Francis v. Miller

• Decision Date: 06 March 2009
• Docket Number: No. 08-1492.,08-1492.
• Citation: 557 F.3d 894
• Parties: Reva FRANCIS, Appellant, v. Jennifer MILLER; Chris Koster,<SMALL><SUP>1</SUP></SMALL> Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

557 F.3d 894

Reva FRANCIS, Appellant, v. Jennifer MILLER; Chris Koster,¹ Attorney General, Appellees.

No. 08-1492.

United States Court of Appeals, Eighth Circuit.

Submitted: December 9, 2008.

Filed: March 6, 2009.

Kent E. Gipson, Kansas City, MO, argued, for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., on the brief), for appellees.

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Reva Francis was convicted in a Missouri state court of second degree murder and armed criminal action in the shooting death of her husband, Tony Francis. The Missouri Court of Appeals affirmed her conviction but remanded the case to the trial court for a ruling on Ms. Francis's motion for a reduction of sentence based on her claim that she suffered from what is called battered spouse syndrome. See State v. Francis, 60 S.W.3d 662 (Mo.Ct. App.2001) (Francis I). When the trial court on remand imposed the same sentence, Ms. Francis moved for post-conviction relief, claiming ineffective assistance of counsel, see Mo. S.Ct. R. 29.15. The state trial court denied the motion and that decision was upheld on appeal, see Francis v. State, 183 S.W.3d 288 (Mo.Ct.App.2005) (Francis II). Ms. Francis then applied for a writ of habeas corpus in federal district court.² See 28 U.S.C. § 2254. The district court denied the application but granted Ms. Francis a certificate of appealability on her ineffective-assistance claims, which she raises in this appeal. We affirm.

I.

On the afternoon of the day that the shooting occurred, Ms. Francis's eighteen-year-old daughter, Roxanne Cummings, and Roxanne's boyfriend, Shane Ross, were in Ms. Cummings's bedroom when they heard "something hit the wall" and then a sound like a firecracker "pop." After the first "pop," Ms. Cummings heard her stepfather, Mr. Francis, yell and she heard another "pop" a short time later. When Ms. Cummings and Mr. Ross went to the kitchen, they saw Mr. Francis slumped over a chair. Because Ms. Francis and her daughter were "freaking out," Mr. Ross went outside and called 911. Francis I, 60 S.W.3d at 665 (internal quotation marks omitted).

When Officer Tony Yates arrived at the house where these events happened, he saw Ms. Francis standing in the kitchen. "She appeared distraught, was shaking, and was standing about two and half to three feet from the body of Tony Francis, which was slumped over a chair. There was a small pool of blood around the victim's head," but none appeared to be on Ms. Francis. Ms. Francis told the officer that "it was an accident [that] she accidentally shot her husband" with the "32-caliber semi-automatic handgun lying next to her purse." Id.

There was a hole in Ms. Francis's purse and testing showed that the gun had been fired while the muzzle was in contact with the side of the purse. Ms. Francis told Officer Yates that the gun was in her purse when it went off "through a struggle." After Officer Dan Loney arrived at the scene, Ms. Francis waived her Miranda rights and told him that she and her husband had been arguing, "that there was a struggle over her purse and there was a gun inside of her purse and that the gun went off." She said that they were sitting at the kitchen table when the first shot was fired, that Mr. Francis "attempted to get her purse from her and that the weapon was in the purse and it went off accidentally." Officer Loney twice asked Ms. Francis whether she had intentionally shot her husband and "[b]oth times she stated she did not." Id. at 665-66.

Evidence introduced at trial showed that the handgun had a heavy "trigger pull" of fifteen pounds and had to be "cycled" after inserting the magazine for a round to be fired, and a state witness testified that a "loosely held automatic pistol is unlikely to fire a second time and is likely to jam." The state also offered evidence that the weapon "had two safety mechanisms: a magazine safety, which prevented the trigger from being pulled if the magazine was removed[,] and a button on the left side of the handgun that had to be turned to the `off' position before the gun would fire." Id. at 666-67.

Ms. Francis was taken into custody and interrogated that evening for approximately six hours. After waiving her rights a second time, she made a written statement:

I came home around four p.m. Sunday night. We're s[i]tting ... at the dining room table going over bills and [our] checkbook.... He called the secretary to go over bills and I explained to him that I didn't like the gun in the house and I was taking it to Anita's or Lanna's house. He got mad and tried to get the gun out of my purse and my hand was in there, too. Then, the gun went off. I stand up with the gun in my left hand and with the purse in my right hand. Tony fell over the table and onto the chair. The gun went off one more time in my hand. I dropped the gun and my purse and fell to the ground. I yelled at Shane to call the police.

Id. at 666 (alteration in original).

At trial, an officer described Ms. Francis's response when the police asked her to show how the second shot had been fired: She said that "Tony fell over the chair. She had the gun in this hand, her hand on the right of the purse. She said, leave me the f[______] alone, pointed the gun down and then did this motion [demonstrating] with her hand, indicating the gun went off another time." The officer added that when Ms. Francis demonstrated how the gun discharged the second time, it appeared that "when [she] extended her arm out, she made a grasping motion with her hand, as if to fire the gun again." Id.

"The autopsy revealed that Mr. Francis suffered gunshot wounds to the back of the head, left shoulder and chest, caused by two bullets." A bullet entered his chest and moved slightly downward from left to right, front to back, penetrating his left lung, heart, and then the right lung before lodging under the skin. "A separate bullet entered the back of the head, exited, and ended up in Mr. Francis' right shoulder. The cause of death was listed as `multiple gunshot wounds.'" Id.

On appeal, Ms. Francis contends that she received ineffective assistance of counsel at her trial. She had three trial attorneys: She first hired Randell Wood, who acted as her chief trial attorney; Brian Gepford and Willard Bunch, who had significantly more criminal trial experience than Mr. Wood, were hired before trial to assist in the defense.

II.

Ms. Francis claims that trial counsel was ineffective in failing to investigate whether she suffered from battered spouse syndrome (BSS) by promptly obtaining an opinion from a psychiatrist, Dr. William Logan, and in failing to have Dr. Logan testify that she suffered from BSS and post-traumatic stress disorder in support of a claim of self-defense.³ BSS is "a type of post-traumatic stress disorder" that exhibits a "collection of symptoms including a highly fearful state, isolation, withdrawal, and a heightened sensitivity to situations that precede violence or an increase in violence" and occurs as a result of being subjected to physical abuse by one's spouse or domestic partner. State v. Edwards, 60 S.W.3d 602, 613 (Mo.Ct.App. 2001). The pertinent Missouri statute provides that "[e]vidence that the actor was suffering from the battered spouse syndrome shall be admissible upon the issue of whether the actor lawfully acted in self-defense." Mo.Rev.Stat. § 563.033.1 The state court ruled in limine that Ms. Francis could not simultaneously pursue defenses of accident and self-defense. (The trial court ruled that counsel could not argue that Ms. Francis performed the same act both accidentally and in self-defense, but the court did not forbid counsel from presenting what we later refer to as a hybrid defense, i.e., that she fired one shot accidentally and the other in self-defense.)

A.

Ms. Francis maintains that counsel should have investigated her mental state by retaining Dr. Logan for an opinion before deciding on trial strategy, a claim that the state contends we may not review because the state court rejected it on state procedural grounds. Federal courts may not grant a petition for habeas corpus if a state court has denied the asserted claim "pursuant to an independent and adequate state procedural rule ... unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Lee v. Kemna, 534 U.S. 362, 375-76, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002).

The Missouri Court of Appeals refused to address the merits of Ms. Francis's failure-to-investigate claim because she did not include it in her post-conviction motion filed under Mo. S.Ct. R. 29.15. Francis II, 183 S.W.3d at 297-98. Ms. Francis's motion asserted that counsel was ineffective for failing to call Dr. Logan as a witness regarding his diagnosis of battered spouse syndrome but did not mention a failure to investigate. We do not believe, as Ms. Francis maintains, that the state court's opinion merely "not[ed] a possible procedural defect." The court specifically found that her motion did "not assert that trial counsel was ineffective for failing to investigate" a battered spouse defense, observed that "claims which were not presented to the motion court cannot be raised for the first time on appeal," and concluded that "Ms. Francis cannot now claim that her trial counsel was ineffective for failing to investigate whether Dr. Logan's testimony would have supported a battered spouse defense." Id. (emphasis in original) (internal quotation marks and citation omitted).

Ms. Francis has asserted neither cause nor prejudice and does not maintain that a miscarriage of justice occurred. Because the state court relied on an...