Flieger v. Delo, 92-3386

• Decision Date: 07 April 1994
• Docket Number: No. 92-3386,92-3386
• Citation: 16 F.3d 878
• Parties: Robert FLIEGER, Appellant, v. Paul K. DELO, Superintendent, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 878

16 F.3d 878

Robert FLIEGER, Appellant, v. Paul K. DELO, Superintendent, Appellee.

No. 92-3386.

United States Court of Appeals Eighth Circuit.

Submitted June 18, 1993.

Decided Feb. 15, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied April 7, 1994.

Counsel who presented argument on behalf of the appellant was Curtis Blood, Collinsville, IL.

Counsel who presented argument on behalf of the appellee was Stephen D. Hawke, Jefferson City, MO.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

BOWMAN, Circuit Judge.

Robert Elmer Flieger was convicted of murdering Patricia Gradley. He appeals the District Court's ¹ denial of his petition for a writ of habeas corpus, and we affirm.

I.

Gradley and her son lived in an apartment immediately below an apartment in which Flieger lived with his son. Gradley's father owned the house that contained these apartments; in lieu of rent, Flieger performed a variety of maintenance on the house, including repairs to the trap door that separated the cellar from Gradley's apartment.

Flieger and Gradley dated for several years until they broke up in December 1984. He had proposed several times, but she refused to marry him. Gradley was hospitalized that month after breaking her ankle. While in the hospital, she was visited twice by Frank Joubert, a married man who was her son's counselor. Flieger was present when Joubert arrived for his second visit carrying flowers for Gradley. Although Joubert attempted to converse with Flieger, Flieger refused, and instead clenched his fists and turned and stared out the window and at the floor.

On the evening of March 17, 1985, Gradley's birthday, Gradley went out with her son and Joubert. When they returned to Gradley's residence, Flieger began photographing Joubert and Gradley together. After Joubert left, Flieger and Gradley angrily screamed at one another over the telephone. Flieger told Gradley that she should not date a married man and that he might tell Joubert's wife of the alleged affair, and Flieger's son testified that Flieger was furious as he threatened Gradley with her life. Gradley was so rattled after the telephone altercation with Flieger that she called her son's aunt and Joubert and told them that Flieger had threatened her life. Joubert attempted to convince Gradley to leave, but she refused to let Flieger scare her from her home.

The next morning, on March 18, 1985, Gradley took her son to school, then returned home. About one-half hour later, Shirley Spence, who worked outside on the other side of the street, observed Flieger hurriedly walking from the rear of the house, carrying clothing on hangers and what appeared to be a long object wrapped in newspaper. Although Flieger would chat for fifteen to twenty minutes each morning with Spence, he did not on this morning, and instead ignored Spence's calls. Flieger placed the items in the trunk of his car and drove off so quickly that he almost caused a collision at the corner. He drove past the house at least once that day, but he never stopped.

Gradley was found bludgeoned to death that afternoon. The rear basement door had been forcibly kicked open, and the trap door had been forced open. Nothing had been taken from the apartment, except perhaps a small amount of cash, although most rooms had been searched. Bones in both of Gradley's forearms were broken during her attempts to defend herself. Gradley's death was caused by several interconnected skull fractures the murderer inflicted upon her through repeated blows to her head with a blunt, possibly cylindrical, object. The medical evidence was inconclusive as to the time of Gradley's death, but it indicated that she was alive during the entire attack.

The police interviewed Flieger as part of their investigation. Flieger admitted telling Gradley the night before the murder that he was going to report her alleged affair with Joubert to Joubert's wife, but he did not tell the police of his death threat. He also indicated that he had taken clothing to the cleaners on the morning of the murder, but when he left the house that morning, he had driven in a direction opposite from the cleaning establishment he identified in his statement.

Several months later, Flieger married and moved in with Gloria Brooks. They were married and divorced before his trial. Flieger, in the presence of his son, told Brooks that Gradley got what she deserved and that her death was entirely Joubert's fault because Flieger had caught her and Joubert together at the hospital. On another occasion, Flieger brought into the house a long, heavy, metal flashlight that was made for police officers to use as both a flashlight and a nightstick. Flieger told Brooks, in the presence of her sister and brother-in-law, as he pounded the flashlight into the palm of his hand, that one could use the flashlight as a lethal weapon and get away with the murder. This so frightened Brooks that she hid the flashlight; although other flashlights were readily available, Flieger extensively searched the entire house for that particular flashlight. Flieger was unable to find the flashlight, and Brooks later turned it over to the police.

Flieger was indicted for Gradley's murder eighteen months after her death. The jury convicted Flieger of the first-degree murder of Gradley, and he was sentenced to life imprisonment without the possibility of probation or parole. Flieger appealed. While his direct appeal was pending, he filed pursuant to Missouri Supreme Court Rule 29.15 a motion for postconviction relief, which was denied after an evidentiary hearing. After consolidating his direct and Rule 29.15 appeals, the Missouri Court of Appeals upheld both his conviction and the denial of Rule 29.15 relief. State v. Flieger, 776 S.W.2d 25 (Mo.Ct.App.1989).

Flieger then filed in the District Court his petition for a writ of habeas corpus, claiming that he was denied due process because the evidence was not sufficient to support his conviction, his counsel was constitutionally ineffective, and he was denied a fair trial by the state trial court's evidentiary errors. On April 7, 1992, the District Court, pursuant to the Magistrate Judge's ² recommendation, denied Flieger's habeas petition. Flieger then served on April 16, 1992 a motion that requested reconsideration under Federal Rule of Civil Procedure 60(b)(6) or, in the alternative, was to serve as a notice of appeal and a request for a certificate of probable cause. The District Court treated this motion as one to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), noted that under Federal Rule of Civil Procedure 5(b) the motion was served when mailed and that it had been mailed timely, ³ and denied the motion on September 29, 1992. Flieger appealed on October 15, 1992.

II.

A.

Flieger's October 15 notice of appeal stated that he intended to "appeal to the Eighth Circuit Court of Appeals this Court [sic] order of September 29, 1992 dismissing this law suit [sic]." It did not specifically indicate that Flieger was appealing the District Court's April 7 ruling that denied his habeas petition. The state argues that, because Flieger's appeal does not challenge the District Court's September 29 denial of his motion for reconsideration, and instead complains only about the April 7 ruling, we should affirm the District Court's September 29 ruling. Moreover, the state contends, Flieger's April 16 notice of appeal in the alternative is not a legally sufficient notice of appeal of the April 7 ruling because the April 16 motion raised a Rule 59(e) motion before the District Court. Therefore, the state concludes, the District Court's April 7 ruling is not before this Court and we should disregard Flieger's challenges to the District Court's denial of his petition for a writ of habeas corpus. We are not persuaded by the state's argument.

A notice of appeal filed while a Rule 59(e) motion is pending is a nullity. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam). Accordingly, the state is quite right that Flieger's April 16 alternative notice of appeal is not in itself a legally sufficient appeal of the District Court's April 7 ruling. In this case, however, unlike in Griggs and the other cases the state cites, Flieger filed a timely notice of appeal after the denial of his April 16 Rule 59(e) motion. It is obvious that Flieger intended to appeal the April 7 ruling and that Flieger's errant failure to mention that ruling in his notice of appeal was inadvertent. Flieger substantially complied with the requirements of Federal Rule of Appellate Procedure 3(c), and his error did not mislead, surprise, or prejudice the state. Indeed, the state briefed all of the issues raised on this appeal, and it fully argued them at the oral argument. Flieger's efforts constituted "an effective, although inept, attempt to appeal." See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962).

B.

The District Court issued Flieger a certificate of probable cause to appeal because it found that Flieger's "appeal [was] taken in good faith." Memorandum and Order Denying Motion to Reconsider at 4. The state contends that the District Court applied the wrong standard when determining whether to issue the certificate to Flieger, and that therefore this Court should quash Flieger's certificate of probable cause and dismiss his appeal.

A state prisoner may not appeal a final order denying his petition for a writ of habeas corpus "unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." 28 U.S.C. Sec. 2253 (1988). To obtain a certificate of probable cause, a habeas petitioner must show more than just good faith or an absence of frivolity. Barefoot v. Estelle, 463 U.S. 880, 894, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983). Instead, the...