Cooksey v. Delo

• Citation: 94 F.3d 1214
• Decision Date: 30 October 1996
• Docket Number: No. 95-3585,95-3585
• Parties: Percy E. COOKSEY, III, Appellant, v. Paul K. DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1214

94 F.3d 1214

Percy E. COOKSEY, III, Appellant, v. Paul K. DELO, Appellee.

No. 95-3585.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1996.

Decided Sept. 10, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 30, 1996.

James A. Stemmler, St. Louis, MO, argued, for appellant.

Stacy L. Anderson, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Percy E. Cooksey III is a Missouri prisoner serving a sentence of life plus sixty years after being convicted by a jury of the unlawful use of a weapon, kidnapping, forcible rape, first degree robbery, and three counts of armed criminal action. He applied to the District Court ¹ for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994). The District Court, adopting the report and recommendation of a Magistrate Judge, ² denied the application. Cooksey timely appeals, and we affirm.

On February 6, 1987, Cooksey attended a prayer service at the Greater Faith Baptist Church in St. Louis, Missouri. During a prayer circle, Cooksey took out an eighteen-inch knife and held it to the throat of the woman next to him. After terrorizing the captive audience, Cooksey withdrew to a vacant building where he raped the woman and stole her watch. Cooksey did not challenge the sufficiency of the evidence when he appealed his convictions in state court. Missouri v. Cooksey, 787 S.W.2d 324, 325 (Mo.Ct.App.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 681 (1991). Cooksey also did not seek post-conviction relief in state court.

In his petition for a writ of habeas corpus, Cooksey advanced the following five claims for relief: (1) the state trial court violated the Due Process Clause when it denied Cooksey's motion for disclosure of grand jury demographic data, which Cooksey sought in order to challenge the method used to select grand jurors in St. Louis; (2) the state trial court's local rule regarding probation recommendations violates the Due Process Clause and the Sixth Amendment right to a jury trial; (3) the state trial court violated the Due Process Clause when it based a sentence enhancement on a prior void conviction; (4) the state prosecutor violated the Due Process Clause when the prosecutor prevented Cooksey from deposing the principal female victim of his crimes; and (5) the cumulative effect of the foregoing constitutional violations resulted in a denial of both due process and effective assistance of counsel. On appeal, Cooksey argues that the District Court erred when it rejected his first four claims and, a fortiori, rejected his fifth claim as well. Only the first issue requires extensive analysis, and we now turn to that issue.

Prior to trial Cooksey filed a motion to dismiss the indictment, alleging that the grand jury had not been selected from a fair cross-section of the community because certain racial groups had been systematically excluded. See O'Neal v. Delo, 44 F.3d 655, 662 (8th Cir.) (defining constitutional fair cross-section requirements), cert. denied, --- U.S. ----, 116 S.Ct. 129, 133 L.Ed.2d 78 (1995). At the same time, Cooksey sought disclosure of demographic data relating to individuals selected for grand jury service during the last ten years. The state trial court denied the motion for disclosure of demographic information. Before the court ruled on the motion to dismiss the indictment, the state filed a motion to substitute an information for the indictment. Cooksey opposed the state's motion by filing a motion to dismiss and strike the information. The sole basis for his opposition to the filing of the information was that the motion to substitute was untimely. ³ The court granted the state's motion to substitute, and Cooksey was tried on the information. Cooksey did not make any further objection to the information nor did he appeal the trial court's denial of the motion to strike the information.

Under Missouri law, "an information charging the same offense charged in [a defective] indictment may be substituted therefor at any time before the jury is sworn." Mo. Rev. Stat § 545.300 (1994). The decision to substitute an information is within the discretion of the prosecutor, and the court has no power to control that discretion. Missouri ex rel. Lodwick v. Cottey, 497 S.W.2d 873, 880 (Mo.Ct.App.1973). Additionally, the prosecutor may substitute an information for an indictment even if the court has not issued an order finding the indictment to be defective. Missouri v. Green, 305 S.W.2d 863, 868 (Mo.1957). Missouri Revised Statutes § 544.250 provides that "a preliminary examination shall in no case be required ... in any case where an information has been substituted for an indictment as authorized by section 545.300." The Missouri Supreme Court in Green held that this language evinces "a legislative intent that the finding and return of an indictment, as evidence of probable cause, should be and are a sufficient and legal substitute for a preliminary examination." Green, 305 S.W.2d at 868-69. In sum, the substitution of an information in this case appears to conform to Missouri law on the subject, and Cooksey does not challenge his conviction on that basis. The issue Cooksey would have us decide is whether Missouri law comports with the requirements of the Due Process Clause.

In 1884, the Supreme Court handed down its landmark decision in Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). The Court held that neither the Fifth Amendment, which provides for the right to an indictment by a grand jury for serious criminal charges brought in federal court, nor the Fourteenth Amendment's Due Process Clause requires states to afford a defendant the right to be tried only upon an indictment by a grand jury. Id. at 521-22, 4 S.Ct. at 113-14. The Court stated that the right to indictment by a grand jury was not essential to preserving "fundamental principles of liberty and justice," id. at 535, 4 S.Ct. at 120, or guarding "the substantial interest of the prisoner," id. at 538, 4 S.Ct. at 122. Thereafter a number of states abolished the use of grand juries in state criminal cases. See Beale & Bryson, Grand Jury Law & Practice § 1.05 (1986). Nonetheless, the Due Process Clause still requires some form of pretrial screening such as the preliminary hearing available to Hurtado under then-applicable California law. Hurtado, 110 U.S. at 538, 4 S.Ct. at 122. Under that procedure, a magistrate was required to conduct a hearing to determine whether there was probable cause to believe that the accused had committed the crime charged. Id. Thus while the Due Process Clause does not require indictment by a grand jury, it clearly requires some pretrial screening of criminal charges. The Court has not reconsidered its holding in Hurtado over the years, see, e.g., Reed v. Ross, 468 U.S. 1, 16 n. 11, 104 S.Ct. 2901, 2910 n. 11, 82 L.Ed.2d 1 (1984), even though it has since recognized that many of the limits placed on the power of the national government by the first ten amendments were made applicable to the states by the Due Process Clause of the Fourteenth Amendment, see Albright v. Oliver, 510 U.S. 266, 271-74, 114 S.Ct. 807, 812-13, 127 L.Ed.2d 114 (1994).

As noted above, Missouri law does not provide for a preliminary hearing when an information is substituted for an indictment. Nothing in the record indicates (and the state does not claim) that Cooksey was afforded any type of pretrial screening other than the grand jury proceedings that he has challenged at every turn. Cooksey argues that the charges against him were not screened at all and that Missouri law, as applied in his case, violates the Due Process Clause of the Fourteenth Amendment because the indictment, which he alleges was invalid, is not "a sufficient and legal substitute for a preliminary examination," Green, 305 S.W.2d at 868-69. This argument, as we have stated it, may well have merit. We conclude, however, that Cooksey is barred from raising it in his federal habeas corpus proceedings because he failed to raise the issue in the state courts.

"A state prisoner seeking a writ of habeas corpus from a federal court must first fairly present his claims to the state courts in order to meet the exhaustion requirement of 28 U.S.C. § 2254(b)." Forest v. Delo, 52 F.3d 716, 719 (8th Cir.1995). When a...