Grubbs v. Delo

• Decision Date: 08 November 1991
• Docket Number: No. 90-1664,90-1664
• Citation: 948 F.2d 1459
• Parties: Ricky Lee GRUBBS, Appellant, v. Paul DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1459

948 F.2d 1459

Ricky Lee GRUBBS, Appellant, v. Paul DELO, Appellee.

No. 90-1664.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1990.

Decided Nov. 8, 1991.

Motion for Abeyance of Proceedings Pending Motion to Recall

State's Mandate Denied Nov. 8, 1991.

Rehearing and Rehearing En Banc

Denied Jan. 31, 1992.

Charles A. Siegel, III, St. Louis, Mo., argued, for appellant.

Stephen David Hawke, Jefferson City, Mo., argued, for appellee.

Before BEAM, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOODS, ^* District Judge.

BEAM, Circuit Judge.

Ricky Lee Grubbs was convicted of capital murder by the state of Missouri and sentenced to death. He appeals the district court's denial of his habeas petition. We affirm the judgment of the district court.

I. BACKGROUND

On February 16, 1984, fire fighters were called to the scene of a mobile home fire in Miner, Missouri. They discovered the body of Jerry Russell Thornton inside the mobile home. Thornton's hands and feet were bound with neckties and he had suffered massive injuries: thirteen broken ribs, a cracked sternum, a laceration of the liver, damage to the small intestine, abrasions and lacerations on the face, a broken nose, a brain hemorrhage, and a large laceration of the neck, extending from the trapezius muscle to nearly the front of the left side of the neck.

The following day, Ricky Grubbs and his brother, Randy Grubbs, were arrested. The day after his arrest, Ricky Grubbs confessed to killing Thornton. In his written confession, Grubbs stated that he and his brother went to Thornton's trailer home on the afternoon of February 15. (Both brothers were acquainted with Thornton.) Grubbs said that he and his brother had been drinking beforehand and that Thornton was drinking when they arrived. According to Grubbs, shortly after they arrived, Thornton said that he did not like Grubbs and wanted him to leave. Grubbs said Thornton then came toward him and he became scared and struck Thornton repeatedly. When Thornton fell to the floor, Grubbs and his brother "hog-tied" him with some of Thornton's neckties and Grubbs cut Thornton's neck with a knife. Before leaving the trailer home, the brothers took thirty dollars and some food stamps. Grubbs stated in his confession that he and his brother returned the following day and set the fire to destroy any evidence that might incriminate them.

In November 1985, after a pretrial hearing, the Missouri circuit court determined that Grubbs's confession would be admissible as evidence. A trial was held a few weeks later, in December, and Grubbs testified in his own defense. The proceedings, however, resulted in a mistrial when one juror, during a poll of the jury after it had submitted its verdict to the court, denied that the guilty verdict was his. A change of venue was granted and a second trial was held in March 1986. Grubbs did not testify at this trial, but his confession--which was essentially the only direct evidence that he had committed the crime--was admitted against him. ¹ The jury convicted Grubbs of capital murder and he was sentenced to death.

In February 1987, the Missouri Supreme Court affirmed the judgment on direct appeal. State v. Grubbs, 724 S.W.2d 494 (Mo.) (en banc), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987). Grubbs then filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 27.26 (repealed effective January 1, 1988; now governed by Rule 29.15). The post-conviction court denied relief and the Missouri Supreme Court affirmed this judgment in November 1988. Grubbs v. State, 760 S.W.2d 115 (Mo.1988) (en banc), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 672 (1989). In June 1989, Grubbs filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1988). In late 1989, the district court issued an unpublished order and memorandum finding a number of Grubbs's claims to be procedurally barred. Grubbs v. Delo, No. 89-1048C(1), Order and Memorandum (E.D.Mo. Dec. 27, 1989). In April 1990, the district court issued a published order and memorandum addressing the merits of Grubbs's remaining claims and denying his petition. Grubbs v. Delo, 734 F.Supp. 395 (E.D.Mo.1990).

II. DISCUSSION

Our task in reviewing Grubbs's claims is made much easier by the district court's excellent memoranda. In fact, because the district court did its work very thoroughly and competently--and because many of Grubbs's claims are without merit--it is unnecessary for us to discuss at length several issues raised by Grubbs on appeal. Instead, we will address those matters that we believe contain Grubbs's most meritorious claims and those issues that are affected by cases decided since the district court's decision. ²

A. Double Jeopardy

Grubbs argued in the district court that his second trial violated the double jeopardy clause of the Fifth Amendment. The district court determined that the disposition of this issue by the Missouri post-conviction trial court rested on an adequate and independent state procedural bar. Grubbs argues on appeal that the state procedural bar was not adequate. There may be some merit in Grubbs's argument, and we will discuss this aspect briefly, but if we cut through the procedural-bar chaff, so to speak, we find no merit in the underlying constitutional claim.

It is a basic doctrine of law that if a state court's resolution of an issue rests on a state law procedural ground that is "independent" of federal law and "adequate" to support the state court's judgment, a federal court will not review the issue in a habeas action. See Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989). The difficulty in applying this doctrine, of course, lies in determining what constitutes an adequate and independent state law ground. For our purposes, it will suffice to state two guiding principles. First, a state court's discussion resolving an issue need not be confined entirely to the state law ground: if a state court addresses the merits of a federal claim in an alternative holding, the adequate and independent state-ground doctrine will still preclude federal habeas review. See Harris, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10. Second, a state procedural rule is not adequate unless it is strictly or regularly adhered to. If a state applies its rule inconsistently, we are not barred from reaching the federal law claim. See Coleman, 111 S.Ct. at 2568-69 (White, J., concurring); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988).

The state post-conviction trial court stated the following in response to Grubbs's double jeopardy claim:

This claim is not one properly cognizable in a 27.26 motion as it is a motion which could have been properly reviewed upon appeal. Bradford vs. State, 694 S.W.2d 760, 761 (Mo.App.1985). Further, that Movant's constitutional rights were not violated by having a second trial in this instance. For the reason that the trial court's ruling was justified by manifest necessity. State vs. Franks, 702 S.W.2d 853, 856 (Mo.App.1985).

Respondent's Exhibit J, at 83 (decision of St. Francois County Circuit Court). The district court determined that the first sentence quoted above constitutes an adequate and independent state procedural bar--that is, issues not raised on direct appeal in Missouri are not cognizable if raised for the first time in post-conviction proceedings. The last two sentences, according to the district court, merely state an alternative federal law holding.

Grubbs argues that the first sentence is not an adequate procedural bar because the post-conviction trial court failed to recognize an exception to the procedural rule for double jeopardy claims. We believe that there may be some problem with the adequacy of the state-law ground. There is some indication that the Missouri courts have not consistently followed their procedural rule. ³ But there is no need for us to work through the Missouri case law to resolve the question of the adequacy of the state-law ground for the procedural bar, for in the final analysis there is no merit to Grubbs's claim that his second trial was in violation of the double jeopardy clause. As we explained in the background, Grubbs requested a mistrial after a juror in his first trial stated during a poll that the guilty verdict "was not his separate, individual verdict." Respondent's Exhibit B, at 9. This decision to request a mistrial was not a Hobson's choice for Grubbs. Under Rule 29.01(d) of the Missouri Rules of Criminal Procedure, the trial judge could have either discharged the jury or directed it to retire for further deliberations. As a general rule, absent prosecutorial or judicial overreaching--neither of which is alleged in this case--a motion by a "defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). Therefore, the double jeopardy clause was not violated by Grubbs's second trial.

B. Grubbs's Confession

Grubbs argued in the district court that his counsel on direct appeal was constitutionally ineffective, under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to argue to the Missouri Supreme Court that his confession was inadmissible. The district court determined that Grubbs had procedurally defaulted on this claim in state court and that no excuse exists to overcome the procedural bar. Grubbs does not deny on appeal that he procedurally defaulted, but he argues that the district court erred because "cause" for the default, under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), exists in his post-conviction trial counsel's ineffective assistance. We find no merit in Grubbs's...