Gary v. Dormire, 00-2187

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtStrom
Citation256 F.3d 753
Parties(8th Cir. 2001) DAVID GARY, APPELLANT. v. DAVE DORMIRE, APPELLEE. Submitted:
Docket NumberNo. 00-2187,00-2187
Decision Date15 February 2001

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256 F.3d 753 (8th Cir. 2001)
No. 00-2187
Submitted: February 15, 2001
Filed: July 6, 2001

Appeal from the United States District Court for the Eastern District of Missouri

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Before Bowman, Loken, Circuit Judges, and Strom,* District Judge.

Strom, District Judge

David Gary appeals from the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.


On September 9, 1989, at approximately 2:30 a.m., David Gary (petitioner) visited his estranged wife to explore the prospect of reuniting. His efforts at reconciliation proved unsuccessful, and the conversation ended with the petitioner striking his estranged wife in the mouth. Noticing that she was bleeding, he drove her to the hospital. At the hospital petitioner, having attracted the attention of security guards, left the hospital and made his way to his car. He rejected a security officer's suggestion he exit the car and, noticing that the police were arriving, sped out of the parking lot.

St. Louis police located petitioner's car several hours later and took up pursuit. The petitioner tried eluding police, and a high-speed chase ensued. The chase ended tragically when petitioner crashed into a police squad car barricade while traveling over one hundred miles per hour. He survived the crash. The police officer sitting in the squad car he struck was killed on impact. In a post-accident inventory of the petitioner's car, police recovered empty and full beer cans and a bottle of hard liquor.

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Petitioner was tried on charges of first-degree murder, first-degree assault, second-degree assault, third-degree assault, and two counts of armed criminal action. He was convicted on all charges. The conviction was reversed, however, because of the presence of a former St. Louis police officer on the jury. See State v. Gary, 822 S.W.2d 448 (Mo. Ct. App. 1991). Petitioner was retried.

[At trial he] defended under the theories of diminished capacity and lack of premeditation. [Petitioner] testified in his own defense. [He] stated that he was extremely upset and wanted to kill himself [. . .]To support his theory of diminished capacity, [he] offered the expert testimony of Dr. Bruce Harry, a psychiatrist. Dr. Harry diagnosed [Petitioner] as suffering from major depression and the less severe depressive condition of dysthymia at the time of Officer McNew's death. Dr. Harry said his diagnosis was based on prior medical and psychological records, police reports, accounts from persons with knowledge of [Petitioner's] behavior, and statements [he] made [. . .] during Dr. Harry's examination of him. Dr. Harry's opinion was that the collision "was the result of major depression."

State v. Gary, 913 S.W.2d 822, 826-28 (Mo. Ct. App. 1995). The prosecutor offered evidence the petitioner consumed and possessed alcohol on the day of the events. "[He] explained his purpose for offering evidence of alcohol was to undermine the Defendant's diminished capacity theory: My burden is not only of proof beyond a reasonable doubt on the elements but persuasion that the defense offered is ludicrous and is of no merit." Id. at 828 (internal quotation marks omitted). At the close of trial, in Jury Instruction No. 17 (patterned after MAI-CR3d § 310.50), the trial court instructed the jury that:

The state must prove every element of the crime beyond a reasonable doubt. However, in determining the defendant's guilt or innocence, you are instructed that an intoxicated condition from alcohol will not relieve a person of responsibility for his conduct.

Id. The jury convicted petitioner of first-degree murder (Mo. Rev. Stat. § 565.020.1), second-degree assault (Mo. Rev. Stat. § 565.060), and two counts of armed criminal action (Mo. Rev. Stat. § 570.015). He was sentenced to life imprisonment without the possibility of probation or parole for the murder, ten years for the assault, and five years for each of the armed criminal actions.

Petitioner filed for post-conviction relief pursuant to Mo. Sup. Ct. R. § 29.15. His motion was denied. The Missouri Court of Appeals affirmed the petitioner's conviction and sentence and the denial of post-conviction relief. Gary, 913 S.W.2d at 822. The United States Supreme Court denied certiorari. See Gary v. Missouri, 519 U.S. 827, 117 S.Ct. 91 (Mem), 136 L.Ed.2d 47 (1996).

Petitioner filed a pro se habeas petition in United States District Court, Eastern District of Missouri, pursuant to 28 U.S.C. § 2254. His original petition raised four claims. Counsel was appointed, and an amended petition was filed, raising two additional claims.

The district court denied the claims raised in the pro se petition as procedurally defaulted. The claims raised in the amended petition were denied on the merits. A certificate of appealability was granted with respect to the two claims raised in the amended habeas petition.


On appeal from the denial of a petition for a writ of habeas corpus, the district

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court's conclusions of law are reviewed de novo and its factual findings are reviewed for clear error. Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir. 2000); James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 2000); Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir. 1999). A statutory presumption of correctness attaches to the State court's findings of fact. See 18 U.S.C. § 2254(e)(1); see also Thompson v. Keohane, 516 U.S. 99, 109-11 (1995); and Weaver v. Bowersox, 241 F.3d 1024, 1031 (8th Cir. 2001); and Leisure v. Bowersox, 990 F.Supp. 769, 806 (E.D.Mo. 1998).

The two issues presented in this appeal are:

1. Whether Mo. Rev. Stat. § 562.076.3 violates the due Process Clause of the Fourteenth Amendment of the United States Constitution.

2. Whether MAI-CR3d § 310.50 required the jury that convicted Gary to presume that he acted knowingly and after deliberation, in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

The district court evaluated both of the petitioner's claims under 28 U.S.C. § 2254(d).1 It ultimately denied habeas relief, concluding that petitioner had "failed to show that the decisions of the trial court and the Court of Appeals are contrary to, or an unreasonable application of, Supreme Court precedent."

For relief to issue pursuant to § 2254(d), a habeas petitioner must demonstrate that the State court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined

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by the Supreme Court of the United States."2 28 U.S.C. § 2254(d)(1). A State court decision is "contrary to" clearly established federal law if (1) "the state court applies a rule that contradicts the governing law set forth in [United States Supreme Court] cases" or, (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nonetheless arrives at a different result[. . .]" Williams v. Taylor, 529 U.S. 362, 406 (2000) (O'Connor, J., concurring); see also Closs v. Weber, 238 F.3d 1018, 1020 (8th Cir. 2001); and Copeland v. Washington, 232 F.3d 969, 974 (8th Cir. 2000). Under the "unreasonable application" prong, we determine whether the state court's application of clearly established federal was objectively unreasonable. Williams, 529 U.S. at 365; Carroll v. Schriro, 243 F.3d 1097, 1099 (8th Cir. 2000). "A state-court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case certainly would qualify as a decision involving an unreasonable application of . . . clearly established Federal law." Williams, 529 U.S. § 2254(d) (O'Connor, J., concurring); see Simmons v. Bowersox, 235 F.3d 1124, 1130 (8th Cir. 2001); and McReynolds v. Kemna, 208 F.3d 721, 723 (8th Cir. 2000). With these principles in mind we address the petitioner's claims in turn.

1. Does Mo. Rev. Stat. § 562.076.3 violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution?

Section 562.076 provides, in its entirety:

1. A person who is in an intoxicated or drugged condition, whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct.

2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition.

3. Evidence that a person was in a voluntarily intoxicated or drugged condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when evidence that a person was in a voluntarily intoxicated or drugged condition has been received into evidence.

Mo. Rev. Stat. § 562.076 (Michie 1995).

According to the Missouri Supreme Court, there are two aspects to Missouri's rule on voluntary intoxication evidence . Id. at 482. First, voluntary intoxication is not per se proof of inability to form a culpable...

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