Gilmore v. Armontrout, s. 88-1378

• Decision Date: 21 February 1989
• Docket Number: Nos. 88-1378,88-1517,s. 88-1378
• Citation: 867 F.2d 1179
• Parties: George C. GILMORE, Appellee, v. Bill ARMONTROUT, Appellant. George C. GILMORE, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1179

867 F.2d 1179

George C. GILMORE, Appellee, v. Bill ARMONTROUT, Appellant.

George C. GILMORE, Appellant, v. Bill ARMONTROUT, Appellee.

Nos. 88-1378, 88-1517.

United States Court of Appeals,

Eighth Circuit.

Feb. 21, 1989.

Prior report: 8th Cir., 861 F.2d 1061.

Before LAY, Chief Judge, HEANEY, ^* Senior Circuit Judge, and McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges.

ORDER DENYING PETITION FOR REHEARING EN BANC.

The petition for rehearing en banc has been considered by the court and is denied by reason of the lack of majority of active judges voting to rehear the case en banc. Chief Judge Lay, Judges Heaney and McMillian, dissent from the denial of the petition to rehearing the case en banc.

The petition for rehearing is also denied by the court.

LAY, Chief Judge, with whom HEANEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge, join, specially dissenting.

I respectfully dissent.

The legal prejudice involved in the prosecutor's misleading and inaccurate argument clearly undermined the accuracy of Gilmore's sentencing process. The procedural bar of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is applicable only where the claim is "devoid of [constitutional deficiencies which] undermine[ ] the accuracy of the guilt or sentencing determination." Smith v. Murray, 477 U.S. 527, 538-39, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). As such, the principles of Wainwright do not apply in this case. ¹ Id. Furthermore, the error of counsel in failing to make a contemporary objection to the constitutional error involved was so egregious and prejudicial in and of itself that it clearly constituted ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I find totally inappropriate the following emphasized portion of the prosecuting attorney's closing argument:

If you put this man in the penitentiary for a period of fifty years without probation--or without parole, you haven't punished him. He's been to the penitentiary before. In fact, he's escaped from it. And also you have absolutely no guarantee that the legislature down the road, here, won't change its mind, that they won't pass another law saying that you can let someone who's been convicted like this defendant out of jail before the fifty years are up, or the governor could commute his sentence.

The panel opinion concluded that "no impropriety was committed in th[is] matter sub judice," citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). This conclusion is in error. Additionally, the panel ignored the district court's analysis of Missouri cases and held that Missouri case law does not bar such an argument. This was likewise clear error.

Two Supreme Court cases address this issue: Ramos, 463 U.S. 992, 103 S.Ct. at 3448, and Caldwell, 472 U.S. 320, 105 S.Ct. at 2635. In Ramos, the United States Supreme Court held that a California law requiring jury instruction indicating that a sentence of life without parole could be commuted by the Governor did not violate the eighth and fourteenth amendments. In so holding, Ramos did not go so far as to mandate use of such an instruction. Rather, "[t]he Court repeatedly emphasized that the instruction was a permissible choice for the [S]tate to make." State v. McDonald, 661 S.W.2d 497, 518 (Mo.1983) (en banc) (emphasis in original) (Blackmar, J., concurring in part and dissenting in part). ² The panel feels that Gilmore's reliance upon Caldwell is misplaced because the comments here were not, in their opinion, misleading. In addition, the panel places emphasis, via Caldwell, on the fact that the trial court in the present case submitted a curative instruction. ³ I disagree with both of these assessments.

Ramos holds that a Governor's power of commutation of a life sentence is not an improper consideration for a jury. This is because such a statement, although admittedly speculative in nature, is factually accurate and not misleading. Ramos, 463 U.S. at 1004 & n. 19, 1009, 1012, 103 S.Ct. at 3455 & n. 19, 3457, 3459. In the present case the argument of the prosecutor tells the jury that in addition to the Governor's power to commute the sentence, the legislature may possibly do the same. This is clearly inaccurate and misleading.

In Missouri, only the executive branch has the power of clemency to commute a sentence. Mo. Const. art. IV, Sec. 7; see also Mo.Rev.Stat. Sec. 217.800 (1982); State v. Sloss, 25 Mo. 291 (1857) (held pardoning power belongs exclusively to the executive branch of government and cannot be exercised by the legislative branch); State v. Todd, 26 Mo. 175 (1857) (same); State ex. rel Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716 (1947) (en banc); Durham v. State, 751 S.W.2d 808 (Mo.Ct.App.1988). To suggest that the legislature has the authority to, and possibly will, "pass another law saying that you can let someone who's been convicted like [Gilmore] out of jail before the fifty years are up" is therefore not only a misleading statement, it is factually inaccurate. Such an idea has never been recorded in Missouri. Indeed such an attempt was explicitly struck down by the Supreme Court of Missouri in the companion cases of Sloss and Todd. In 1857 the Missouri general assembly passed an act that purported to relieve persons from the penalties for violation of a then-existing dram shop act. The court held this attempted exercise of the pardoning power by the legislature unconstitutional, noting: "There can be no question as to the nature of the act under consideration. It is as effectually a pardon as though it were one in form under the great seal of the state. Its being clothed with the forms of legislation can not vary its nature and effect." Sloss, 25 Mo. at 294. See also Todd, 26 Mo. 175 (1857) (citing with approval the reasoning articulated in Sloss ).

Nor should the statement be reconciled to harmless speculation. The jury is told that in addition to the Governor another branch of state government may reduce Gilmore's possible life sentence and let him out on the streets. This conveys the false, mental picture to the lay juror that there exist two distinct and independent possibilities that Gilmore's life sentence would be commuted. This clearly enhances the possibility that the jury will provide the death sentence not because the defendant's crime justifies it, but because the defendant has an even greater possibility of having a life sentence commuted at some time in the future.

I respectfully submit the prosecutor's statement is not accurate and is clearly misleading. It is unconstitutional under Caldwell. To hold that petitioner has not been prejudiced is to ignore both state and Supreme Court opinions. This injustice warrants the full review of this court en banc. I therefore dissent from the denial of the rehearing en banc.

* The HONORABLE GERALD W. HEANEY assumed senior status on January 1, 1989.

1 The panel holds that an "adequate and independent procedural bar" was erected because Gilmore did not raise his claim concerning the prosecuting attorney's closing argument in the appeal from the denial of his Rule 27.26 post-conviction motion. The panel holds the cause and prejudice analysis of Wainwright applicable to post-conviction appellate proceedings. I take issue with these determinations. I realize that the panel is bound by our prior ruling in Stokes v. Armontrout, 851 F.2d 1085 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989). However, there is no analysis submitted in Stokes which addressed extending the application of Wainwright and such application, in my view, is fundamentally unsound. This issue should be fully aired before the entire court en banc.

The issue at hand arises where a claim of ineffective assistance of counsel was omitted in the post-conviction proceeding. The basis of the ineffective assistance claim itself arises by reason of original counsel not raising a constitutional claim at trial or on appeal. Suffice it to say the Supreme Court has upheld the applicability of the Wainwright bar for failure to raise a claim on direct appeal by a one vote margin. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). The Supreme Court has never, to date, applied Wainwright in a post-conviction context.

The reasons to apply a procedural bar for failing to raise a claim in a post-conviction hearing are much more attenuated than in a direct criminal proceeding. The same state interests are not applicable. First, the state need not even provide a post-conviction proceeding. Second, several of the states, including Missouri, allow only one post-conviction proceeding. Thus inadvertance or inexperience of appointed lawyers in state post-conviction proceedings may weigh heavily to prejudice a petitioner's constitutional rights. I have no disagreement with application of a waiver rule under narrow circumstances. See Wayne v. White, 735 F.2d 324, 325 (8th Cir.1984) (federal habeas petitioner who deliberately by-passed raising a specific claim in initial post-conviction petition held procedurally barred). However, the deliberate by-pass rule requires a knowing waiver by the petitioner and, as Wainwright makes clear, such a rule is clearly distinguishable from a cause and prejudice test.

Analysis of the policies behind the contemporaneous objection rule and the need for adequate appellate review demonstrate that the successive petition rule under Rule 27.26 serves totally different purposes. I respectfully submit these concerns do not provide an adequate state interest to bar federal consideration of a constitutional claim. The basic concern of the state is to encourage post-conviction petitioners to consolidate all constitutional claims into one petition so as to avoid successive or...