Foster v. Delo

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and JOHN R. GIBSON; BRIGHT; JOHN R. GIBSON
• Citation: Foster v. Delo, 11 F.3d 1451 (8th Cir. 1994)
• Decision Date: 22 February 1994
• Docket Number: No. 92-3557,92-3557
• Parties: Emmitt FOSTER, Appellant, v. Paul DELO, Appellee.

Page 1451

11 F.3d 1451

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

No. 92-3557.

United States Court of Appeals Eighth Circuit.

Submitted March 17, 1993.

Decided Dec. 15, 1993.

Order Granting Rehearing and Rehearing

En Banc and Vacating Opinion

Feb. 22, 1994.

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

Stephen D. Hawke, Jefferson City, MO, argued, for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

BRIGHT, Senior Circuit Judge.

Emmitt Foster appeals the denial of his petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. He was convicted of capital murder ¹ in the Circuit Court of St. Louis County, Missouri and sentenced to death. Foster raises numerous allegations of error, which fall into three general categories: (1) that the district court improperly found many of his claims procedurally barred; (2) that the district court improperly rejected various claims of ineffective assistance of counsel; and (3) that the district court erred in denying relief for assorted state court errors.

We determine that the district court erred in failing to conclude that Foster's counsel provided ineffective assistance regarding Foster's right to testify at the punishment phase of Foster's case. Accordingly, we direct the district court to issue the writ vacating Foster's death sentence. We leave the State of Missouri the option of having Foster resentenced for first-degree murder, or seeking a new hearing on the penalty phase of the capital murder case. As to all other alleged errors, we reject them for the reasons set forth in the magistrate judge's findings adopted by the district court.

I.

Foster's underlying conviction for capital murder is based on events which occurred in the early morning of November 20, 1983. The state court's findings of fact rely in large part on the testimony of DeAnn Keys, who lived with the murder victim, Travis Walker.

Around 2:00 a.m. on November 20, 1983, Walker received a telephone call from Michael Phillips, a companion from a local softball team whom he had known since childhood. Phillips told Walker he needed assistance with a flat tire. Keys remained in bed and Walker met Phillips and Foster, another companion from the softball team, outside the apartment. Keys next heard the men conversing in the living room and heard Phillips ask to use the phone. After the call, Phillips asked to use the bathroom. He did not enter the bathroom, however, and Keys heard Walker say, "Damn, man, you are tripping." Phillips then entered the bedroom and ordered Keys into the living room at gunpoint.

In the living room, Phillips forced Keys to lie next to Walker. Foster then held Walker and Keys at gunpoint while Phillips searched the bedroom for valuables. After five minutes of searching, Phillips questioned Walker and Keys about their jewelry, at one point placing his pistol in Keys' ear. After concluding he had found all their valuables, Phillips moved toward the main door. Phillips told the two that he and Foster, who was still standing near Walker, were leaving and should not be followed.

Keys then heard and felt a gunshot and lost consciousness. When she regained consciousness, Keys realized she was bleeding from her head. She went to a neighboring apartment to seek help, but found no one. Returning home, she attempted to call the police, but the phone was dead. Fearing she would soon die, Keys wrote twice on an envelope "Mike Philips [sic]" and "John Lee," the name by which she knew Foster.

Responding to a neighbor's phone call, the police arrived to find Walker dead and Keys lying on the bed with a fractured skull and jaw, and several broken facial bones and teeth. Each had received four gunshots to the head.

Keys later identified photos of Phillips and Foster as the assailants. Forensic and ballistics analysis established that the bullets which killed Walker came from a different weapon than those that injured Keys, thus indicating one of the criminals killed Walker, while the other wounded Keys. Police never recovered the weapons.

Phillips and Foster were tried separately in the Circuit Court of St. Louis County. A jury convicted Phillips of first-degree murder ² and sentenced him to life imprisonment without the possibility of parole.

During the guilt phase of Foster's bifurcated jury trial, the defendant, on counsels' advice, did not testify in his own defense. Counsel did call eight witnesses to support Foster's alibi. The jury found Foster guilty of capital murder. At the punishment phase of the trial Foster again did not testify. The jury recommended a sentence of death, and the judge followed the jury's recommendation. Foster thereafter appealed to the Missouri Supreme Court, which affirmed his conviction. State v. Foster, 700 S.W.2d 440 (Mo banc 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).

Foster pursued post-conviction relief under Missouri Supreme Court Rule 27.26. ³ Among other claims, Foster asserted that he was denied his right to testify during the penalty phase of the trial. After an evidentiary hearing, the circuit court denied collateral relief. Foster appealed, and the Missouri Court of Appeals affirmed. Foster v. State, 748 S.W.2d 903 (Mo.Ct.App.1988).

Foster then filed a pro se petition for a writ of habeas corpus with the United States District Court for the Eastern District of Missouri. The district court appointed counsel, and Foster filed an amended petition. The district court referred the case to a United States magistrate judge who, without holding an evidentiary hearing, recommended the denial of Foster's petition. The district court adopted the magistrate judge's report and denied the petition. On November 4, 1992, Foster filed this timely appeal. We reverse the district court's decision denying habeas relief on the issue of ineffective assistance of counsel based on counsels' failure to advise defendant of his right to testify at the penalty phase. We affirm on all other issues.

II.

Foster contends that counsel violated his fundamental constitutional rights by waiving his right to testify at the penalty phase without first obtaining his informed consent. Foster claims that even though he desired to testify, counsel never informed him that he could do so.

Initially the Government asserts that Foster is procedurally barred from raising this claim of ineffective assistance of counsel. The Government bases its argument on the Missouri appellate court's failure to find any indication that Foster desired to testify or that he was misled by counsel or ignorant of his right to testify. The Government contends this factual finding is entitled to a presumption of correctness. Furthermore, even if Foster properly may seek habeas relief on this ground, the Government argues that Foster failed to demonstrate prejudice, and thus cannot prove ineffective assistance of counsel.

Foster's claim of ineffective assistance of counsel, based on a violation of his right to testify, was not procedurally defaulted because he raised it before the state court in his Rule 27.26 motion and at the evidentiary hearing. For purposes of Sec. 2254, the court of appeals may review claims alleging essentially the same facts and legal theories presented before the state court. Kenley v. Armontrout, 937 F.2d 1298, 1302-03 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). The state appellate court rejected the ineffective assistance claim on the ground that Foster failed to show that his failure to testify prejudiced the outcome of the proceeding. Foster, 748 S.W.2d at 908. Consequently, the state court had an opportunity to rule on Foster's claim of ineffective assistance of counsel relating to denial of his right to testify, and thus the claim properly came before the district court. See Laws v. Armontrout, 863 F.2d 1377, 1392 (8th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). The Report and Recommendation of United States Magistrate Judge, adopted by the federal district court, rejected Foster's sixth amendment claim for failure to prove prejudice. ⁴

Because Foster contends his counsel failed to inform him of his right to testify and thus failed to protect that right, we analyze his claim as one of ineffective assistance of counsel. See United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Foster must show that his counsel performed deficiently and that the substandard performance prejudiced the outcome of the proceeding. Id. at 687, 104 S.Ct. at 2064.

Foster's lead counsel during the guilt phase, Bill Aylward, stated at the Rule 27.26 hearing that a plea for mercy would be inconsistent with Foster's alibi defense during the guilt phase. Accordingly, he did not recommend that Foster testify during the penalty phase. (Post-Conviction Relief Tr. [hereinafter PCR Tr.] Vol. II at 11-13.) Also present at the post-conviction hearing was Assistant County Public Defender Peter Dunne, Foster's lead counsel at the penalty phase. Dunne testified on direct examination, as a witness for the State, as follows:

Q [Mr. Waldemer, counsel for State of Missouri] Did you discuss with Mr. Foster the possibility of his testifying?

A That subject came up more than once, yes.

Q What was the substance of those discussions?

A Emmitt agreed with us that because of his priors and the fact that he would be impeached with them if he did testify that it probably would be better if he did not.

Q Did you explain to Emmitt what would take place during the penalty phase should it be reached?

A Yes.

Q Did you explain to Emmitt he had a right to testify during the trial if he wanted to?

Ms. Soffer [Counsel for Foster]: Objection, your...