll deduction for child support appeared on Appellant's August 21, 1998 paycheck, and several hours later Appellant forced his entry into Terri's house by throwing an automobile jack through the glass door leading to the dining room.Anthony Curtis(Curtis), who was visiting Terri, confronted Appellant and asked him to leave.Appellant stabbed Curtis multiple times resulting in his death.Appellant then assaulted Terri, stabbing her repeatedly in the stomach, breasts, back, and arms, and her hands when she attempted to defend herself.Terri survived.

After the attack, Appellant fled the State, but he returned to St. Louis and surrendered to the police thirty-three days later.DNA analysis confirmed the presence of both victims' blood on the knife and the presence of Appellant's blood on the deck of Terri's home, the backyard fence, and in the street where Appellant's car had been parked.

State v. Cole,71 S.W.3d 163, 168-69(Mo.2002)(en banc), cert. denied,537 U.S. 865, 123 S.Ct. 261, 154 L.Ed.2d 108(2002).

II.PROCEDURAL BACKGROUND

On February 26, 2002, the Missouri Supreme Court rejected the ten claims brought by Petitioner in his direct appeal and affirmed his conviction and sentence.Cole,71 S.W.3d 163.Petitioner then brought a motion in the Circuit Court of St. Louis County, Missouri for post-conviction relief (PCR) pursuant to Mo. Sup.Ct. R. 29.15.Following an evidentiary hearing lasting three days, the trial court denied the 29.15 motion.The Missouri Supreme Court affirmed the denial of post-conviction relief on November 23, 2004.Cole v. State,152 S.W.3d 267(Mo.2004)(en banc), cert. denied,545 U.S. 1131, 125 S.Ct. 2940, 162 L.Ed.2d 872(2005).On August 8, 2005, Petitioner moved to recall the mandate on his direct appeal, or alternatively, for a writ of habeas corpus pursuant to Mo. Sup.Ct. R. 91.This motion related to claims numbered herein as 7, 8 and 16.The Missouri Supreme Court denied the motion on August 30, 2005.On July 11, 2006, Petitioner filed a second motion to recall the mandate which related to claim number 4.This motion was denied by the Missouri Supreme Court on August 22, 2006.

Petitioner now seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254, asserting that his conviction and sentence violate his Fifth, Sixth, Eighth and Fourteenth Amendment rights.Counsel have extensively briefed all the issues.

III.GROUNDS RAISED

Petitioner seeks habeas relief on the following grounds:

1.Petitioner's conviction of first-degree murder and sentence of death violate the Eighth and Fourteenth Amendments because there is insufficient evidence from which a rational jury could find, beyond a reasonable doubt, that the killing of Anthony Curtis was premeditated.

2.Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by the prosecutor's repeated and blatant misconduct on closing argument during the guilt phase of Petitioner's trial.

A.The prosecutor improperly injected his personal opinion regarding matters outside the record by stating that no other case"could be more important to the people of St. Louis County."

B.The prosecutor violated the presumption of innocence and stated his own personal opinion that anyone sitting in the defense chair is "usually there for a reason."

C.The prosecutor improperly argued facts not in evidence, unduly inflamed the jury, and falsely attacked Petitioner by calling him a "convicted killer."

D.The prosecutor's misconduct prejudiced Petitioner and made his trial fundamentally unfair.

3.Defense counsel was constitutionally ineffective for failing to object to the prosecution's improper closing argument during the guilt phase of Petitioner's trial.

4.Petitioner was denied due process of law, and black veniremember Vernard Chambers was denied equal protection of the law, when the prosecution was permitted to strike Mr. Chambers for pretextual reasons under Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986)—leaving no blacks on the jury after the State had stricken all three from the panel.

5.Trial counsel's failure to inform Petitioner of a specific plea offer constituted ineffective assistance of counsel and violated Petitioner's Sixth, Eighth and Fourteenth Amendment Rights.

6.Petitioner's Sixth, Eighth and Fourteenth Amendment rights were violated when the jurors deliberated prematurely in both phases of the trial.

7.Petitioner's convictions violate due process because he was visibly restrained throughout the guilt phase, but without any case-specific finding that such a step was necessary.

8.The trial court precluded Petitioner's counsel from making a full and complete opening statement, thereby denying Mr. Cole due process of law as well as the Sixth Amendment right to counsel.

9.Because the prosecution's "amended information" did not enumerate any statutory aggravating circumstances, it deprived Petitioner of his rights under the Sixth and Fourteenth Amendments by allowing him to be convicted of, and sentenced for, crimes other than those with which he was charged.

10.Trial counsel rendered constitutionally ineffective assistance by failing to investigate and present evidence that Petitioner suffered from an extreme mental and emotional disturbance at the time of his crimes—specifically, a major depressive disorder stemming from the traumatic events in his life in the months preceding the homicide, his personal and family history of depression, and his ongoing abuse of alcohol and steroids.Pretrial findings that Petitioner was "sane" at the time of the crimes and was "competent" to stand trial do not excuse counsel's failure to pursue the distinct issue of an extreme mental and emotional disturbance under Missouri's statutory mitigating circumstances.Petitioner was prejudiced by counsel's failure to discover and present this evidence.

11.Trial counsel was constitutionally ineffective for failing to discover and present non-expert evidence of Petitioner's troubled state of mind, as observed by his relatives, friends, co-workers and family physician.Counsel's strategy of "humanizing"Petitioner stemmed from an inadequate investigation of Petitioner's background and was not "reasonable" under Strickland.Petitioner was prejudiced by counsel's failures.

12.Trial counsel was constitutionally ineffective in failing to investigate and present evidence regarding Petitioner's positive adjustment to prison life, in violation of Petitioner's Sixth, Eighth and Fourteenth Amendment rights.Petitioner was prejudiced by counsel's failure.

13.Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by the prosecutor's misconduct on closing argument during the penalty phase of Petitioner's trial.The State's pervasive and blatant misconduct prejudiced Petitioner.

14.Trial counsel was constitutionally ineffective for failing to object to the prosecution's improper closing argument during the penalty phase.

15.The trial court violated Petitioner's Sixth, Eighth and Fourteenth Amendment rights by excluding relevant mitigating evidence that his family and friends would visit him in prison.

16.Because he was visibly restrained without any showing that such a measure was necessary, Petitioner was sentenced to death in violation of the Eighth and Fourteenth Amendments.

17.The "depravity of mind" aggravating circumstance upon which the State chiefly relied in seeking Petitioner's death sentence is impermissibly vague and excessively broad under the Eighth and Fourteenth Amendments.

18.Petitioner's Sixth, Eighth and Fourteenth Amendment rights were violated by InstructionNo. 21, which instructed the jury to consider all the evidence in deciding whether to impose a death sentence, while...