Foster v. Delo

• Decision Date: 07 November 1994
• Docket Number: No. 92-3557,92-3557
• Parties: Emmitt FOSTER, Appellant, v. Paul DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 873

39 F.3d 873

Emmitt FOSTER, Appellant, v. Paul DELO, Appellee.

No. 92-3557.

United States Court of Appeals,

Eighth Circuit.

Submitted May 24, 1994.

Decided Nov. 7, 1994.

Gino F. Battisti, St. Louis, MO (Robert T. Haar, on the brief), for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, En Banc.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Emmitt Foster was sentenced to death for the murder of Travis Walker. After his appeal failed, he filed a motion for post-conviction relief under former Missouri Rule 27.26. Mo.R.Crim.P. 27.26 (repealed and replaced with Mo.R.Crim.P. 29.15 in 1987). The Circuit Court of St. Louis County denied the motion, and the Missouri Court of Appeals affirmed the denial. Foster v. State, 748 S.W.2d 903 (Mo.App.1988). After exhausting his remedies in state court, Foster challenged the conviction and sentence by filing this petition for writ of habeas corpus alleging twenty-five constitutional defects in his trial. Since filing for relief in the district court, Foster has filed three state petitions for writ of habeas corpus, in 1988, 1992, and 1994, alleging grounds for relief that had not been raised in the earlier proceedings in state court. The district court considered Foster's petition on the state's motion for summary judgment and denied relief; Foster appealed. A panel of this court reversed and ordered the district court to issue a writ vacating the death sentence. Foster v. Delo, 11 F.3d 1451 (8th Cir.1994). We granted the state's request for rehearing, vacated the panel's opinion, and ordered rehearing en banc.

I.

Walker was murdered during the very early hours of November 20, 1983, after Foster and Michael Phillips entered, apparently on a ruse, the home Walker shared with Deann Keys, and robbed them of jewelry and other valuables. Phillips had telephoned Walker's home at approximately 2:00 a.m., claiming that he needed help with a flat tire. Walker and Phillips were friends and had known each other since childhood; Walker, Phillips, and Foster were teammates on a softball team. Keys also knew both Phillips and Foster, although she knew Foster as John Lee.

After the telephone call, Phillips arrived with Foster, and the two spoke with Walker; Keys remained in bed, but overheard parts of the conversation. Phillips soon entered the bedroom, pointed a gun at Keys, and ordered her into the living room. Keys went into the living room and saw Walker lying on the floor with Foster pointing a gun at his head. Foster and Phillips forced Keys to lie down next to Walker. Phillips began to search the victims' home for valuables and found some. He then demanded to know where the rest of the jewelry was. Walker told him that it was at Walker's mother's home. Phillips continued his search, but apparently found nothing more. He then told Keys and Walker that he and Foster were leaving and ordered the victims not to move or to attempt to pursue them. Keys heard a shot and apparently lost consciousness. When she regained consciousness she tried to find a neighbor, but was unsuccessful; she then tried to use the telephone, but the line was dead. She returned to her bedroom, and, convinced that she was near death, wrote the names "John Lee" (Foster's alias) and "Mike Philips [sic]" twice on an envelope. Police officers, who had been summoned by Keys's neighbor, arrived and found Keys still alive; Walker was already dead. An autopsy subsequently revealed that Walker had been shot four times in the head. Medical evidence revealed that Keys had also been shot four times in the head. Walker and Keys were shot with different guns. Keys survived and testified at trial, identifying Foster as one of her assailants, although she could not say whether Foster or Phillips or both did the shooting.

Foster did not testify at either the guilt or penalty phase of his trial. He was convicted of capital murder and sentenced to death in 1984. Phillips remained a fugitive until shortly before Foster's trial and was tried in 1985. He was convicted of felony-murder and was sentenced to life in prison.

II.

Of Foster's twenty-five grounds for relief, the panel found only one to be meritorious: it agreed that Foster's counsel had failed to inform him of his right to testify at the penalty phase of his trial and that this failure amounted to prejudicial ineffective assistance of counsel. The state argues that this claim and ten others are procedurally barred because Foster failed to raise them in his state petition for post-conviction relief. Although some of the ten claims are indeed barred, it is clear that Foster claimed that he was entitled to post-conviction relief in part because his trial counsel failed to call him to testify. This claim is therefore properly before us.

In order to be entitled to relief because of ineffective assistance of counsel, a petitioner must show both that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "An error by counsel even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Foster must also show that he was prejudiced by his counsel's ineffective performance: he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Foster argues that his attorney should have called him to testify in order to convince the jury not to impose capital punishment on him. He does not, however, tell us why he believes that there is a reasonable probability that the jury would have reached a different verdict if it had heard his testimony. In fact, at the evidentiary hearing held when the state court heard his motion for relief under Rule 27.26, Foster never even indicated what his testimony would have been had he taken the stand. Since it is incumbent upon a petitioner to show that he was actually prejudiced by his counsel's actions, we cannot grant relief.

Foster admits in his brief that he failed to show prejudice at his hearing for post-conviction relief, but urges us to consider this as yet another example of ineffective assistance of counsel. The performance of Foster's post-conviction counsel, however, even if it were shown to have been ineffective, could not provide a basis for issuing a writ of habeas corpus. There is no constitutional right to counsel in state post-conviction hearings; there can be, therefore, no constitutionally ineffective assistance that could justify issuing the Great Writ on this ground. Coleman v. Thompson, 501 U.S. 722, 751-53, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994).

III.

When a panel of this court reviewed this case, it found in favor of the state on twenty-four of Foster's claims. The state petitioned for rehearing of the one claim that it lost. Foster did not seek rehearing of the rejected claims, although his oral argument before this court made clear that he had not abandoned them. We will ordinarily consider on rehearing only those issues specifically raised in a petition, and will depart from this rule only on the rarest of occasions. Brown v. Stites Concrete, Inc., 994 F.2d 553, 557 (8th Cir.1993) (en banc). Because Foster's petition for relief challenges the propriety of his execution, we believe that this case presents circumstances warranting a review of his remaining claims.

A.

In addition to his claim that his counsel was ineffective for not calling him to testify, Foster argues that his counsel was ineffective for several other reasons.

Foster claims that his trial counsel was ineffective because he did not attempt to rehabilitate two members of the venire who stated on voir dire that they could not, in any circumstances, consider imposing capital punishment. Foster concedes, citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), that a prosecutor may exclude jurors who profess an inability to impose the death penalty. See also Hulsey v. Sargent, 865 F.2d 954 (8th Cir.1989), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 270 (1989). The prosecutor asked each of the jurors in question whether, after having been instructed as to the law and after hearing the evidence, they could not in any circumstances consider the death penalty. They answered, unequivocally, that they could not consider it. In the face of such clear answers, it was reasonable for Foster's trial counsel to conclude that there was no point in attempting to rehabilitate these two jurors.

Foster makes the related argument that trial counsel was ineffective for failing to object to the prosecutor's questioning of the venire with respect to capital punishment. In reviewing this argument as part of Foster's request for post-conviction relief, the Missouri Court of Appeals found that "[t]he prosecutor's questions were not a request for a commitment from prospective jurors to a future course of action, but constituted a proper inquiry into whether the venire members would be able to follow the court's instructions with regard to assessing punishment." Foster, supra, 748 S.W.2d at 907. The record adequately supports the findings of the state court, which are, of course, therefore entitled to a presumption of correctness. Sumner v. Mata, 455 U.S. 591, 102...