Holt v. Bowersox, 98-2341

• Decision Date: 19 April 1999
• Docket Number: No. 98-2341,98-3095,98-2341
• Parties: (8th Cir. 1999) Thomas Holt, Appellant, v. Michael Bowersox, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 970

191 F.3d 970 (8th Cir. 1999)

Thomas Holt, Appellant, v. Michael Bowersox, Appellee.

No. 98-2341, 98-3095

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: April 19, 1999

Filed: September 21, 1999

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

Before McMILLIAN, LOKEN and MURPHY, Circuit Judges.

McMILLIAN, Circuit Judge.

Thomas Holt appeals from a final judgment entered in United States District Court for the Eastern District of Missouri denying his 28 U.S.C. 2254 petition for habeas corpus relief. See Holt v. Bowersox, No. 4: 97CV00938 LOD (Order I) (E.D. Mo. Feb. 18, 1998) (Memorandum and Order). For reversal, petitioner contends that the district court erred in denying his petition because there was insufficient evidence in the record to support its conclusions. For the reasons discussed below, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

Jurisdiction was proper in the district court based upon 28 U.S.C. 2254. Jurisdiction is proper in the court of appeals based upon 28 U.S.C. 1291 and 28 U.S.C. 2253(a). The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

BACKGROUND

The following discussion of the factual background of this case is based largely on the parties' briefs on appeal, medical records submitted by petitioner to the district court, and the district court orders entered below, because no portion of the state record was submitted to the district court or to this court.

In 1987 petitioner pled guilty to murdering his step-father and was sentenced to life imprisonment without possibility of parole. According to medical records petitioner submitted to the district court with his petition, petitioner began showing signs of mental illness as soon as he arrived in prison. The first psychiatric report in the record on appeal, dated August 6, 1987, diagnosed petitioner with schizoaffective disorder. See Appellant's Addendum at 11 (App. Add.). It reported that, upon arriving at the prison, petitioner requested to be placed in protective custody because he believed he was being threatened, although he could not name who was threatening him. See id. The report stated that petitioner believed he was James Bond, on loan to the United States from the United Kingdom, living in Washington, D.C., and receiving direct aid from the President, and that he believed his nurse was Nancy Reagan. See id. at 12. The report also noted that petitioner believed his mother had moved to St. Louis from London and that her husband had been killed "in the war." Id. at 11. In addition, it noted that petitioner believed the year was 1986 and that he "was not oriented to time, place, or date." Id. at 12. The report also noted that petitioner had been sexually and physically abused by his step-father and that petitioner had trouble with his family because he was the result of a rape of his mother. See id. at 11. Finally, the report. states that petitioner's "present medication, namely Haldol," should be gradually increased to control petitioner's "psychotic thought process." Id. at 12.

The next psychiatric report in the record, dated December 1990, shows a diagnosis of chronic undifferentiated schizophrenia and dysthymie disorder. See id. at 13. It also indicates that, in the fall of 1990, petitioner was placed on lithium in addition to Mellaril, which he had already been taking. See id. In late 1990, petitioner was also prescribed Artane to ease side effects of the other medications. See id. Two reports in 1992 and 1993 describe petitioner as generally responding well to medication and working as a tutor in the prison school. See id. at 14-15. However, in 1994 and 1995 petitioner's medications were changed due to cardiotoxic problems. He was removed from lithium and placed on Depakene, Klonopin, Ativan, and a reduced dosage of Mellaril in addition to Tagamet and Mylanta for GI distress. See id. at 22. Beginning in 1994, petitioner's diagnosis again is characterized as schizoaffective disorder. See id. Five reports from 1995 document a deterioration of petitioner's mental health, including anxiety attacks, delusions, auditory and visual hallucinations, and some bizarre behavior and thinking. See id. at 17-22. The record on appeal contains no reports after December 1995, but in his brief, petitioner alleges that he continues to be mentally ill.

The parties agree that petitioner did not seek post-conviction relief within the time provided by the Missouri rules for seeking post-conviction relief. The district court found petitioner was required to file a motion for post-conviction relief by July 1988. ¹ See Holt v. Bowersox, No. 4:97CV00938 LOD, slip op. at 2 n.1 (Order II). (July 14, 1998). However, in 1996, petitioner apparently filed a state habeas petition which was denied. Petitioner initiated this federal habeas corpus action pro se on April 2, 1997, in the District Court for the Western District of Missouri, but the case was transferred to the Eastern District of Missouri. To his pro se petition, petitioner attached the psychiatric reports summarized above. In its answer, the State alleged that the petition should be denied because petitioner had procedurally defaulted his claims when he failed to pursue post-conviction relief in state court within the required time period. The State provided no portion of the state court record nor any information about the location or contents of the state court record with its answer.

The district court denied the petition. Based on petitioner's concession that he had not filed a timely post-conviction relief motion, the district court found that petitioner had procedurally defaulted his claims. See Order I at 2. Furthermore, the district court found that petitioner did not prove cause and prejudice. The district court rejected petitioner's two proffered grounds for finding cause: mental incapacity and ineffective assistance of counsel. It rejected the ineffectiveness of counsel because petitioner had never had post-conviction counsel and because there is no right to post-conviction counsel. See id. at 3. It found that mental illness could not constitute cause for default because, since petitioner's medical records indicated that he had undergone psychiatric evaluation prior to trial, he "[could] not argue that the factual or legal basis for his claim was not reasonably available to demonstrate cause to excuse his default." Id. at 3. Furthermore, the district court rejected petitioner's assertion that mental illness caused his default because it held petitioner had failed to make a conclusive showing that mental illness prevented him from complying with the state post-conviction relief procedures. See id. at 2-3. In addition, the district court rejected petitioner's claim that he was actually innocent because his guilty plea was not knowing, intelligent, and voluntary due to mental incapacity. The district court also based this conclusion on the statement in petitioner's August 1987 medical report that petitioner had been evaluated prior to trial, showed no psychosis and was held responsible for his crime.² See id. at 3-4.

Subsequently, petitioner filed a pro se motion to vacate or in the alternative for permission to appeal in forma pauperis. See Order II. Petitioner brought the motion under Fed. R. Civ. P. 60(b)(3) alleging that the State committed fraud or misrepresentation by claiming in its answer to his petition that, in Missouri, habeas corpus relief is unavailable to attack a guilty plea if the defendant fails to pursue post-conviction relief. See id. at 2. The district court denied petitioner's motion, holding that the State's argument was not fraudulent because failure to pursue post-conviction relief bars Missouri habeas corpus relief, except in rare and exceptional cases where fundamental fairness requires otherwise. See id. at 4 (quoting State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo. banc 1993) (quoting State v. Tolliver, 839 S.W.2d 296 (Mo. banc 1992))). The district court determined that petitioner's case did not fall within this exception, thus rejecting his claim that mental illness rendered him incompetent to enter a guilty plea. See id. at 4-5. In doing so, the district court again relied on the August 1987 medical report, finding that since it showed petitioner had been evaluated prior to trial, his competency was not the kind of new evidence for which the Missouri courts make exceptions to the general rule against hearing procedurally barred claims. See id. at 5. The district court also denied petitioner's motion to proceed on appeal in forma pauperis. See id.

The district court denied petitioner's application for a certificate of appealability (COA), and petitioner timely appealed. This court granted petitioner a COA on the issue of whether he had procedurally defaulted his claims, and appointed counsel to represent petitioner on appeal. For the reasons discussed below, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

DISCUSSION

"We review the district court's legal conclusions de novo and its factual findings for clear error." Wilkins v. Bowersox, 145 F.3d 1006, 1011 (8th Cir. 1998) (citing Miller v. Lock, 108 F.3d 868, 870) (8th Cir. 1997)). We defer to a state court's findings of fact to the extent they are fairly supported by the record. See id. (citing Pryor v. Norris, 103 F.3d 710, 712-13 (8th Cir. 1997)).

Petitioner argues that the district court erred in denying his petition for habeas corpus relief because its conclusions were not supported by the record. Specifically, petitioner argues that the district court erred in: (a) finding that his mental illness did not constitute cause and actual prejudice excusing his procedural default, (b) rejecting his actual innocence argument that his procedural default should be excused...